Category Archives: facebook
Interesting developments on internet related privacy law in California. First, Governor Jerry Brown signed a bill which makes it illegal for employers to require individuals to turn over their password to their email and social media network accounts. Second, Governor Brown vetoes a bill which would require police to obtain a warrant before using cell phone or tablet computer tracking information to find an individual’s location.
Both issues involve an individuals expectation of privacy, and whether or not the information which is made available electronically diminishes that expectation. In my opinion, the reasonable divider between expectation of privacy is built on whether or not the information is made available to someone for commercial or other use.
On the issue of email and social network accounts. I would tend to look at those issues as being two separate items. In general, individuals do have a reasonable expectation of privacy in their own personal email accounts, not so with their work accounts. The content of emails is private, and no one other than the individual who has access to the account has access to that information. It is not used for tracking individuals webviewing or buying habits. The content is not analyzed for commercial use, and individuals are not shown advertisement based on the content of their emails. In otherwords, no one other than the user, uses that information. It is completely private.
In general, social networks are different, even under the strictest privacy settings, information posted on facebook and twitter is made available to (guess who), facebook and twitter. Even under their own privacy rules, social networks can and do use the information you post for commercial use. Often it is for targeting advertising, demographic studies, and other means made available to marketers for targeting and trend analysis purposes. With the signing of this bill, it appears that privacy rights with regards to employers, has been extended to include social networks. However, it has not extended the legal notion of “reasonable expectation of privacy” with regards to the governments ability to track information on social networks, or use it in establishing probable cause.
Same goes for tracking systems on cell phones. Every company you give permission to track your location on your mobile device, uses that information for some commercial purpose. So when you give goolgle maps “permission” to use your location, you may be allowing them to find out where you go and when in order to figure out your habits. This again may be used for targeting purposes.
So guess what, if you give access to a company information for their own use, even though you may think it is private, you have voluntarily dimished your own reasonable expectation of privacy. And, so if companies can use the information, in general that means the government can too.
This issue was addressed some months ago, in the news. Around the same time I was asked the same question by a reader.
Thanks to a new law signed by Governor Pat Quinn, it appears that an potential employer can no longer ask you for your facebook, or any other social media password in a job interview or as a condition of hire.
From ABC News:
Gov. Pat Quinn signed the law Wednesday at the Illinois Institute of Technology, where several students lamented that online snooping by bosses has caused some to lose out on jobs and forced others to temporarily deactivate their online profiles.
Illinois is only the second state to have such a law on the books, and it leaves no exceptions — even for openings that require thorough background checks.
I believe that this law is a step in the right direction for privacy concerns. However it does bring up some interesting questions. Does a person have a reasonable expectation of privacy in what they put on facebook? If so, what are the limitations?
I ask this primarily because of other areas of law, such as tort, where there exists a strong legal standard for privacy particularly in the home. Social Media is a different game all together. Some items you post on facebook can only be seen by “friends” others by “friends of friends”, still others, “everyone”. So where does the reasonable expectation come in? Secondarily, is the reasonable expectation of privacy dimished if a person has say “1,000″ friends, as opposed to a dozen? What about those who open their pages to subscribers? These questions will likely be answered through the courts, so only time will tell.
The internet is still the wild west in the legal profession.
I am beginning to think that Facebook scares judges because they just don’t know what to do with it. There is next to no case law on free speech and the internet. Facebook is so vacant from the judicial records that when I went to look up “facebook poke” on Lexis, I received no results.
Now comes a ruling from the United States District Court for the Eastern District of Virginia. In order to dismiss a complaint by plaintiff’s against their former employer, Judge Raymond Jackson has ruled that “liking” something on facebook is not constitutionally protected free speech.
The case of Bland v. Roberts stems from an incident where two Hampton’s Sheriff’s employees were fired, ostensibly for not supporting the re-election campaign of Sheriff B.J. Roberts. In fact they went so far as to “like” the facebook page of Robert’s opponent, Jim Adams. The two plaintiff’s in this case did not have their contracts renewed, along with 4 others out of a total of twelve, who in some way shape or form expressed support for Robert’s opponent. A few things to note. The First Amendment guarantees, amongst other things, two very important freedoms, freedom of speech and freedom of association. Supreme Court rulings have sided with both to where an individual cannot be fired for their political affiliation, and a person cannot be fired for engaging in political speech. In this case, the two plaintiff’s political speech was limited to “liking” Adam’s campaign on facebook. The judge said that this does not amount to free speech guarantees under the first amendment. In his opinion you have to do more than that.
However, the Sheriffs knowledge of the posts only becomes relevant if the Court finds the activity of liking a Facebook page to be constitutionally protected. It is the Court’s conclusion that merely “liking” a Facebook page is in sufficient speech to merit constitutional protection. In cases where courts have found that constitutional speech protection sex tended to Facebook posts, actual statements existed within the record. For example, in Mattingly v. Milligan, Mattingly posted on her Facebook wall referring directly to the firing of various employees.
