Ms. Faccone is a partner in the Business and Financial Services practice group at McCarter & English, LLP. Ms. Faccone focuses her complex commercial litigation practice in the area of e-Discovery and all aspects of data preservation, privacy and records retention, both legal and technical. She is co-chair of McCarter & English’s e-Discovery committee, an active member of The Sedona Conference and serves as the Chair of the Firm’s Women’s Initiative Steering Committee. She can be reached at 973.848.5376 or firstname.lastname@example.org.
In a scene from the 1998 romantic comedy, You’ve Got Mail, Joe Fox, aka Tom Hanks advises his AOL internet pen pal, Kathleen Kelly played by Meg Ryan, how to fight to keep her small business alive. Unbeknownst to Joe, Kathleen’s small bookstore is only now in jeopardy of being forced out of business because he opened his discount chain, mega bookstore right in her neighborhood. To inspire Kathleen, Tom quotes from The Godfather, “’It’s not personal, it’s business. It’s not personal it’s business.’ Recite that to yourself every time you feel you’re losing your nerve. I know you worry about being brave, this is your chance. Fight. Fight to the death.” When the two finally meet in person, Kathleen learns that it was her internet pal who was responsible for putting her out of business. Joe apologizes and tells her, “It wasn’t personal.” Kathleen responds: “What is that supposed to mean? I am so sick of that. All that means is that it wasn’t personal to you. But it was personal to me. It’s “personal” to a lot of people. And what’s so wrong with being personal, anyway? . . . Whatever else anything is, it ought to begin by being personal.”
And that, in a nutshell, ladies and gentlemen is what social media is all about–it’s personal communication, relationship building. And because it is personal is precisely why social media as an industry, and social force, has been so successful. But it is also for that same reason that social media has been problematic for both organizations and individuals alike who, while trying to capitalize on the benefits of social media, also find themselves mired in a conundrum when it comes to deciding how much is too much when it comes to getting personal. We’ve all heard it, we’ve all spoken similar words, “the line between professional and personal communications is blurred when it comes to social media.” It’s fuzzy for sure. But at a time when social media is truly in its infancy, there’s no magic lens that can clarify the distinction, or as we lawyers say, there is no bright line rule for what is business and what is personal. So now what do we do?
There is no dearth of advice out there for individuals and organizations on how to maintain boundaries and still utilize the tools and technology for their intended purpose–make connections with people. Just Google “personal,” “professional,” and “social networking” and you get 236 million hits.
For individuals, the challenge is how to treat social media contacts like acquaintances or friends while maintaining a professional persona. Widespread conventional wisdom appears to be to separate when, where and how to use social media according to the purpose–if necessary maintain accounts on different sites. Of course that is no guarantee that fuzziness will not creep back in if it turns out, for example, a good friend, who’s also a Facebook friend, is also a work colleague. But total separation is not the answer as it just may prevent individuals from connecting with that next client, business referral or a potential job offer.
For organizations, it’s understanding how important a social media strategy is to the company–who is the target audience, is social media the best way to reach that audience and who at the organization will be responsible for communicating through social media. Speak with a unified voice, even when spokespeople may be many. And decide: is the organization committed to listening and working with customers in a forum preferable to the customer base even if that means living with a certain amount of ambiguity?
Sometimes these two groups are at cross-purposes. Employees want anonymity from their employers in their purely personal actions. Employers want to make sure that their employees are not engaging in activity that could harm their business or brand. At this point it becomes almost necessary to throw the “hot” buzzword “privacy” into the mix. Issues formerly simmering on low heat are currently on their way to boiling over. What are an employee’s right to and reasonable expectation of privacy? What are an employer’s right and obligation to regulate behavior and control the flow of information on their company’s products and services?
Recently, the American Civil Liberties Union requested that the Maryland Department of Public Safety and Corrections cease and desist enforcing a policy that requires applicants for employment with the Division, as well as current employees undergoing recertification, to provide all their social media account user names and passwords for use in employee background checks. In a letter dated January 25, 2011, the ACLU alleged that this policy not only violated the SCA and the Maryland state equivalent but also constituted an invasion of privacy “and arguably chills employee speech and due process rights protected under the First and Fourteenth Amendments to the U.S. Constitution.” Shortly after receiving the ACLU’s letter, the Department suspended the policy for “further review.” On April 6, 2011, the Department responded by letter to the ACLU partially describing the DOC’s revised policy which provides that candidates for jobs and recertification have to sign a form saying that they understand it is “voluntary” for them to provide access to their social media accounts during interviews. The ACLU was not persuaded, opining that it will be virtually impossible for an applicant to prove that not giving up their password is the reason they were not hired, if that is the case. And practically speaking, if the policy is truly voluntary, and if it is true that no negative inferences will be drawn from the social media activity, then why bother?
According to the ACLU, what is also troublesome is that the revised policy does not take into account the privacy rights of the Facebook “friends” whose privacy rights are ostensibly invaded by the government without their consent. These unsuspecting third parties are offered no opportunity to object to the government’s intrusion, yet by virtue of their private electronic communication with the applicant, their photographs and postings will be exposed to government scrutiny, just as are the applicant’s communications. The ACLU believes this violates their privacy and cannot be allowed. But do they have a reasonable expectation of privacy in their social media posts? What steps have they taken, if any, to obtain such a reasonable expectation? What will the courts say when faced with a similar question? And if that weren’t enough, to quote John Cusak in the 1985 classic The Sure Thing, “Who invented liquid soap and why?” There are clearly many more questions than answers in the slippery slope of personal privacy in social media.
In contrast, and by way of example, other courts have found that employees did not have a privacy interest in personal e-mail exchanged using company equipment. In Holmes v. Petrovich Dev. Co. LLC, the California Court of Appeal found that the plaintiff had no expectation of privacy when sending emails to her attorney using her employer’s business email system. Significantly, the court based its holding on the policy the employer had in place and the plaintiff’s knowledge of that policy. Certainly, having a specific, thoughtful–and not otherwise illegal–policy will help protect employers and put employees on notice that their social media activity may be subject to the requisite amount of scrutiny to protect the organization.
So where does that leave us now? First, as social media continues to develop, so, too, will the interpretation of how it should be handled from a legal perspective. In the mean time, however, all forms of social communication need to co-exist. The two are not mutually exclusive–and that is why social media works. The most successful professionals make their business colleagues feel important, valued and that the relationship is enduring. They make their business colleagues feel like friends. That concept is not new. And at a time where many lament the lack of face-to-face communication, or that it’s impossible to get a live person on the phone, social media is bringing the human element back into communication, albeit electronically. So all of us need to learn to live comfortably on the edge and embrace the blur.
It shouldn’t be that hard if basic, simple rules is followed. For individuals: be smart. Be a grown up. Be respectful. Act professionally. For organizations–act responsibly. Treat people with respect. Have a strategy. Inform and be informed.
Or when in doubt follow the advice of the Godfather: “Leave the gun. Take the cannoli.”
 Md. Courts & Jud. Proc. Art., § 10-4A-01 et seq.
 2011 Cal. App. LEXIS 33 (Jan. 13, 2011)
 Id. at 48-49; accord Scott v. Beth Israel Med. Ctr., Inc., 2007 WL 3053351 (N.Y.Supp. Oct. 17, 2007).
Filed under: Uncategorized Tagged: | Alitia Faccone, american civil liberties union, data preservation, DOC, eDiscovery, info gov, Information Governance, legal, McCarter & English, privacy, records, social media, social networking