Legal Considerations Regarding Social Networking

1. Law Offices of Thomas M. Volz, PLLC 280 Smithtown Blvd. Nesconset, NY 11767 (631) 366-2700 FAX (631) 366-0062 tvolz@tvolzlaw.com Thomas M. Volz Anthony S. DeLuca Michael G. Vigliotta Legal Considerations RegardingSocial Networking

2. Social Network • A website where one connects with those sharing personal or professional interests, place of origin, education at a particular school, etc. • Examples: • Facebook, Myspace, Twitter, LinkedIn, Ning, Classmates.com, Flickr, Tumblr

3. Blog • Abbreviation of “Weblog” • A personal website that provides updated headlines and news articles of other sites that are of interest to the user, also may include journal entries, commentaries and recommendations compiled by the user. • Examples: • Blogger.com, WorldPress.com

4. Social Networking Sites Are a Major Part of Society • Facebook usage: • More than 1.55 billion active users • Highest Traffic 1 to 3 p.m. • 8.3 Million Fake Profiles • Average Time = 20 minutes • 42% Marketers considered critical • Photo uploads – 300 million/day

5. Terms of Service and User Agreements • By using a social networking site, you agree to abide by the terms of service or user agreements for that site. • The agreements establish the extent to which your information will become public information, explain the extent to which the site is “secured,” and provide an explanation of the user’s potential liability.

6. Facebook Terms of Service • Privacy • We designed our policy to make important disclosures about how you can use Facebook to share with others who interact with Facebook. By using or accessing Facebook, you agree to this Statement. • Sharing Your Content and Information • You own all the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. In addition . . . • When you use an application, your content and information is shared with the application. • When you publish content or information using the “everyone” setting, it means that you are allowing everyone, including people off Facebook, to access and use that information, and to associate it with you. • Safety • We do our best to keep Facebook safe, • but we cannot guarantee it.

7. Attorney General Cuomo Subpoenas Facebook • In September of 2007, Attorney General Cuomo subpoenaed Facebook over an investigation regarding representations the company makes about safety measures in place on its website. • Approximately one month later, Attorney General Cuomo and Facebook announced a new model to enforce safeguards aimed at protecting its network members. • Lesson: • Social Networking sites may not be as secure as they purport to be.

10. RECOMMENDATION: Check your profile settings regularly to ensure that they are up to date. Beware, just because your privacy settings are set to “private” does not mean that the information you post online is guaranteed to remain “private.”

11. Websites which may be used to locate social networking sites • PeekYou.com • WhoZat.com • CvGadget.com • EmailFinder.com • Pipl.com • Youropenbook.org

12. Openbook Search: “I hate my job”

13. Openbook Search: “my students”

14. Openbook Search: “NY School District”

15. Romano v. Steelcase, Inc. • Facts: • Defendant sought access to a personal injury plaintiff’s current and historical Facebook and MySpace pages and accounts, including deleted pages believed to be inconsistent with her claims. • Plaintiff had claimed injuries such as “loss of enjoyment of life.” • Defendant claims public portions of the websites show that she had an active life, including traveling to Florida and Pennsylvania during time of claimed injuries. • Holding: • Access Granted • A plaintiff who places her physical condition in controversy may not shield from disclosure material which is necessary to the defense of the action.

17. First Amendment • Congress shall make no law … abridging the freedom of speech … • Pickering v. Board of Education • Garcetti v. Ceballos • Melzer v. Board of Education • Snyder v. Millersville University • Spanierman v. Hughes

18. Pickering v. Board of Education • United States Supreme Court (1968) • Facts: • Teacher fired for writing and publishing in a newspaper a letter criticizing the Board’s and Superintendent’s information regarding tax revenues. • Holding: • Court reversed the termination and sent the case back to the State Court for reconsideration. • Pickering Balancing Test: • “Must balance the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”

19. Garcetti v. Ceballos • United States Supreme Court (2006) • Facts: • Deputy District Attorney suffered adverse employment actions (including reassignment to another position, transfer to another courthouse and denial of a promotion) after criticizing his employer in a memorandum. • Holding: • When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. • Expands Pickering: • If a public employee spoke about a matter of public concern, then the question becomes whether the government employer had an adequate justification for treating the employee differently from any other member of the general public.

