Twitter and Employment Law Issues
This is a seminar paper authored by Vincent Pascual on Twitter and potential Employment Law issues that employers and employees may face with regards to what users post online and how those posts may have consequences. The paper was produced for a course entitled “Employment Law and Technology,” taught at the University of San Diego School of Law during Spring Semester 2009 by Rich Paul, Partner at Paul, Plevin, Sullivan & Connaughton LLP, whose practice focuses on employment law.
Special thanks to Rich Paul for helping the author develop ideas for this paper as well as for course material used in this paper. Acknowledgements also go to Jerry Sherwin, Jennifer Cohen, and Rex Gradeless for contributing articles, blog postings, and ideas used as the foundation of the paper.
What is Twitter?
Twitter is a social network where one can post a short message of no more than 140 characters detailing what one is doing, what is on one’s mind, or something one finds to be interesting. Messages are referred to as “tweets”, or short, bite-sized real-time updates. Twitter can be accessed from a computer or from mobile devices such as a cell phone, BlackBerry, or iPhone. Tweeting is faster than writing a blog post or email that takes time to process. Tweets will usually only reflect an event long after the event has passed. Twitter has the intimacy of a phone call or an email, but with a 140-character limit. One can share his or her status and what he or she is doing live via Twitter.[1]
Many real-life examples illustrate how Twitter can be used to share real-time updates. People who were present in Mumbai, India during the terrorist siege of 2008 could tweet about what was occurring live.[2] This allowed Twitter users to read about events as they unfolded. A San Jose woman used her Twitter account to tell Demi Moore that she would commit suicide; this prompted numerous calls from across the country to the police. The police were able to save the woman and take her in for evaluation.[3]
People are interested in knowing what users such as their friends, real persons, corporations, politicians, and celebrities, do in their personal lives beyond their career or profession. With a blog post or email, one will likely spend more than several minutes to reflect on an event. That event will have concluded long before a blog post or email about an event is completed. Politicians might tweet about how they are heading to a campaign rally or how they feel about a vote on particular legislation. Friends might tweet about waiting in line at Starbucks, an interesting sight, how bad a service is, or how slowly traffic is moving. Celebrities might discuss their upcoming events. Technology enthusiasts might promote their latest video as well as the latest technologies.
As social media expert Jennifer Cohen says, “Twitter is about putting words in front of a face, name or business.” Twitter allows all people to have an equal medium to communicate. As soon as a user finds other users to interact and start a dialogue with, that user becomes “a real, live person representing someone or something.” Users come to know others through tweets about problems, thoughts, advice, and interesting facts. Once another user knows us, we want more users to follow us, to read our tweets, and to enjoy them and find them valuable. After proving we provide value in our tweets, we proceed to create an element of trust. [4]
How do you use Twitter?
Sign up for free on twitter.com. Twitter pages look like blog pages, but with very short posts.[5] The user’s Twitter home page contains updates from other users the user follows. A personal profile contains a record of tweets posted by the user. I can follow anyone I wish, but whomever I follow can choose whether to follow me back. Conversely, anyone can follow me if I allow it (privacy settings), but I do not have to follow the user back if the user is not interesting enough. Users can tweet about what they’re doing, what they find interesting, or links to pages they think are worth viewing.
What tools can be used to expand Twitter’s reach?
In order to fit links into a 140-character constraint, one can shorten a link by plugging the link into a URL-shortener such as TinyURL, which will provide a shorter link that connects to the original link.[6] This has been a more efficient method of sharing links while retaining the ability to express one’s thoughts.
Using TwitPic and my Twitter Username, I can post links to pictures I post on TwitPic. When I post a picture, a link to that picture is automatically broadcasted on Twitter as a Tweet. In a similar fashion, TwitterFeed allows me to broadcast a blog post to Twitter, automatically providing a link to the blog post as soon as I publish a new post.[7]
To refer to another user, or to communicate with another user, use the “@” symbol before their user name.[8] For example, if I want to post someone’s user name when referring to their tweet or if I want to retweet, or retransmit another person’s tweet, something I found interesting and worth sharing, I paste it as is and write in the prefix: “Retweeting” or “RT”.[9]
One can search for current trends and most discussed topics by using the search bar on the right-hand side of the screen and view a list of the topics users are tweeting about most frequently. One can also search for users tweeting about his or her interests.[10] In tweets, users can add hashtags in order to link them to searchable words by using the “#” symbol before the word. Examples of popular search terms and topics include #swineflu, #iphone, #superbowl, #startrek, #g20, and #obama.
How is Twitter applied in the employment world?
