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© 2008 Venable LLP

Social Media and Electronic Communications in Law Enforcement:

A Legal OverviewFrederick (“Rick”) Joyce

Chair, Communications Practice GroupVenable LLP, Washington, DC

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Pope Benedict on Social Media:

2009: Social media is a “poison that makes our

faces darker and makes us smile less, stopping

us from greeting one another or making eye

contact.”

2010: “Priests can rightly be expected to be

present in the world of digital communications …

through means such as images, videos, animated

features, blogs and Web sites.”

www.pope2you.net

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Sgt. Stedanko Cheech & Chong’s “Nice Dreams”

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Online Demographics in the U.S. (Pew Trust survey 2009)

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What are “Social Media”

Websites

Blogs: Web-based log, diary, essay

MySpace/Facebook

YouTube

Chat groups/bulletin boards

Twitter/Short Message Services/SMS/”texting”

LinkedIn/Plaxo (professional/business directories)

Social Groups/Virtual Worlds (SecondLife)/Gamers

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Social Media Statistics

Social networks and blogs are the 4th most popular online/Internet

activities, including personal email.

If Facebook were a country, it would be the fourth most populated

place in the world (larger than pops of Brazil, Russia and Japan) 

It took radio 38 years to reach 50 million listeners. Terrestrial TV took

13 years to reach 50 million users. The Internet took four years to

reach 50 million people. In less than nine months Facebook added 100

million users. 

YouTube is likely to serve over 75 billion video streams to around 375

million unique visitors during this year.

The top three people on Twitter (Ashton Kutcher, Ellen DeGeneres and

Britney Spears) have more combined followers than the entire

population of Austria.

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Facebook Demographics

35-54 year old demo is growing fastest with a 276% annual

growth rate

55+ demographic has a 194.3% growth rate

25-34 year population on Facebook is doubling every 6 months

There are 27,912,480 users 21+, representing 66.3% of all users

Miami fastest growing metropolitan area (88.5%); Atlanta (6.4%)

is the slowest

There are more females (55.7%) than males (42.2%) on

Facebook – 2.2% are of unknown gender.

Largest demographic remains 18-24 year olds (40.8%) but that’s

decreasing as a percentage of overall users.

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Social Media and Law Enforcement

Use of Social Media for Community Outreach

Use of Social Media for Assistance with Law

Enforcement (Judicial Processes/Electronic

Discovery Implicated)

Use of Social Media for Workplace or Personal

Communications (Employee Issues and Civil

Liability)

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Social Media and Legal Liability:

Liability issues similar to making a publication available to the public.

Legal liability issues include: Defamation Intellectual Property Rights (Copyright/Trademark) Trade Secrets Right of Publicity Publication of Private Facts Invasion of Privacy/Trespass California Public Records Act (“information relating to the

conduct of public’s business”)

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Constitutional Foundation for Electronic PrivacyRights:

First Amendment (freedom of speech; free press; right of the people peaceably to assemble & to petition the government for a redress of grievances)

Fourth Amendment (right of the people to be secure in their persons, houses, papers, & effects against unreasonable searches & seizures)

Common Law: “Reasonable Expectation of Privacy”

Other Common Law Privacy Rights (invasion of privacy; trespass; anti-defamation laws)

Katz v. United States (U.S. Supreme Court, 1968) (telephone/electronic communications can be protected against unauthorized searches)

But, is anything published on the Internet subject to “privacy rights?”

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Many Federal Laws w/Privacy Implications

CAN-SPAM Act Children's Online Privacy Protection Act

Communications Assistance for Law

Enforcement ActFair Credit Reporting ActGramm-Leach-Bliley Act Privacy provisions

Gramm-Leach-Bliley Act 501(b) provisions on security of customer information

Telecommunications Act

Health Insurance Portability & Accountability Act

USA PATRIOT ActU.S.-EU Safe Harbor Agreement Bank Secrecy Act & Anti-Money Laundering

RulesOFAC complianceFederal Right to Financial Privacy Act

IRS Information Disclosure Rules

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Electronic Privacy Laws

Section 705, Communications Act of 1934 (prohibits interception & disclosure of wire or wireless communications)

Federal Wiretap Act (1968)

The Privacy Act of 1974 (governs use of computerized databases)

Electronic Communications Privacy Act (1986)

Stored Communications Act (1986)

Communications Assistance for Law Enforcement Act (CALEA) (1994)

Controlling the Assault of Non-Solicited Pornography & Marketing Act of 2003 (CAN-SPAM)

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Electronic Communications Privacy Act of 1986 (cont.)

