Employment Law Update: Social Media Communications and the Law

By: Lori T. Williams, Owner/Managing Attorney, Your Legal Resource, PLLC

What happens when old law intersects with new technology?  Sometimes the laws need to be modified because they no longer make sense. That’s the case with social media and the Stored Communications Act, a statute enacted in 1986, before the internet, email, and social media existed and became an every day occurrence.

Royal Oak Employment Law Attorney, Mary Deon, explains how the Stored Communications Act applies to electronic communications and data stored electronically.  ”The Stored Communications Act addresses voluntary and compelled disclosure of ‘stored wire and electronic communications and transactional records’ held by internet service providers.  Simply stated, this Act makes it illegal for a person to intentionally access, without express authorization, a wire or electronic communication. The Act applies to certain communications stored in personal email accounts or social networking sites.  Civil and criminal penalties exist under the Act for the unauthorized access to stored communications and electronically stored data, or when authorization is exceeded. While it was not originally intended by the Act, some employees are using this Act against their former employers for unauthorized access to their personal email accounts and social networking profiles.”

Recent Case Law illustrates how this 26 year old Act applies today:

• Robbins v. Lower Merion School District: In this 2010 Federal Class Action, the Plaintiffs were two suburban Philadelphia high school students who claimed that their schools secretly spied on them, by surreptitiously and remotely activating webcams embedded in school-issued laptops the students were using at home.  Plaintiffs further claimed that this behavior by the schools violated the students’ right to privacy. The schools admitted to secretly snapping over 66,000 webshots and screenshots, including webcam shots of students in their bedrooms. The school district settled with both students.

Click here for the Complaint, and Court order for payment of fees.

• Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC:  In 2011, the United States District Court for the Southern District of New York individually fined two employees under the Stored Communications Act (SCA)for their unauthorized access to a co-worker’s Hotmail account on behalf of their employer. The username and password to the Hotmail account had been auto-saved on a company computer, and the two employees accessed the Hotmail account to look for documents proving that the employee was opening up a competing business.

The court held that the employee had a reasonable expectation of privacy in the e-mails contained in his personal e-mail account, and that there was no implied consent to access that account. In an earlier decision in the same case, the court levied discovery sanctions against the employer for the same SCA violation, precluding the employer from using the e-mails found in the Hotmail account (which proved the employee was opening up a competing business) in the litigation.

Click here to read the Court’s opinion.

• Rene v. G.F. Fishers Inc:  The United States District court for the Southern District of Indiana refused to throw out the SCA claim by a former employee who alleged that her former employer used key logging software to gain the password to her personal e-mail account, and then used that password to view various e-mails.

Click here for the Court’s 2011 opinion.

Mary Deon also noted that “relevancy not privacy is key in determining the scope of discovery of social media during litigation”.  This means that the court will allow information into evidence that is relevant to the underlying claims and the character of the parties, even if it is very personal and was intended as a private communication.

What’s posted on the internet and social networking sites isn’t considered private, and is typically discoverable, absent a valid legal exception.

The following 2 court cases illustrate this point well:

• Largent v. Reed, is a personal injury case in which the Court ordered the Plaintiff to produce her Facebook username and password to the Defendant because the information was deemed relevant to whether the Plaintiff suffered from chronic physical and mental pain, as she alleged in her Complaint.The court considered whether any privileges or privacy rights protected the information from disclosure; finding none, the court stated:

“There is no reasonable expectation of privacy in material posted on Facebook . . . When a user communicates on Facebook, her posts may be shared with strangers. And making a Facebook page “private” does not shield it from discovery . . . Only the uninitiated or foolish could believe that Facebook is an online lockbox of secrets.”

Click here to read the Court’s full opinion.

• Chauvin v. State Farm Mutual Automobile Insurance Company: Is a good example from the Eastern District of Michigan, where the Court took issue with an overly-demanding defendant. The Defendant insurance company requested access to plaintiff’s Facebook username and password, plus the contact information for all of plaintiff’s Facebook friends.

The court held that defendant failed to show that the requested information was available through less intrusive means or reasonably calculated to lead to admissible evidence. The court further held that the information sought was “so far outside the realm of discoverable information” permitted under the Federal Rules of Evidence and the statute in question (the Michigan No Fault Act), and went on to say that seeking unfettered access to plaintiff’s Facebook account and friends was “a fishing expedition at best and harassment at worst.”

Click here for the full opinion.

The law is still evolving in this area, but these cases help give guidelines to employers and employees alike about what social media communications might be admissible into evidence in a court of law.
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Mary Deon is an Employment Law Attorney in Royal Oak handling  employment disputes for employees and employers.  She reviews severance packages, termination policies, social media policies, employment and labor issues, and handles general litigation and business issues for small and medium sized businesses. Prior to co-founding Shelton and Deon, she practiced as a commercial litigator for Pepper Hamilton LLP.

Lori T. Williams is a 23 year attorney based in Birmingham, MI. She owns a legal referral and legal consulting business called Your Legal Resource, PLLC. She assists individuals and small businesses in need of legal advice or representation by connecting them with the right legal specialist for their situation. She also provides consulting services for attorneys and other professional service providers on how to generate more business through effective branding, marketing, networking, and by creating strategic partnerships. For more information, visit www.bestlegalresource.com.