Having served on the hiring committee at my law firm for many moons, and having interviewed law students for far too many years to admit to in a public forum, I was struck by this article:
While most of the focus has been on the marketing potential of data captured by Internet data companies such as Experian and Rapleaf, not many users of social networking sites have yet considered the impact of companies using it to build a snapshot of their lives for assessing credit or insurance applications or employment prospects.
Should employers be looking at Facebook pages or other social networking sites? How much of a background check is appropriate, or worthwhile? At what point does a brief perusal of publicly available information become an exercise in trying to live your own episode of the Rockford Files
This is, of course, less a question with a single answer for everyone than a question with different answers for different companies and even different states (and different positions — you might reasonably take greater care in hiring someone to handle large cash transactions than someone who will be raking your leaves). But the really critical issue raised by this article and many others like it is not, really, what anyone should individually do as an employer — different companies will make decisions based on a variety of issues some of which are unique to their industry. Instead, the issue to consider is that an entire generation (and presumably, all generations after this) is being raised in an atmosphere where mistakes are never forgotten, and oversharing is the norm.
Teenagers, by definition, are error prone. They make mistakes of judgment, and have since time immemorial. Until recently, most of those mistakes were cleansed by the passage of time. If a 19 year-old in 1956 did something foolish, in most cases they could put it behind them. In fact, if someone did something foolish at any time prior to 1995, they could probably put it behind them, so long as they weren’t going into politics.
Today’s teenagers are not so lucky. While teenagers today are just as oblivious as to the impact of their behavior as they always were, now, as the Violent Femmes might sing, there really is a Permanent Record. Worse, the permanence of the Internet appears to be largely ignored by users of social media, who don’t seem to know or care that they are potentially creating an archive of ill-advised activity for future employers (or spouses!) to peruse.
I suspect that the legal impact of this development will fade over time — when the teenagers of today are the senior managers of 2046. They’ll be able to properly empathize with those who drunk-Tweeted 140 uncomfortable characters about their date last night. In the meantime, and for the next several decades, we can expect a variety of troubling stories of jobs lost, or never obtained, because of poor social media hygiene.
In the famous Seinfeld episode The Pool Guy, George Costanza panics when confronted with the prospect of one group of friends meeting his girlfriend, Susan. He has successfully kept his relationships in independent silos, you see, and he has no idea how (or whether) they will mix together. Hilarity, of course, ensues — his “worlds collide!” as he so aptly puts it — but in your own life, hilarity may not exactly be the result when different aspects of your life are suddenly placed in uncomfortable proximity with each other.
With the rise of social media, each one of us has a choice: either engage in strict social media hygiene (using one social media platform for friends, another for business) or be prepared for work colleagues to know everything about your penchant for extreme knitting and Powerman 5000.
This is not necessarily a good or a bad thing — and whether it is a positive or a negative in your own life may depend on a whole host of factors, including the type of job you have, the age of your friends and colleagues, and the type of extracurricular activities you engage in. It is striking how — when speaking with young professionals in their early 20s — they cannot even imagine a world where work and social existence are separate. They’ve never been adults in a world where you didn’t know what your friends and colleagues were up to. The sheer quantity of texting, messaging, status updates and tweets in their lives is daunting, and they see no reason to place artificial limits on it. Conversely, older professionals (even those who are tech savvy and quite comfortable with social media) are appalled at the notion that these worlds may ever overlap.
This generational difference in the ways of social media is likely to grow even more extreme in the years to come, as ever more social media intensive kids grow into adults with communication habits wildly divergent from what we’ve seen before. Obviously, this represents an opportunity, but it also represents a danger — both for the companies involved, and the individuals who may be breaching trusts and duties without a second thought.
Thus, we should all consider how we engage with social media today — and not merely in the abstract, but in practice. Who do we “friend,” and what type of person really reads our status updates. Why are we saying what we’re saying, and do we really need to say it? These can be uncomfortable questions, but they must be asked if we are to remain calm when worlds collide.
Legally Social spent this past weekend at Blogworld New Media Expoin Las Vegas, and can safely report (a) that the world of social media remains dynamic, forward thinking and intense; (b) that people in social media still don’t think about the legal ramifications of what they’re doing as much as they ought to, and (c) Las Vegas is profoundly amusing.
I live-tweeted a several panels (you can follow me @legallysocial) but for me the most important aspect of the conference was seeing the interaction between the old social media format (which was highly informal and largely consisted of bloggers talking amongst themselves) and the new paradigm (which is far more focused on commerce, marketing and co-branding). Once upon a time, bloggers could joke about “taking the Boeing” as shorthand for selling out. Now, the idea of “selling out” is preposterous, with the word “monetize” thrown around more often than any other word including “and” “the” or “a”. Social media interaction is no longer thought of as a hobby for pajama-clad folks blogging from their basement; instead it is a sophisticated marketing tool used by the largest companies in the world (and the smallest) to develop dialogue with their customers. To be sure, the number of social media devotees focused on their hobbies and their lives remains large, but what is interesting is that this more informal world is now almost indistinguishable from the land of professional marketers.
This will lead, of course, to all sorts of interesting issues over the next few years, ranging from brand control and privacy to employment law and innovation. But right now, we should all be pleased to witness the early stages of a new communications paradigm. Web 2.0 is still less than a decade old (at most). We have many years (and many more versions) yet to come. It is an exciting time, indeed, and next year should be even better.