Cohen blogs that Twitter is used “so people can get to know you, like you, and trust you.”[11] The 140 Character Limit means a user must make his or her point(s) swiftly. A user must also entice an audience to link for more information.[12]
The business and employment uses of Twitter are myriad. Businesses such as Home Depot may use Twitter to connect with customers on a personal level outside of business.[13] Starbucks and Dell may connect with customers in order to discuss products and/or services. [14] [15] Trader Joe’s may share new ideas and products, while Rubbermaid shares how-tos and tips for organizing one’s closet.[16] [17] General Motors has used Twitter to tweet live from events showcasing new products.[18]
Twitter may be used to track trends via search.twitter.com. A business will want to know what users care most about. The business will ask some of the following questions. “How hot is my product?” “Is my PR campaign effective?”[19] Twitter allows people to become more engaged with the political process and to monitor current events closely. They may do so by following the Twitter profiles of the White House, 10 Downing Street, lawmakers, federal agencies, government officials, and public affairs journalists such as David Gregory, moderator of NBC’s Meet the Press.[20] Twitter allows public figures such as Barack Obama, Shaquille O’Neal, and Britney Spears to discuss upcoming and current events.[21] [22] [23]
Pitfalls as Related to Employment Law
Users must be careful what they tweet. Twitter is subject to vast potential liability, as is any electronic communication tool. Tweets are no different from letters, e-mails, or text messages. Tweets may be damaging and discoverable. This poses significant problems for heavily-regulated companies who are required to preserve and maintain electronic records. Examples of such companies include the securities industry and federal contractors. These companies will have an additional compliance step to handle, not even considering the potential for privileged and/or private information to be leaked out.[24]
Limit of 140 Characters
Shorter tweets are more likely to be misinterpreted. The 140-character limit allows users to fall into trouble. When a user tweets something, sometimes the user does not realize that the tweet creates a permanent record on the Internet. Tweets are quick and instantaneous sound bites. Instantaneous messages are not the most well-thought out. Someone could say something when they are angry or frustrated. Tweets not well-thought out open the door to poor judgment. Once something is tweeted, it cannot be taken back.[25] One example illustrating Twitter’s 140-character limit involves FedEx and Memphis. A marketing guru criticized Memphis, Tennessee, where FedEx is based, and when he visited Memphis, he faced the scorn of FedEx employees who are proud of Memphis despite the city’s shortcomings.[26] Another example where a tweet could be misinterpreted due to its brevity is in retweeting someone else’s already-posted tweet. This raises the question: is a user responsible for what is retweeted? Twitter user @Rex7 retweeted others’ tweets because he thought they were worth reading and worth considering. Some might misconstrue his tweets as an endorsement of the tweets’ content.[27] This raises the problem of Foreseeable Republication for Defamation. That means the person who posted the original tweet can be held liable not only for their own publication, but also for damage caused by foreseeable retweeting of allegedly defamatory statements.
Trust that (quasi-live) two-way communication engenders
Protection of Trade Secrets
Trade secrets and other company secrets could potentially be exposed via Twitter, especially via corporate profiles. Such conversations are legally binding and subject to the legal rules of electronic discovery. This means tweets could be subpoenaed. At greater peril to companies, secrets could be retweeted and publicized. One suggestion to deal with this problem is to establish guidelines under which employees may Tweet, whether from a corporate profile or a personal profile. If at all possible, employees should be prevented from or use extreme caution in tweeting from a corporate profile or network.[28]
Recall the Whole Foods scenario, where the CEO of Whole Foods disparaged another company in his blog. The blog engendered trust with the readers, who enjoy reading about the intimate and personal details about a CEO’s life.[29] Twitter engenders a greater kind of trust, because one can read someone’s thoughts at an instant point in time; those thoughts as expressed in tweets may not necessarily be well considered before editing.[30] For example, Rep. Pete Hoekstra (R-MI), the top Republican on the House Select Committee on Intelligence, tweeted about a visit to Iraq that was not to be publicized. He tweeted about what he was hoping for and what he was expecting.[31] This is analogous to revealing trade secrets in public because the United States has an interest in keeping intelligence-related information secret because to do otherwise would be to empower enemies of the U.S. Hoekstra stopped Tweeting about his visit as soon as his actions met scorn. The Pentagon has ordered a review of Twitter and other electronic devices in this fashion.[32] In another example, a juror used Twitter to discuss what he was doing in an ongoing trial.[33] The juror sent eight tweets indicating that he gave away $12 million of a company’s money in an award to plaintiffs who invested in that company and became victims of a Ponzi Scheme. The juror discussed aspects of an ongoing trial with the public. This might be cause for calling for a mistrial. In another real-world scenario, the Virginia Republican Party Chairman thwarted his own party’s coup by tweeting that a Senate Democrat would either switch parties or leave the caucus and negotiations for power-sharing were under way. However, he never figured that Democrats were following his feed, and subsequently, the Democrats said that negotiations were quashed.[34]
