Two recent cases (both analyzed quite thoughtfully in Eric Goldman’s blog) highlight the importance of anticipating the unintended audiences. These situations are not unique, but they provide stark reminders of why each person should be diligent about social media and its impact. The first lesson provides a stark reminder that broad complaints lose their context online. As report in the Matter of the Tenure Hearing of Jennifer O’Brien, State Operated School District of the City of Patterson, Passaic County, 2013 WL 132508 (Jan. 11, 2013), a2452-11, Ms. O’Brien was a tenured, certified elementary school teacher in the Patterson, NJ schools. O’Brien had been assigned a technology coordinator at School No. 29. The next year she found herself at School No. 21. assigned to teach the first grade, with 23 students, “[a]lmost all [of whom] were six years old. All were either Latino or African-American.” The court reports the posts:
On March 28, 2011, O’Brien posted two statements on Facebook, an internet social-networking site. The first statement was, “I’m not a teacher — I’m a warden for future criminals!” The second statement was, “They had a scared straight program in school — why couldn’t [I] bring [first] graders?”
Perhaps Ms. O’Brien was frustrated at her reassignment; perhaps this was dark humor. It was insensitive, disparaging of these six year olds, and found to constitute conduct unbecoming a teacher. Her defense that six or seven of the student were disciplinary problems or had stolen from her seems a bit non-responsive. Posting to her friends, which numbered above 300, amounted to a broadcast and resulted in her termination. She never should have made such a post. But how does she rectify it? The answer to that leads to the second incident listed on the Goldman blog. In Allied Concrete v. Lester, 2013 Va. LEXIS 8 (Jan. 10, 2013), Venkat Balasubramani writes of a dispute in which the survivor in a wrongful death action is told by her attorney’s paralegal to “to “clean up” his Facebook page because he didn’t “want any blow-ups of this stuff at trial.” While the Facebook page was subject to discovery, at least in part because the plaintiff sent a Facebook message to an attorney for the defendant. Having failed to exclude the Facebook page, the lawyer was concerned that embarrassing pictures would negatively influence the jury and affect the damage award. He should have been worried that instructing the paralegal to advise the client to destroy documents could lead to sanctions and affect the trial. In this case the sanctions were levied at $542,000 and an additional $180,000 was ordered paid to cover costs of the defendants. (Admittedly, the plaintiff made matters worse by lying about the deletion and evading the discovery requests.) While sanctions of this size should highlight the need to be cautious about what to post and when to remove the posts, matters involving federal investigations are even riskier. The Sarbanes-Oxley anti-shredding laws extend to any destruction of material related to an ongoing federal investigation. The law is extremely broad:
18 USC § 1519 – Destruction, alteration, or falsification of records in Federal investigations and bankruptcy Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.
Although enacted as part of Sarbanes-Oxley, the law does not have any limitations regarding publicly traded companies, corporate fraud – or seemingly any limitations at all. If the eventual investigation includes a federal agency or inquiry, then the knowing destruction of a record constitutes a violation. And records aren’t pressed in vinyl or lacquer. Tweets, posts, photos, and video will all be covered under the statute. A quick collection of examples serves to illustrate the point:
Individuals prosecuted under Section 1519 include: an employee of a private community corrections center, for providing an inmate with a clean urine sample and falsely completing official paperwork regarding the sample, United States v. Jensen, 248 Fed. Appx. 849 (10th Cir. 2007); a woman who destroyed a CD containing child pornography that belonged to her boyfriend after learning that he was under investigation by the FBI, United States v. Wortman, 488 F.3d 752 (7th Cir. 2007); a Pennsylvania state senator, for destroying e-mails pertaining to matters under federal investigation, United States v. Fumo, 2007 U.S. Dist. LEXIS 79454 (E.D. Pa 2007); and an ophthalmologist, for falsifying and creating false medical records in order to defraud Medicare and Medicaid, United States v. Mermelstein, 487 F.Supp.2d 242 (E.D.N.Y. 2007). — Obstruction of Justice under Sarbanes-Oxley: A Broad Reach by Michael G. Considine and Caroline Bersak Hyde
As a result, removals of Facebook pages, Tumblr photographs or other online content could result in a 20-year federal prison sentence if the content is removed after the owner of the account becomes aware that a federal agency is taking an interest in a matter relating to the post. Since the crime is committed if the removal is done pursuant to an indictment, investigation, or “in relation to or contemplation of” such a matter, once a federal inquiry could be triggered, it is potentially too late to remove the content. The obvious lesson is not to post harmful comments or embarrassing statements. The second best step is to remove harmful content to reduce ongoing embarrassment and damage while preserving the removed content for investigators. After all, nothing in the law requires a person continue an ongoing harm; the duty is to disclose to investigators and that goal can be accomplished without continuing the public disclosure. If the situation in Patterson had created interest in pursuing a federal civil rights claim on behalf of the first grade students, then suddenly the question of social media decorum easily escalates to a federal investigation. In such a case, the comments can only be removed if they are fully archived so that there is no spoliation of the evidence. If a teacher in Ms. O’Brien’s position tried to delete the Facebook account to make the situation go away, that teacher could be facing federal prison rather than merely a tenure hearing. This raises not a lesson but a warning. The overbreadth of these statutes grants far to much prosecutorial discretion and the ability to layer multiple criminal sanctions on, one-atop-another. Trivial acts may suddenly result in prosecutions for decades of potential jail time. Strong laws require predictable outcomes and equal treatment. Selective enforcement of overly broad provisions achieve no social goals. The final lesson is for employers to develop, enforce and train their staff members on the importance of both social media policies and document retention policies. Companies face challenges enforcing either policy, but when they come in conflict, employees and their supervisors can land in jail. Maybe the best time to shred that social media account is right this minute – unless, of course, there is any federal interest in investigating the content.