Workplace Social Media Privacy – Misunderstandings, Legislation and the Constitution, Oh My!

social media privacy image

How many of them are tweeting about their company?

Privacy has definitely been on my mind lately.  Social media privacy, specifically, continues to confuse both strategists and commentators.  A recent article by Jane Susskind asked the question if legislation can keep up with technology.  Simple answer is no.  The larger problem was confusing constitutional rights and the rights you have with your employer.  This article, and most others continue to empower users to feel that they have privacy expectations in social media.  The situation is so much more complicated than that.  Like it usually is with the law.

Quick disclaimer.  This post is going to talk about US privacy concepts and US law.  I am not skilled or experienced enough to properly comment on European law in this area.  Except to again point out that privacy in the United States was a legal invention created by judges, and privacy in Europe is enshrined as a basic human right.  With the latter, the privacy protections in place against both the government and corporate spying are generally in agreement.  Okay, I got that out.  Let’s go.

Constitutional Law 101

The US Constitution and its amendments (generally considered by the non-legal public to be the actual constitution) were created to prevent governmental power from intruding on personal power and space.  The British, before the revolution, would quarter soldiers with colonials.  So we have the 3rd Amendment – “Prohibits the forced quartering of soldiers during peacetime.”  Seems like a quaint protection in 21st Century America, doesn’t it?

You have no rights in your workplace that are enshrined in the US Constitution.  None!  Look at the freedom of speech, the 1st Amendment.  BusinessWeek, in the lead-up to the 2012 US elections wrote a pretty good piece about how you don’t have this freedom in the workplace and highlighted a few examples.

Given this background, why would anyone think that the 4th Amendment applies with regards to your employer.  It doesn’t.

Social Media Right to Privacy

2012 and 2013 have been the years of social media privacy legislation.  State after state has enacted a law that prevents employers from requiring employees to hand over their account credentials.  Legislation is sometimes a reaction to horror stories.  Stories about employers requiring passwords in their application paperwork.  Or, during an interview, requiring a candidate to log in so the interviewer could then look over the shoulder.  There are problems with this practice, even absent this legislation.

Asking for access to private postings or account profiles is a bad, bad idea.  It just feels bad, doesn’t it.  Employers don’t ask for private journals.  Why is this different?  For a much longer, more legal reasoning why this is a really bad idea, read Chris Leh’s (of Littler Mendelson) article.

Let’s get back to the article I lead with.

Fourth Amendment Doesn’t Apply to Your Employer – Get Over It

When legislators talk about ensuring that fourth amendment rights are protected, it doesn’t apply directly to the corporate setting.  While I think that requiring passwords as an employer is a bad idea, what about capturing all the postings you make from company equipment.  If I post to Twitter from my company owned desktop, I have no privacy.  You signed something to that effect in your employer handbook.  Maybe still creepy, but you know about it.

What isn’t dirty, nor creepy, are public postings.  If I post something publicly, that is fair game.  Even if I post something privately to a group of friends and then they share it publicly, it is also fair game.  I won’t get that post brought back.  Once out there, it will never come back.

If You Consult on Social Media, Please Understand the Legal Side (See below though)

Watching an episode of Law and Order doesn’t qualify you to really talk about complicated legal subjects.  I am sorry to say that so bluntly.  The problem is that most don’t understand the difference between protections against the government, and protections against your employer.  If you have ever been asked a question about mitigating employee risk in social and answered, “well your employees have a fourth amendment right to privacy, so you just need to get a thick skin about their postings,” you got it wrong.  I agree that a thick skin needs to be had.  Not for legal reasons, but for practical reasons.

The Law Can’t Keep Up – But It Doesn’t Have To

I totally agree with Ms. Susskind that the law can’t keep up.  The law never has caught up.  Following the advent of photography, olde tyme photography, not camera phones, publicity law lagged.  The problem is not one of intent.  It is how law is created.  Something is invented, someone abuses it (or someone thinks they have been abused), the public calls for action (or a lawsuit is filed) and after much debate (or the lawsuit) something is written.  It is too slow of a process to ever keep up.  It Never Will!

Unless you are in the business of pushing the envelope, you shouldn’t be worried about exactly what the law says anyway.  Do the right thing.  Does it feel like what you are doing is wrong?  Would you hate it if it was done to you?  Answer yes to either one and you should stop doing it.  Why do you need a legislator to tell you that?  You are smart enough.  So, the law doesn’t need to keep up.  By the way, existing laws still apply.

However, Find Yourself a Lawyer to Help

If you work in this space, please find yourself a lawyer that you can talk to.  There are plenty of folks who understand this space enough and your business enough, and the law enough to effectively counsel you in whatever situation you are in.  Find them, buy them a coffee and just talk to them.  Heck, even ask them, if you are a small concern, to come on part time.  Yes, some lawyers aren’t cheap.  But, they are much cheaper now than they will be when you are sued or find yourself the subject of an investigation.

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