Guest Blog by Fiona Causer
With the convenience and popularity of social interaction online comes critical and well-founded concerns regarding the right of citizens to personal privacy. Given that the right to privacy and freedom of speech are foundational values to promoting a free, American life, the widespread popularity of social media presents new challenges to legal professionals to defend and uphold these values. Law schools, traditional paralegal training programs and even online paralegal training programs are now burdened with the task of properly educating their students to approach and tackle these privacy issues head-on. Social networks will only continue to grow in popularity, and being that they are for-profit ventures, the public cannot depend on them to protect its privacy.
Most social networks include in their Terms of Service agreements provisions for ownership of data. More often than not, companies that own social networks own the user data published and accessed through them. The data in question could be as innocuous as friend lists, interests as they relate to advertising and patterns of Internet activity. However, the ownership by social media companies of other, more personal data presents complications regarding First and Fourth Amendment rights.
When a Facebook user establishes an account, their date of birth, relationship status and partner (and therefore, sexual orientation), contact information and work history are requested. Input of each of these identifiers is optional, but in the context of interacting with friends and family, the request seems harmless enough.
However, disclosing this information can lead to legal challenges down the road. When a user uploads a photo, mentions a problem at work or admits to witnessing or committing a crime, identifying information can be used by employers and law enforcement to conduct an investigation without knowledge of the investigated, presenting two issues of legal concern: unnecessary search and seizure, and impingement on Freedom of Speech.
Questions about social media and free speech first gained national attention in cases where employees of private institution faced punishment or termination for comments made or pictures posted on social sites, including Twitter, Facebook and MySpace. First Amendment rights are limited in the private sector, and companies have no obligation to protect Freedom of Speech as it relates to the workplace, as addressed in an article on the Employment-at-Will Doctrine by the University of Washington Law Review. But recent cases involving teachers at public institutions have raised questions regarding the use of social media to identify teachers with controversial views and target them.
Viki Knox, a New Jersey teacher was recently investigated for making anti-gay comments on her personal Facebook page, directed at the general public and not toward any student or member of her school’s administration. According to Huffington Post, the speech was protected by a New Jersey anti-bullying law because the comments did not interfere with her teaching of students. But the school board pursued the investigation, ultimately seeking to terminate the tenured Knox.
A “Teacher of the Year” award recipient named Jerry Buell was reassigned then suspended from his position at a high school in Florida for posting homophobic comments to his personal Facebook page, according to Huffington Post. Buell returned to the classroom several months later.
Employers, both public and private, are increasingly turning to social media to investigate current and prospective employees. While standard background check solutions like E-Verify and credit bureau requests are still common, searching Google and popular social networks offers a quick turnaround and a level of granularity not possible with more traditional investigatory methods.
Though most social network data is owned by the site(s) hosting it, the free access of data presents problems in that information irrelevant to a given investigation may be used to determine employment eligibility: Sexual orientation, marital status, personal interests, activities during personal time, and many other traits can be used improperly by public and private employers to disqualify job candidates or target existing employees for termination. Proving in a court of law that information, legally obtained, has been improperly used in the termination of an employee is close to impossible without the testimony of witnesses present during the collection of data.
Fiona Causer is currently a student pursuing her bachelor’s degree in Legal Studies. She enjoys writing and seeks to use it as a vehicle to convey ideas and engage others in conversation about important issues of our current day and age. She may be reached at firstname.lastname@example.org.