So in other words, if you just like the opponents campaign, you can get fired. If you say something to support the opponent on their facebook wall, that speech is constitutionally protected. Ironically, I am pretty sure they merely “liked” the campaign because they were afraid if they did anything more they would get fired. So I guess, with your politics, be loud and proud and in your face, then you will be afforded constitutional protection… at least by Judge Jackson.
A reader from Illinois asks via facebook:
Dear Ask a Cyber Lawyer,
Is it legal to write blog postings about something I was reading in a book, if I say its from that book?
One of the services I provide through Skyles Law Group, LLC is training for journalists and bloggers on basic copyright law, so I am very familiar with copyright issues involving using outside sources.
In general, you can quote all you want from articles, as long as you cite where it is from somewhere in the article. If you are quoting from something you find online, it is a courtesy to link back to that webpage. Copyright is a tricky issue because technically, the use of copyrighted material is a violation of the owners copyright. The law has created a large amount of defenses to copyright violations, most prominently “fair use”, which allows for many exceptions where copyrighted sources can be used. Here are a few rules to follow.
1) If you block quote from an article, do not make it more than a few paragraphs.
2) In each blog post, make sure the original content is greater than the quoted content. This ads weight to the argument that the piece is an original work.
3) Again, if you cite an online source, always link back. They will appreciate the increase in SEO and traffic to their site.
4) Do not quote from Reuters or AP as a source. Reuters and AP are wire services that share articles only with sources that subscribe to their service. They are very trigger happy, and under the DCMA, it is shoot first, ask questions later. Once you get a DCMA takedown notice, you MUST COMPLY within 24 hours.
Other than that, have fun blogging!
Disclaimer: It is difficult to dispense comprehensive legal advice on the internet. If you find the information on this site interesting and insightful, great. But before you rely on any of this advice, please consult a legal professional with the specific details of your case or controversy.
In Tarrant County, Texas, a young man named Jonathan Hudson sees a girl named Courtney Downing. He probably thinks she’s pretty cute, so in an effort to get to know her, he “friends” her on facebook. This scenario takes place on college campuses, high school halways, and office buildings every day. The problem is, this is not a classroom, it’s a courtroom, and Jonathan Hudson isn’t a student, he’s a juror. The girl he attempts to friend, is in fact the defendant. From the Star-Telegram:
Hudson was a juror on a Tarrant County civil case last month when he tried to “friend” the defendant and discussed the case on his Facebook page, according to court records. The woman notified her lawyer who, in turn, told the presiding judge, Wade Birdwell.
Last week, Hudson, 22, pleaded guilty to four counts of contempt of court related to the matter. He was sentenced to two days of community service, which will be chores assigned to him by the jury bailiff next month.
Officials in the Tarrant County district attorney’s office said this is the first instance they are aware of in which a juror used social media to contact a person involved in an ongoing case.
“I’ve never seen this before,” prosecutor Chris Ponder said. “But I’m afraid this is a new reality as the technology is so ubiquitous that we’ll have these types of things occur.”
I am sure this has the virtue of never having been tried. I am sure right now, lawyers are redrafting jury instructions to include “Do not engage in social interaction on the internet with the judge, prosecutor, defendant, defense attorneys, or any witness and their families”, or something to that effect. Not every cute girl has to be your “friend”.
When I log on to facebook, it is not uncommon for me to see status updates on facebook which read “Work sucked to day”, or “I hate my job”. It’s a bad economy, people do what they need to do to survive, including taking jobs that are less than ideal. I have had many jobs that I have hated, from cleaning musical instruments at a music shop, to handling packages at a distribution center. Fortunately for me, all of those jobs were before the advent of facebook, so when I complained about work, it was usually over a beer at a bar with my buddies. In Buffalo, New York, employees of Hispanics United of Buffalo complained about working conditions on their facebook accounts. Their employers were none too pleased, and in the end, it cost them their jobs, until the National Labor Review Board steps in. From The Wall Street Journal:
In the latest complaint, an employee of Hispanics United who was scheduled to meet with management about working conditions posted on Facebook a co-worker’s allegation that employees didn’t help the nonprofit’s clients enough, the NLRB said. That post drew responses from other employees who defended their work and blamed conditions such as work loads and staffing issues.
When Hispanics United learned about the postings, it discharged the five employees who participated, claiming their comments were harassment of the employee originally mentioned in the post, the NLRB said. The NLRB said the Facebook discussion was “protected concerted activity” under the National Labor Relations Act.
The position of the National Labor Review Board historically is that labor law allows employees to discuss the terms and conditions of their employment with others. Apparently, this now includes discussing by means of social media sites. The NRLB is coming to grips with the changing world brought to us by the internet and social media. Today, maybe facebook is becoming the new bar where we complain about our jobs, except it is now BYOB, and you better not spill your drink on your keyboard, a costly party foul.
The final hearing before an administrative judge is scheduled for June, 22.
DISCLAIMER: I understand the tone of the headline of this post. THIS IS NOT LEGAL ADVICE. DO NOT SAY BAD THINGS ABOUT YOUR EMPLOYER ON FACEBOOK. Please say only nice things about your employer on facebook.