20. Meltzer v. Board of Education • Court of Appeals, Second Circuit (2003) • Facts: • Teacher terminated after media reports revealed his participation in the North American Man/Boy Love Association (NAMBLA). • Holding: • The government may impose restraints on the First Amendment activities of its employees that are job-related even when such restraints would be unconstitutional if applied to the public at large. • Public employer may not use their authority simply because it disagrees with the content of the speech, but may use their authority when speech hampers the employer's public function.

21. Snyder v. Millersville

22. Snyder v. Millersville University • Eastern District, Pennsylvania (2008) • Facts: • Student teacher was denied the opportunity to obtain her teaching certificate for posts she had placed on MySpace. • She had been warned at teacher orientation to keep personal web pages free of references to students and teachers. • She ignored this directive and used her MySpace profile to communicate with students about personal matters, including posting pictures such as the “drunken pirate” photo which students could see. • Holding: • The student teacher admitted that her postings “only raised personal matters.” Since her postings did not touch on any matter of public concern it was not protected by the First Amendment.

23. Spanierman v. Hughes • District of Connecticut (2008) • Facts: • School district decided not to renew a non-tenured teacher’s employment contract after it found that teacher had been communicating with students about school-related and nonschool-related matters on MySpace. • Holding: • Court found that the majority of the matters discussed on the MySpace page were nonschool-related. • Court explained that the only school related matter on the website was a poem about the Iraq war. • Teacher did not show any connection between the poem and his termination. • Court noted that even if a connection was shown, his claim would fail because the district could show: • That they would have taken the action in the absence of the protected speech, OR • That the speech was likely to disrupt school activities, and the likely disruption outweighed First Amendment protections.

24. Richerson v. Beckon • 9th Circuit (2009) • Facts: • Richerson used a blog to discuss issues that arose in the course of employment, including making the following statements: • “Save us White Boy!” • “Mighty White Boy looks like he’s going to crash and burn.” • “What I wouldn’t give to draw a little Hitler mustache on the chief negotiator.” • Richerson sued the Director of Human Resources personally and in her professional capacity, claiming she was unconstitutionally transferred from “curriculum specialist” and “instructional coach” position into a classroom teaching position in retaliation for exercising her First Amendment rights. • Holding: • Even assuming that Richerson’s speech was of public concern and that she suffered an adverse employment action, District did not violate her First Amendment rights. • Since Richerson’s speech (a) disrupted co-worker relations, (b) eroded a close working relationship premised on personal loyalty and confidentiality, and (c) interfered with the speaker’s performance of her duties, Pickering balancing test permits district to transfer her.

25. Recommendation: avoid engaging in any speech which could impinge upon your responsibilities of being an effective teacher and role model for your students. if your speech relates to duties you perform in your official capacity then your employer may be permitted to act even if your speech was made outside of the regular work day.

26. Public Employer Access to Information • The Fourth Amendment • The Federal Wiretap Act • The Electronic Communications Privacy Act • The Stored Communications Act • New York State Penal Law Article 250: • Offenses Against The Right To Privacy

27. Fourth Amendment • The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures … • Expectation of Privacy: • Employee must have an actual expectation of privacy, and • Employee’s expectation must be “one that society is prepared to recognize as reasonable.” • Bond v. United States, Supreme Court (2000)

28. O’Connor v. Ortega • Supreme Court (1987) • Facts: • Hospital concerned about possible improprieties in Dr. Ortega’s management of the residency program, including acquisition of an Apple II computer for the program and sexual harassment of two female employees. • After placing Dr. Ortega on administrative leave, the hospital performed a thorough search of his office, including his desk and file cabinets. Dr. Ortega was eventually terminated. • The Hospital found a Valentines Day card, a photograph and a book of poetry which had been sent to Dr. Ortega from a former resident physician. When the former resident physician testified on Dr. Ortega’s behalf at his administrative hearing, the Hospital used the items to impeach her testimony. • Holding: • Dr. Ortega had a reasonable expectation of privacy in his desk and file cabinets. • Since a reasonable expectation of privacy exists, court will balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion. • Case was remanded for lower court to apply balancing test.

29. Shaul v. Cherry Valley-Springfield Cent. School District • Northern District Court of New York (2002) • Facts: • Tenured teacher was placed on unpaid suspension without pay from March 10, 2000 to June 30, 2000 after he was found guilty of having an inappropriate relationship with a female student. • Teacher claims that the school performed an unconstitutional search of his classroom. • Holding: • Search did not violate the Fourth Amendment because (a) the teacher was given an opportunity to remove personal property from the classroom before the search was performed, (b) the teacher’s desk was in a public school classroom open to students, colleagues, custodians, administrators, parents and substitute teachers. • Court emphasized the search was not of a private office and the teacher did not have exclusive use of any of the furniture in the room.

