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The medium is too large.

The medium is too large. Employee Relations in the age of social media. The first amendment and social media. It all started with the 18 th century analog of social media—the independent newspaper.

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The medium is too large.

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  1. The medium is too large. Employee Relations in the age of social media. Hogan, Sarzynski, Lynch, DeWind & Gregory LLP

  2. The first amendment and social media • It all started with the 18th century analog of social media—the independent newspaper. • The colonial Governor’s attempted to shut down a newspaper by throwing its only skilled printer in jail. It didn’t work.

  3. The Court’s View of Social Media and protected speech • “[I]t is probably safe to assume that Samuel Adams, Benjamin Franklin, Alexander Hamilton and Thomas Jefferson would have loved to tweet their opinions as much as they loved to write for the newspapers of their day (sometimes under anonymous pseudonyms similar to today's twitter user names). Those men, and countless soldiers in service to this nation, have risked their lives for our right to tweet or to post an article on Facebook; but that is not the same as arguing that those public tweets are protected. The Constitution gives you the right to post, but as numerous people have learned, there are still consequences for your public posts. What you give to the public belongs to the public. What you keep to yourself belongs only to you.”People v Harris, 36 Misc. 3d 868, 878 (N.Y. City Crim. Ct. 2012)

  4. The Court’s View of Social Media • Social media web sites, such as Facebook and Twitter, exist to allow individuals to interact with "real world"  friends, relatives and those individuals sharing common interests that may be as close as your own town, or as far away as a distant continent…Whether these broadcasts take the form of "tweets," or postings to a user's "wall," the intent of the users is to disseminate this information. • Judge Matthew Sciarrino pointed out in his decision concerning an "Occupy Wall Street" protestor charged in the Criminal Court of New York County that, [i]f you post a tweet, just like you scream it out the window, there is no reasonable expectation of privacy.Fawcett v. Altieri, 38 Misc. 3d 1022, 1025 (N.Y. Sup. Ct. 2013) Hogan, Sarzynski, Lynch, DeWind & Gregory LLP

  5. Employees Say the Darndest Things The free speech rights of school employees are not violated when a school district imposes discipline on such employees for directing ethnic slurs or disparaging comments towards students in class … Matter of Watt (East Greenbush Cent. Sch. Dist.85 A.D. 3d 1357, 1359 (N.Y. App. Div. 3rd Dept., 2011) Hogan, Sarzynski, Lynch, DeWind & Gregory LLP

  6. Employees Use Social Media • On June 22, 2010, a New York City public school student fatally drowned during a field trip to the beach. (Id.). On June 23, 2010, after the school day was over and petitioner was at home, she posted the following on her Facebook page:  "After today, I am thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS!They are the devils (sic) spawn!" One of her Facebook friends then posted, "oh you would let little Kwame float away!" to which petitioner responded, "Yes, I wld (sic) not throw a life jacket in for a million!!" (Id.).Matter of Rubino v. City of New York, 34 Misc. 3d 1220(A), 1220(A) (N.Y. Sup. Ct. 2012) Hogan, Sarzynski, Lynch, DeWind & Gregory LLP

  7. Emerging trends in social media investigation • Insurance defense lawyers have blazed a trail seeking disclosure of social media content to oppose claims of disability and severe injury. • For example, in Jenningsv. TD Bank2013 N.Y. Misc. LEXIS 5085; 2013 NY Slip Op 32783(U), the Court granted full disclosure of the Plaintiff’s Facebook account after an internet search revealed photographs of the “disabled” Plaintiff on a cruise ship.

  8. Monitoring Social Media May Get Harder • A8890/S1701( in committee): 2. (a) An employer, employer's agent or representative, or its designee shall not require any employee or applicant to disclose any log-inname, password or other means for accessing a personal account orservice through an electronic communications device. Hogan, Sarzynski, Lynch, DeWind & Gregory LLP

  9. No Exceptions • The pending bill has no carve outs for employers in investigation of employee misconduct. • Violations are punishable by fine of $300 for the first one and $500 for each violation thereafter. • But it isn’t law-yet. Hogan, Sarzynski, Lynch, DeWind & Gregory LLP

  10. The anonymity arms race • Digital tools to prevent discovery of the user’s identity and usage. • In private (ie) or incognito (chrome) browsing, Private Window (Firefox), private Browsing (Safari). When enabled, these tools prevent recording of the session in the browsing history and erase all information on sign off.

  11. The anonymity arms race • Proxy and VPN’s • TOR (the onion router) https://www.torproject.org/ “Using Tor protects you against a common form of Internet surveillance known as "traffic analysis." Traffic analysis can be used to infer who is talking to whom over a public network… It can even threaten your job and physical safety by revealing who and where you are.”

  12. The anonymity arms race • Hidemyass.com:http://www.hidemyass.com/vpn/ “Connect to our VPN service to anonymously encrypt your internet activity from prying eyes. All applications on your computer that utilize your internet connection will become anonymous with just a click of a button; no technical experience is required due to our easy to use VPN software. Enjoy internet freedom and anonymity knowing that your sensitive web traffic is securely hidden behind 76'500+ IP addresses located in 158 locations in 75 countries.”

