At our Annual Employment Law Seminar last week, I spoke about the “Facebook Privacy” bill that was then pending in Delaware’s House of Representatives. The bill passed the House on later that day and is now headed to the Senate. For those of you who weren’t in attendance last week, here’s a brief recap of the proposed law. Continue reading
A party’s “right to privacy” in the context of social media is the subject for numerous motions in civil litigation. The scenario goes like this: Plaintiff sues defendant, alleging injuries. Defendants seeks discovery of Plaintiff’s social-media content, such as photos, posts, and comments, in the hopes of disproving liability and/or damages. Plaintiff claims right to privacy in social-media content. Court must decide. Continue reading
Earlier this week, I wrote about the issue of threats made via Facebook constitute constitutionally protected speech. Today’s post also is about threats made via Facebook but in the context of the workplace. The case, decided by the Court of Appeals of Ohio, is timed perfectly for my road trip tomorrow to Ohio.
In Ames v. Ohio Department of Rehabilitation & Correction, an employee, a Senior Parole Officer, was sent for an independent medical exam after she posted a Facebook comment that her employer believed to be a threat. The comment was in reference to shooting parolees. The employee claimed that the comment was a joke. The psychologist who conducted the exam cleared her to return to work, finding no evidence of depression, anxiety, or mood disturbance. Continue reading
The intersection of Facebook use and Free Speech is complicated. Complicated enough, in fact, that the U.S. Supreme Court will weigh in on the subject when it decides a case it is scheduled to hear argument in today, Elonis v. United States.
The basic legal principle at issue is what constitutes a “true threat.” It is a crime to use the phone or Internet to make a “threat to injure” another person. And “true threats” are not protected as speech under the First Amendment. So, “true threats” to injure another made via Facebook can be punishable as crimes. Otherwise, the speech would be protected by the constitution and could not be considered criminal.
But what’s a “true threat?” Is that question to be answered by the “reasonable person” who would be subject to the threat? Or does the speaker have to have intended his words as a threat to constitute a criminal act?
In Elonis, the defendant was arrested after making violent threats directed to his ex-wife (and others). At trial, he testified that he did not intend to frighten anyone and compared his posts to rap lyrics. The jury didn’t buy it and found that a reasonable person would have viewed the posts as “true threats.” So now the Supreme Court will decide what the “true test” for “true threats” should be.
The legal issue may appear easier than it is. The facts of the case may make the speech and speaker less sympathetic. For example, his Facebook comments included the following about his wife, after she left with their two children:
If I only knew then what I know now, I would have smothered [you] with a pillow, dumped your body in the back seat, dropped you off in Toad Creek and made it look like rape and murder.
He later posted, “I’m not gonna rest until your body is a mess, soaked in blood and dying from all the little cuts.” And, when a court issued the wife a protective order, Elonis posted whether it was “thick enough to stop a bullet.” He also threatened to kill an FBI agent and to slaughter a class of kindergarten students, reports the LA Times.
Employers, do you know what apps your employees are using? That’s the question posed by a recent article in the WSJ. (See Companies Don’t Know What Apps Their Employees Are Using). My guess is that the answer to this important question is, “No.” Here are my top tips for how not to be the employer discussed in the WSJ article.
First, have a policy about employees’ use of cloud-based apps to save work-related documents. Consider prohibiting employees from saving work documents to cloud-based storage accounts such as Dropbox, SkyDrive, and Box.net. Also consider prohibiting employees from backing up the contents of their work laptops to cloud-based back-up accounts, such as Mozy and Carbonite. Continue reading
Employers face a serious challenge when trying to prevent employees from taking confidential and proprietary information with them when they leave to join a new employer-particularly when the new employer is a competitor. When an employer becomes suspicious about an ex-employee’s activities prior to his or her last day of work, there are a limited number of safe avenues for the employer to pursue.
Generally, an employer should not review the employee’s personal emails or text messages if they were sent or received outside the employer’s network. But what if the employee turns over his personal emails or text messages without realizing it? The answer is, as always, “it depends.” A recent case from a federal court in California addresses the issue in a limited context. Continue reading
Employees telling secrets online was the subject of yesterday’s post, Keeping Secrets on Social Media. Today’s post–a continuation of the theme from yesterday–is about “auto-expire” apps.
An “auto-expire” app is an app that enables users to set an automatic expiration date and time for social-media or other online content. There are lots of reasons one would use an auto-expire app but the three that come immediately to mind are regret, efficiency, and secrecy.
Social-media regret is nothing new. Just last summer, I wrote a post about social-media regret syndrome. Auto-expire apps like Xpire, for example, allow users to set expiring posts for Facebook, Twitter, and Tumbler.
Efficiency also is a reason to consider these apps. You don’t need to keep (or have others keep) the series of text messages exchanged about where to meet for lunch.
But secrecy, in my opinion, is the most prominent reason for the increased interest in these auto-expire apps. In the employment context, there may be security reasons for having highly confidential discussions automatically deleted forever. Apps like Wickr (branded as “a top-secret messenger), are targeted to businesses for exactly that reason. Wickr advertises that messages sent through the app contain no geolocation data and are not tracked or monitored–what’s yours is yours and cannot be accessed by the host site.
Be careful, though, about what you send through these apps–people are often surprised by the utility of having access to evidence in the form of contemporaneous posts and conversations. But, for certain exchanges, you can imagine the equally powerful utility of having an untraceable and permanently deleted line of communications.