30. Electronic Communications Privacy Act of 1986 (ECPA) • Amends the Federal Wiretap Act • Title I of the Act prohibits the intentional and unauthorized interception, access and/or disclosure of any wire, oral or electronic communication • Accessing content is prohibited, accessing the names of the parties and the length of the communication is not • Exceptions • Consent • “Provider” exception • “Stored Communications” exception • “Ordinary course of business” exception • Penalties • Criminal penalties: may be fined up to $5,000, imprisoned up to 5 years, or both • Private Causes of Action (inclusive of punitive damages and attorneys’ fees)

31. Freedom Calls Foundation v. Bukstel • Eastern District of New York (2006) • Facts: • The Freedom Calls Foundation was created to build a communications network which enables men and women on active duty in the military to communicate with home free of charge. • After Bukstel was terminated from the Freedom Calls Foundation, the Foundation continued to monitor his foundation e-mail account. • Holding: • Employer did not violate the unlawful interception provisions of the ECPA because to the extent that prior e-mails sent to the former employee are stored on the Employer’s computer system, the Employer may search the stored files since the Employer provided the former employee with the ability to send and receive the emails. • Employer has the right to “intercept” because it was done in the ordinary course of business and monitoring is necessary to ensure that current and prospective Supporter and Client e-mail messages are answered in a timely fashion.

32. The Stored Communications Act • Title II of the ECPA • Prohibits unauthorized access to the contents of a communication while it is in electronic storage • Exception • Does not apply to an employer’s email • Penalties • Criminal penalties: may be fined up to $5,000, imprisoned up to 5 years for first offense, or both • Private Causes of Action (inclusive of punitive damages and attorneys’ fees)

33. New York State Laws • Penal Law Section 250, et seq. • Prohibits wiretapping and the interception or accessing of electronic communications • A violation is a Class E felony • Penal Law Section 250.25 • Illegal tampering with private communications occurs when “[k]nowing that he does not have the consent of the sender, he opens or reads a sealed letter or other sealed private communication”

34. The Taylor Law • Civil Service Law Section 209-a • Makes it an improper employer practice to “discourage union organization or to discourage an employee from participating in a union organization drive.” • See Konop v. Hawaiian Airlines, Inc. • While this case comes from New Jersey, and therefore the Taylor Law does not apply, it demonstrates how “union busting” claims could arise from information found on a social networking website.

35. Recommendation: Beware, information posted on your website may be searchable on “google” and other search engines. If your employer has a broad acceptable use policy which states that employees will be monitored or may be monitored, then your employer has placed you on notice that You do not have a reasonable expectation of privacy.

36. Acceptable Use Policy Recommendations • Distinguish between use of District systems and personal systems • Provide separate rules for each use • Lay out a non-inclusive list of Acceptable and Unacceptable uses • Consider prohibiting any communications with students via social networking sites, blogs, cell phones. • Consider only permitting communications through work sanctioned email accounts and parent’s landline telephones • State employer’s right to monitor use of District systems • Consider stating that systems will be monitored in the ordinary course of business • Include the following Disclaimer: • Pursuant to the Electronic Communications Privacy Act of 1986 (18 USC 2510 et seq.), notice is hereby given that there are no facilities provided by this system for sending or receiving private or confidential electronic communications. System administrators have access to all mail and will monitor messages. Messages relating to or in support of illegal activities will be reported to appropriate authorities. • Have employees sign and acknowledge receipt of District policy • Consider also use of a Splash Screen on District systems with “No Expectation of Privacy” message

37. Social Networking and Defamation • Transmitting information you learn on a social networking site to third parties could lead to a defamation lawsuit.

38. Defamation • A false and defamatory statement of fact • regarding the plaintiff • published to a third party; and • results in injury to the plaintiff • Libel • A defamatory statement which is written down or otherwise embodied in a permanent format • Slander • A defamatory statement which is expressed in transitory form, i.e. spoken

39. Finkel v. Dauber • Supreme Court Nassau County (2010) • Facts: • A crowd of Facebook users created a Facebook Group called “90 Cents Short of a Dollar” whose listed purpose is “just for fun” and “inside jokes.” • The Group is “secret” and did not appear on the Facebook members’ profiles. • Plaintiff claimed that the Group referred to her as the 11th cent, though her name was never used.