Extended wiretapping protection to cellular telephones,

private networks, & intra-company communications

ECPA was designed to address anticipated changes in

the communications industry, but, drafters did not

contemplate Internet growth.

BUT, there’s no mention of the “Internet” in ECPA, nor

Blogging, nor web-hosting, nor e-mail, nor Social Media.

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Stored Communications Act

Title II to ECPA, the Stored Communications Act (“SCA”) makes it

unlawful for a provider of an electronic communications service to knowingly

divulge the contents of a communication while in electronic storage.

Exemptions: A “service provider” may divulge electronic communications

with the lawful consent of the originator or an addressee or intended recipient

of the communication. Determining which persons or parties are the

“addressee” or “intended recipient” can be difficult, particularly with respect to

personal emails sent to or from employees.

Federal/Circuit Courts have held that the “Service Provider” exemption

allows employers to retrieve all messages stored on their own networks.

Fraser v. Nationwide Insurance (2003, 3rd Circ.) & Bohach v. City of Reno (D.

Nev 1996). Best practice would be to let employees know this.

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Public/Government Workplace vs. Private Workplace:

U.S. Constitution Protects Citizens Against “state” or government action; so; 1st & 4th Amendment claims possible vs. law enforcement offices as employers.

Absent a contract or union agreement, most private employees are “at will” & can be terminated for any reason absent some law protecting a given action (ie, whistleblowers). First Amendment gives them the right to speak, but, they can suffer consequences for their speech.

Public Employees are Different: Action by Employer of Government Workers is by Definition “Government Action”; gov’t job is a “benefit.”

Public Employees have Right to Speak About Matters of Public Concern (Pickering v. Board of Education, 391 U.S. 563 (1968) (unless the speech adversely affects efficiency or effectiveness of operations)

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Social Media and Government Workers:

Balance between right of public employees to discuss matters of public concern vs. cannot adversely impact employer’s operations or disclose confidential information (Anderson v. McCotter, 100 F.3rd 723 (10th Cir. 1996)(can’t fire public employee who speaks out against employer on a matter of public concern unless the speech adversely affects “efficiency or effectiveness” of operations)

Use of Federal Government Equipment & Time for Social Media May Violate Govt Ethics Regulations

5CFR 2635.702: Can’t use public office for private gain 5CFR 2635.703: Can’t use nonpublic information to “further private interests” 5CFR 2635.704: Can’t use govt property for “other than authorized purposes” 5 CFR 2635.705: “employee shall use official time in an honest effort to perform

official duties.”

What is Your Office’s Written Policy re: “social media”?

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Top Reasons for Employee Termination in re: Social Networks: Abuse of “official” workplace sites. See also Blakey v. Continental

Airlines, S. Ct of NJ: employer could be liable for harassing/defamatory content postings if it has “reason to know” & elect. bulletin board is “related to the workplace”

“Violating Company Policies” (poor-mouthing employer or employees)

Divulging trade secrets (US soldier fined & demoted for publishing “classified” info on his blog)

Personal blogging on company time (USDA prohibits chat rooms)

“Inappropriate” or Libelous Content (“Washingtonienne”; inflammatory or controversial commentary)

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Inappropriate Online/Social Network PostingsEmployee Disciplinary Cases:

Employee wrote a blog which contained “highly personal vituperative comments about her employers, union representatives, and fellow teachers.” Court ruled that “legitimate administrative interests” of school district outweighed First Amendment rights. Richerson v. Beckon, 2009 U.S. App. LEXIS 12870.

