If you’re on Facebook, you’ve probably seen a few posts
warning about its default privacy settings, and how to keep everyone but
friends off of your Facebook lawn. Your
privacy settings may do more than keep your status updates and family pictures
private. They may have important legal
effects.
Any time there’s a major news story, chances are you’ll see
strong reactions on your Facebook timeline.
On June 8, 2008, a New Jersey nurse working as a paramedic posted the
following:
An 88 yr old sociopath white supremacist opened fire in the Wash D.C. Holocaust Museum this morning and killed an innocent guard (leaving children). Other guards opened fire. The 88 yr old was shot. He survived. I blame the DC paramedics. I want to say 2 things to the DC medics. 1. WHAT WERE YOU THINKING? and 2. This was your opportunity to really make a difference! WTF!!!! And to the other guards....go to target practice.
She had set her privacy settings to “friends only,” but one
of those friends was disturbed by the post and sent it on to her
supervisor. She was suspended for two
days with pay, and received a memo stating management was concerned her
comments showed “a deliberate disregard for patient safety.” Upset for being called out over a private
Facebook post, she made a federal case out of it and sued her employer.
Actually, she had a lot of complaints, which a Federal Judge
dismantled in an entertaining opinion you can read here. I’m only going to focus on her claims under
the federal Stored Communications Act, 18 USC. §§ 2701-11 (“SCA”). Enacted in 1986, a technological lifetime
ago, the SCA was intended to protect the privacy of electronic
communications. As the New Jersey court
put it:
the SCA covers: (1) electronic communications, (2) that were transmitted via an electronic communication service, (3) that are in electronic storage, and (4) that are not public. Facebook wall posts that are configured to be private meet all four criteria.
Accordingly, the court found that the SCA applied to the
private posts and suggested that the employer could be sued for using
them. The SCA has also been used to stop a subpoena of private Facebook posts. However,
there are exceptions. First, the SCA does
not apply when the disclosure is “authorized… by a user of that service with
respect to a communication of or intended for that user.”
Here, our New Jersey paramedic had shared her rant with a
friend who shared it with her employer. Everyone in the chain had "authorized" disclosure to the next person. Crying foul, the paramedic
argued that the disclosure was not “authorized,” because her friend must have
been “coerced” into giving up the post.
Apparently, he worked for the same company, and she argued that he had
been threatened by the company into spying on her. Courts have said that “coerced” disclosure is not authorized
and violates the SCA. In fact one court
said that a boss who merely asked for a Facebook password might be guilty of
coercion—up to the jury.
In this case,
however, there was no evidence that anything like that had happened. At least her “friend” could not verify that
theory, he was “traveling in an RV” and unavailable to give a deposition. The employer said they never asked for the post and was as surprised as anyone to get it. According to the court, the disclosure was authorized
by a user, the exception applied and our paramedic had no case.
This case offers a few take aways. First, if you’re a Facebook user, set your
privacy settings to “friends only.” The
same for other social media, or anything you say can and will be used against
you. If you’re an employer, beware of
using social media posts as a reason for disciplining an employee. Be sure you know exactly how the company got
the information and who provided it.
Also, don’t ask employees for social media passwords. It’s not just bad form, it might get you into
trouble. Last of all, remember the word
“friend” doesn’t necessarily mean the same thing on Facebook as it does in real
life.
No comments:
Post a Comment