40. Finkel v. Dauber continued . . . • The following comments were posted on the Group: BTW the 11th cent, unbeknownst to many, acquired AIDS while in Africa . . . • Holding: • The Court found, “While the posts display an utter lack of taste and propriety, they do not constitute statements of fact.” • Since the statements were “rhetorical hyperbole,” the claims could not stand. . . . it was not from an African cruise. . . it was from sharing needles with different heroin addicts . . . I hear the 11th cent got aids when she hired a male prostitute . . .

41. Cohen v. Google, Inc • Supreme Court N.Y. County (2009) • Facts: • Professional full-time model was referred to by an anonymous blogger as a “skank,” “ho,” and “whoring,” concerning her appearance, hygiene, and sexual conduct. • Blogger.com, a subsidiary of Google, was the blog’s hosting company. Plaintiff sought to obtain information from Google which it could use in a potential defamation claim. • Holding: • Finding that there may be merit to a defamation suit, the Court ordered Google to disclose the information.

42. Recommendation: Avoid posting messages or information regarding or referring to other people on your social networking sites. You could be held personally liable for False, defamatory statements of fact about another person.

43. Social Networking and Employee Discipline • May employers discipline employees for information found on social networking websites? • What factors should employers consider before imposing discipline?

44. Employee Discipline In General • As a public employer, a school district must consider whether employee conduct impairs the district’s ability to uphold the public’s trust in government. • Factors to Consider: • Employee’s Constitutional Rights • Position held by employee • Facts and circumstances surrounding the misconduct • Whether the employee can be trusted in the future

45. Employee Due Process Rights • 14th Amendment Due Process • Notice • Opportunity to be heard • Board of Regents v. Roth (Supreme Court 1972) • Education Law Section 3020-a • Establishes a right to a hearing for a tenured school teacher may be subjected to a disciplinary penalty. • Civil Service Law Section 75 • Establishes a right to a hearing before a permanent civil service employee in the classified service may be subjected to any disciplinary penalty.

46. Payne v. Barrow County School District • Georgia District Court • Facts: • After visiting Europe, teacher posted pictures of her trip showing her drinking beer and/or wine. • Also, alleged to have used an expletive in at least one of her posts. • Teacher claims she was never told she was entitled to a hearing. • Termination - upheld.

47. Cohasset Teacher Loses Job • Facts: • The teacher thought that her Facebook account was private. • Parents of her students saw Facebook postings which teacher: • Called residents of Cohasset “arrogant and snobby” • Posted “so not looking forward to another year at Cohasset schools” • Referred to students as “germ bags” • After these postings were revealed and caused a disruption in the community, the teacher was forced to resign rather than face disciplinary action.

48. City School District of New York v. McGraham • First Department (2010) • Facts: • Teacher regularly communicated electronically with student after school. • Teacher and student conversed about personal matters. • After conversations had ceased, the teacher sent an email to the student stating: • I am not sure how we got to this place where we are not talking to each other. I think various feelings of hurt, fear, loss, anger etc. Powerful emotions that can make people act crazy even when they don’t intend to … • I want you to know I tried so hard to handle things the right way, and feel I failed miserably. Constantly telling myself one thing, and at moments being overridden by emotion.

49. McGraham continued… • Facts Continued: • After investigators responded to the teacher, posing as the student and claiming to be “confused,” the teacher responded: • I definitely relate to the chaotic mess in the head. I haven’t meant to confuse the hell out of you. I just think the situation makes it incredibly confusing. I think we have both been afraid of being embarrassed. I think we have both been afraid of a lot of things. I feel like we have been doing this dance around each other since practically the beginning of the year. • Because we both have been confused I have wanted us to talk. But that seems to create problems for both of us. When I have tried to talk to you, you seem to run a bit in the opposite direction. And my nervousness leads me to maybe not be entirely forthright. There is so much I would like to tell you, to discuss with you. But even now writing this, there is fear. You, I am sure, understand the risks involved for me. But you have no idea how happy it makes me to hear from you. And as far as where I am standing, there is only one place I would like to be standing. God, help me! So, I guess we should try to talk. I have often thought of the idea of talking over coffee or the beach or something, I don’t know how. I just didn’t know how insane the idea was. • Holding: • Arbitrator’s penalty of a 90 day suspension was upheld, Court declined to impose a penalty of termination.

50. Social Networking and Students’ Rights • The First Amendment • Tinker v. Des Moines School District • Bethel School District No. 403 v. Fraser • Hazelwood School District v. Kuhlmeier • Morse v. Fredrick