Court found in favor of school vs. teacher whose MySpace postings showed “unprofessional rapport with students”; school could find “disruptive” a teacher’s provocative on-line discussions with students. Spanierman v. Hughes (Dist. Conn. 2008).

Nebraska Supreme Court upheld State Patrol’s discharge of trooper discovered to have joined the Klan who participated in off-duty web discussions with Klan members. “Nebraska public policy precludes individual from being reinstated to serve as a sworn officer in a law enforcement agency if the individual’s service would severely undermine reasonable public perception that the agency is uniformly committed to equal enforcement of the law … without regard to race.” Nebraska v. Henderson and the State Law Enforcement Bargaining Council, 277 Neb. 240 (2009).

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Recent Legal Developments in Social Media:

Ricobene v. JP Morgan Chase (IL Cir Ct. 2009): Invasion of Privacy/Consumer Fraud claim vs. collection agency/car repo that posted embarrassing messages on her MySpace site, case was dismissed.

Werner v. County of Northampton (PA), 2009 WL 3471188 (3d. Cir. 2009): county coroner took death-scene photos home, his son uploaded to MySpace with disparaging caption; father of victim sued county for invasion of privacy/reputational harm. Case dismissed, photos themselves not a “false statement.”

Yath v. Fairview Clinic, 767 NW2d 34 (Ct. App MN 2009): Employee in violation of clinic’s policy posted patient’s medical file to MySpace; posting taken down in 48 hours. Court found even a “temporary” posting meets “publicity” element of invasion of privacy; but, clinic not liable for “unforeseeable” conduct of its employees.

A.B. v. State, 885 NE2d 1223 (Ind.2008): 14 yr old charged with “criminal harassment” for MySpace postings about her school principal. Court dismissed, finding “private group” postings not likely to be read by the target.

Horizen Group v. Bonnen, (IL Cir. Ct. 2010): Landlord sued tenant for disparaging tweets re: “moldy apartment”. Court: tweet “too vague” and “lacks any context.”

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Other Web/Electronic Privacy Issues:

Email: Can you monitor employee emails? Courts now generally assume that emails are monitored; “no reasonable expectation of privacy.” NLRB opinion says you can’t prohibit all non-business use of office emails as they might include union solicitations (Pratt & Whitney), but, reasonable restrictions on personal email/Internet use are ok (Associated Press).

Internet Use: Problems related to accessing public files from office vs. “private folders”; court decisions are mixed as to employee’s “expectation of privacy.”

Electronic Bulletin Boards: In Konop v. Hawaiian Airlines, an airline executive used third party access codes to access pilot/employee's "secured" website where unfavorable comments about the airline had been posted. Pilot sued airline for violation of the Stored Communications Act in that supervisors were not authorized "users" of the employee's secured website without proper authorization. 9th Cir. Appeals Court reversed lower court and sided with pilot. Other Circuits have not followed Konop.

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Have clearly defined internal rules & procedures for handling every form of electronic communications, including all Social Media.

Electronic communications/social media policies need to be in writing and should be reviewed by relevant legal authorities (e.g., document retention and disclosure policies).

They need to be explained to all employees and, where relevant, disclosed to public users.

These policies need to be routinely honored & enforced.

They need to be revised whenever new laws, cases, technologies or situations warrant their reconsideration.

If criminal conduct is suspected, court involvement may be necessary.

Best Practices for Law Enforcement re: Social Media

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Suggested Social Media Policies, Notices, Disclaimers

Disclaimers re: Not Responsible for Third Party Postings and

Content

“Take-down Policy”: Inappropriate content, unauthorized third

party content

General Disclaimer/Limitation on Liability re: Social Media content

Disclose the Stated Purpose of Your Social Media

Notice re: Public Records Requirements re: Postings

Avoid Unauthorized Use of Third Party Materials/Proper

Attribution/Protect Intellectual Property Rights

Limit Authorized Users/Managers/Editors of Social Media

Be Mindful of Privacy Implications

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