It comes as no surprise to see that new polls show that folks are using social media sites at work at an ever increasing rate. In fact, if any poll had shown otherwise I would have suspected it was wrong.
But is this large-scale use of social media a good thing, or a bad thing, when done by employees at work, while on the clock. As it is with most things in law, the answer is: it depends.
Are you the type of business where having your employees build social networks is a critical part of their job? For example, trying to keep sales and marketing staff off of social media, for many businesses, would be tantamount to corporate suicide. Connecting with people is what sales and marketing folks are supposedto do, and allowing them to do their job through electronic means is, in many cases, necessary. That said, does every member of the administrative staff need access to Facebook? Perhaps (depending on the type of business) but in many other cases perhaps not.
The better question, however, is this: What are you trying to accomplishby permitting access? Does the employee at issue do their job better if they are connected? Is the employee happier because of it? Will it distract them from their job, or help them do their job more effectively? Are you working in a regulated industry (like the securities industry) where social media use could present a whole bushel of additional problems? Or are you an entrepreneurial start-up where you need everyone on staff to be reaching out at all times to everyone they know?
These are the types of questions you should ask yourself regularly, becuase while there is no right answer applicable to every business, the wrong answer defnitively involves never asking the question in the first place.
Chapman’s Twitter feed offers a glimpse into how her own recruitment might work. As a real estate agent, she could gain intimate knowledge of her clients. She’d know their residences inside and out, and even be in a position to recommend where a technical agent might place a listening device. Her LinkedIn resume suggests she was a prodigious networker, attaching herself to groups like the Online Marketing Association, the eMarketing Association Network and others.
On Facebook, one of Chapman’s friends posted a news alert about her arrest and asked, in Russian, whether the Anna Chapman he knew was the same person who was caught in the dragnet. There was no reply.
When you think about it, this all makes sense. Why wouldn’t spies use social media as a way of getting insight into the real world social networks they want to infiltrate. It used to be far more difficult (at least if you believe John LeCarré) to learn the details of the lives you wanted to disrupt. Now, all you need is some diligent online schmoozing.
But this raises an interesting point that goes well beyond national security — could these same efforts be used to spy on your company, or on you?
People are shockingly careless in discussing the work they do while updating their status, or shooting off a tweet. Someone interesting in the inner workings of your organization could easily gain profound insights into your plans, your direction and your process.
Thankfully, this is primarily a matter of education. Your colleagues need to appreciate that when their personal and professional lives collideall kinds of messy things can happen. They need to be cognizant of who may be reading their postings, and apply a bit of intentionality to what they might be saying. If you are geotagging, everyone will know where you are, which may be relevant to what you are doing for your employer.
So while there’s no reason to be paranoid, there is every reason to be careful. After all, spies are everywhere, they are not as obvious as the villains from Bullwinkle, and they may be more interested in your employer’s new product than nuclear secrets.
Yesterday, the Supreme Court unanimously rejected the theory that employees have a broad right of privacy for communications made at work in City of Ontario, et al., v. Quon, et al. But the ruling itself is fairly narrow, and hints that the justices may be open to some limited privacy rights for private employee communications in the future.
This case addressed an interesting fact pattern: a police officer was issued a pager, and told he could also use it for limited personal texting. Later, after becoming concerned that most of the texting may have been of a personal nature, the police chief reviewed the texts of the plainitff (including personal, sexually explicit texts) and the offended officer sued. Because this was a government agency doing the search, the issue at hand involved the question of whether the police chief violated the employee’s Fourth Amendment rights against unreasonable searches and seizures.
The Supreme Court said no: “Because the search was motivated by a legitimate work-related purpose and because it was not excessive in scope, the search was reasonable,” said Justice Kennedy. At most, said the Court, public employees have only a limited expectation of privacy, and this was a legitimate, work-related inquiry. In the words of SCOTUSBlog:
The Court’s Quon decision permits government supervisors to examine the private texting of their employees but only if the following conditions have been met: the cell phone must be provided by the agency itself, the worker must have been told in advance that any messages they send on that equipment would be subject to auditing by management, the examination of the transcripts must be for a work-related purposes — such as determining whether the device was being used wrongly — and not to gather evidence of criminal wrongdoing, the review of the transcripts must be based on some grounds to suggest misuse, and management would be wise before looking at transcripts to delete messages sent when the worker was off duty. In checking up on workers’ use, the Court added, management need not use the “least intrusive” method of review.
It is critical, however, to note that this case dealt solely with the issue of public employees, and did not address the situation of private employers where the Fourth Amendment issues do not apply. The Court did engage in some random thoughts on the ubiquity of cell phones, pagers and other personal communication devices, and implied that their universality may create additional expectations of privacy. However, the Court declined to decide the case on anything but the narrowest grounds, leaving employers and employees to guess at how the law will develop in this area.
But regardless, there are things that you should do, either as an employee or an employer, even in the absence of Supreme Court precedent: namely, you should clarify your position so that there is no confusion later on. If there is no expectation of privacy in your workplace and on communication devices you use in the workplace, you need to know that as an employee. Conversely, if you are the employer, you will want to make sure that everyone knows the rules up front. While we await further developments in this area of the law, we should all ask for less uncertainty in our own jobs — whatever the answer might be.