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Dealing with Opposition to Social Networking Policies, Part 2
Written by Cara Donlon-Cotton
Many law enforcement agencies have instituted, or are trying to institute, social networking policies, only to experience some backlash from line officers, union groups and/or fraternal organizations. As with any new initiative or policy, there will always be opposition and a degree of fear of change. And, as with any new initiative or policy, so long as the rationale and wording is sound, the opposition can be as noisy as it wants to be, but the policy will still stand.
In July 2010, LAW and ORDER ran a sample Social Media Policy (www.hendonpub.com/resources/articlearchive/details.aspx?ID=207930) that many agencies chose to implement. Other agencies have implemented their own version of a social networking policy, while others chose to use a different sample policy as their guide.
No matter what version you are using, you are bound to hear the same arguments: the policy violates the officer’s right to free speech (1st Amendment); restrictions to online activity violate the officer’s right to privacy and are a due process violation (1st and 14th Amendments); and the policy violates the Federal Stored Communications Act (18 U.S.C 2701).
This is the second part of a three-part series of articles addressing the three concerns listed above and offering some relevant case law and legal decisions that address these issues. Other articles in this series are available online at www.hendonpub.com—click Resources and then click Article Archives.
Right to Privacy
Some officers have claimed that their right to privacy is violated when department heads or employers look at their online activity. Many agencies are holding their officers responsible for their online activity as they would for their real-life, off-duty behavior. The argument is that their online activity, because it is speech and expression, should be private, and to monitor it would violate their rights to due process.
The freedom of speech argument was addressed in the two court cases discussed in the first article of this series. The rights to online privacy were recently addressed by the United States District Court for the District of New Jersey in 2008. In Pietrylo v. Hillstone Restaurant Group, restaurant employees were terminated after they started a password-protected chat group on MySpace that complained about their employers and customers.
The employees claimed their employers violated their privacy rights, their rights to free speech and the Federal Stored Communications Act. The jury found that the employees should not have any reasonable expectation to privacy while using MySpace, even though their established MySpace groups was “a place of solitude and seclusion which was designed to protect the plaintiffs’ private affairs and concerns.” (The employers were found to have violated the Federal Stored Communications Act, but that issue will be addressed in the next section.)
A main issue in this case was the fact that the MySpace group was password protected, and the only way people could access it was if they had received an invitation from the group founders. What happened in this case was that an employee with access to the online group gave access to the employers. One of the questions addressed was whether or not the employee who gave up her password was coerced into doing so—a key point that would help decide the Federal Stored Communications Act violation claim.
But the password issue is what can trip up any employer, government or private corporation. While you can ask what social networking sites an employee utilizes, you cannot ask for his password. Here’s an analogy: You can require your employees to list their home address with your agency, but you cannot ask for a set of duplicate keys. The address is the same as their online home; the keys are the same as their passwords. If you want access to their locked home, you can ask to be invited in…or you can have a warrant.
Consider a case from September 2010 in New York (Romano v. Steelcase Inc.): Defendant STEELCASE moves this Court for an Order granting said Defendant access to Plaintiff’s current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information, upon the grounds that Plaintiff has placed certain information on these social networking sites which is believed to be inconsistent with her claims in this action concerning the extent and nature of her injuries, especially her claims for loss of enjoyment of life.
In the decision, the court ruled the woman had to give up access to her social networking pages and quoted a law journal: “In this environment, privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking.”
The court addressed social networking platforms and their privacy policies, which basically say nothing is private. “Indeed, as neither Facebook nor MySpace guarantee complete privacy, Plaintiff has no legitimate reasonable expectation of privacy.
Furthermore, “When you use Facebook, certain information you post or share with third parties (e.g., a friend or someone in your network), such as personal information, comments, messages, photos, videos…may be shared with others in accordance with the privacy settings you select…such sharing of information is done at your own risk. Please keep in mind that if you disclose personal information in your profile or when posting comments, messages, photos, videos, Marketplace listings or other items, this information may become publicly available.”
In ruling against the woman, the court said users of social networking sites are aware their personal information will be shared with others, as that is the very nature of such sites. Thus, when the plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings. Indeed, that is the very nature and purpose of these social networking sites, else they would cease to exist.
Because the plaintiff knew that her information could become publicly available, she cannot now claim that she had a reasonable expectation of privacy. As recently set forth by commentators regarding privacy and social networking sites, given the millions of users, “[i]n this environment, privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking.”
The next article in this series will cover the Federal Stored Communications Act.
Cara Donlon-Cotton is a reformed newspaper reporter and a former course developer and instructor with the Georgia Public Safety Training Center. She currently teaches Media Relations and Public Relations to local law enforcement agencies. She can be reached at firstname.lastname@example.org or through the Public Safety Training and Education Network at http://psten.com.
Published in Law and Order, Feb 2011
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