  13. What About Sexting • UNITED STATES OF AMERICA, Appellee, v. JOHN PUGLISI, Defendant-Appellant • Defendant John Puglisi, 31, of Endicott, New York and a former Newark Valley High School teacher, was sentenced in Binghamton federal court to 15 years in federal prison and a life term of supervised release to follow the imprisonment term. Puglisi had been convicted and found guilty after a five-day jury trial held in federal court. He was convicted of production and attempted production of child pornography; persuading, inducing, and enticing a minor to engage in sexual conduct; and possession of child pornography. FBI.com Hogan, Sarzynski, Lynch, DeWind & Gregory LLP

  14. What About Sexting • To convict Puglisi of attempted production and production of child pornography under 18 U.S.C. § 2251(a), the government was required to prove that "(1) the victim was less than 18 years old; (2) the defendant used, employed, persuaded, induced, enticed, or coerced the minor to take part in sexually explicit conduct for the purpose of producing a visual depiction of that conduct; and (3) the visual depiction was produced using materials that had been transported in interstate or foreign commerce. Hogan, Sarzynski, Lynch, DeWind & Gregory LLP

  15. What About sexting? • In this case, Puglisi's conviction for violating 18 U.S.C. § 2251carries a statutory minimum sentence of 15 years' (180 months') imprisonment. See18 U.S.C. § 2251(e) • He lost the appeal, he lost his family, he lost job, he lost his teaching certificate and he lost his freedom. Hogan, Sarzynski, Lynch, DeWind & Gregory LLP

  16. A policy might help. • NYC DOE has a good one http://schools.nyc.gov/NR/rdonlyres/BCF47CED-604B-4FDD-B752-DC2D81504478/0/SMG_FINAL_20130415.pdf

  17. A policy might help • Some of the good parts of NYC DOE policy: • Defines social media; • draws a distinction between professional and private use; • Prohibits social media contact with students; • Warns employees “Personal social media use, including off-hours use, has the potential to result in disruption at school and/or the workplace, and can be in violation of DOE policies, Chancellor’s Regulations, and law.”

  18. What About FOIL? • [W]hen a public officer or employee uses a personal computer or laptop in the course of his or her official duties, logs involving the use of that computer, in our opinion, would be relevant to the performance of that person's duties. On that basis, we do not believe that disclosure would result in an unwarranted invasion of personal privacy with respect to an officer or employee serving as a government officer or employee.  COOG Opinion Number 18971. Hogan, Sarzynski, Lynch, DeWind & Gregory LLP

  19. What About My Private Email? • From my perspective, email kept, transmitted or received by a school board member or school district employee in relation to the performance of his or her duties is subject to the Freedom of Information Law, even if the official uses his/her private email address and his/her own computer. COOG Opinion Number 17045. Hogan, Sarzynski, Lynch, DeWind & Gregory LLP

  20. What about SARA ED-1 • The State Archives and Records Administration devoted a portion of its website to social media. http://www.archives.nysed.gov/a/records/mr_social_media.shtml

  21. What about SARA ED-1 • “By law, you must ensure that records are accessible and are retained for the duration of their retention periods. This means you will usually need to manage most records—except for records with very short retention periods—in your own technical environment. • Consider how frequently you will need to capture information. This will depend on how frequently the content changes, the quantity of the content, the stability of the networking site, and the functionality of the tools available for extracting the information from the site.”

  22. Social media and defamation law. • The Communications Decency Act of 1996 (47 USC 230 et seq) provides immunity to interactive computer services from civil liability for defamatory content. See, Finkel v. Facebook, Inc., 2009 NY Slip Op 32248(U)

  23. Social media and defamation law. • To be actionable, a statement of fact is required, and "rhetorical hyperbole" or "vigorous epithet" will not suffice. • Only facts "are capable of being proven false." Finkel v. Dauber, 29 Misc. 3d 325, 328-329 (N.Y. Sup. Ct. 2010)

  24. Social media and defamation law. • Context is key, as assertions that a person is guilty of "blackmail," "fraud," "bribery" and "corruption" in certain contexts could be understood as hyperbole or epithet. "The infinite variety of meanings conveyed by words--depending on the words themselves and their purpose, the circumstances surrounding their use, and the manner, tone and style with which they are used--rules out . . . a formulistic approach.” Finkel v. Dauber, 29 Misc. 3d 325, 328-329 (N.Y. Sup. Ct. 2010)

  25. Social media and defamation law. • Determining whether a given statement expresses fact or opinion is a question of law for the court and one which must be answered "on the basis of what the average person hearing or reading the communication would take it to mean" (Steinhilber v Alphonse, 68 NY2d at 290). Finkel v. Dauber, 29 Misc. 3d 325, 328-329 (N.Y. Sup. Ct. 2010)

  26. The End! • John Lynch Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP P.O. Box 660 Binghamton, NY 13902 tel: 607-797-4839 email: jlynch@hsldg.com Twitter: @hsldg1 Hogan, Sarzynski, Lynch, DeWind & Gregory LLP

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