Privacy and Defamation
Twitter also raises privacy and defamation issues. If Twitter users have an apparent relationship with a company or product where such a relationship does not exist in reality or where a company profile might tweet to dilute a trademarked name, then there may be action for trademark violations.[35] In order to resolve such issues, rules of engagement must continue to be created regularly. Twitter is part of a new frontier where the rules of engagement are not clearly laid out and are still evolving.[36] One rule of engagement, according to Twitter user @danmartell, is a suggestion not to follow “anyone who doesn’t have a URL associated with their Twitter profile” in order to guarantee legitimacy.[37] A simple cease-and-desist order to someone misrepresenting a person or company appears to be sufficient.[38] In regards to watering down a trademarked name, companies would be better served by bringing those who are talking about them into the fold than trying to silence them. [39] Questions of usage and etiquette will work themselves out as the medium evolves, said Chris Sacca, one of the original investors in Twitter.[40]
Some examples of etiquette guidelines include the following. First, one should strategically follow and un-follow People. One should follow users based on common interest, trust, and potential for learning from that user.[41] Second, a user should be up-front about his or her Twitter aspirations. The user must indicate what his or her focus is and tweet on topics primarily in accordance with those aspirations.[42] That is not to say that the user should not tweet about topics beyond the focus. Third, a user should be personal (to a point). Twitter has the potential to humanize you or your company in the eyes of another user, but users should exercise caution in tweeting messages or content that may be considered to be too personal.[43] Fourth, a user should reciprocate gracefully.[44] This means that users should be honest and willing to share ideas and information. Fifth, a user should use the Direct Message correctly. It is intended to convey a private message or to facilitate one-on-one conversations. Direct Messages are not intended to be publicized or to spam users with product pitches.[45]
Use of tweets in hiring/firing
Once a user has built trust, a user will be more willing to share more intimate details about his or her day-to-day life, such as what he or she eating at the moment or the random sign he or she saw on the street. Other intimate details may include what a user thinks of his or her employer (as in “I hate him”).[46] This willingness to share intimate details raises some questions. Will potential future employers see this user as having a negative attitude about the work? Is it fair to use these intimate details in the hiring or firing process?[47] When a user is willing to share details, the user is likely to be tweeting frequently.
Tweets could be fodder for opposing campaigns to use against a politician in an upcoming election. One moment may be used repeatedly (“viral”) against an incumbent Congressman/Senator.[48] For example, former Senator George Allen (R-VA) made an off-hand racist remark (“Macaca”) to his opponent’s cameraman, who was of Indian descent.[49] His remark was recorded and posted to YouTube, where it could be played repeatedly.[50] This incident largely contributed to his narrow defeat to Democrat Jim Webb.[51] Even an instant Tweet or off-hand remark may be damaging to the point that it is too late to control the damage and can lead to the loss of one’s job.
“Un-Productivity”
Twitter will post a time stamp for each tweet indicating when a user tweeted and how often the user tweets. Potential future employers may see this as a sign of an unproductive employee and that the employee has nothing better to do with his/her time.[52] This raises the question: May employers use a job applicant’s tweets to assess that applicant’s work ethic?
In a prominent example of un-productivity, lawmakers were Tweeting via their Blackberry devices or Cell Phones during President Barack Obama’s first Address to Congress.[53] This indicates that they weren’t fully paying attention to President Obama’s speech.[54] One lawmaker who was criticized for tweeting during the address was Senator Claire McCaskill (D-MO).[55] Some Congressional Tweets went out during applauses. These Tweets were likely intended to give readers a live look at a perspective on an event from someone who is there in the House Chamber. It is understandable to share a unique perspective to everyone else who isn’t there, much like live-blogging history as it is unfolding. However, Tweeting while at a speech may indicate that one doesn’t care about what the President says or is too busy to pay attention to some critical issues. Lawmakers look impolite for tweeting during the President’s address.[56]
One possible solution to alleviating un-productivity is to allow short breaks during the day when employees can use the Internet. A new study claims that employees are more productive when they can take short breaks during the day to surf the internet. Allowing this rather than restricting use can lead to higher employee morale.[57]
Medical and Personnel Records
Surgeons tweeted so the whole world could see how a certain surgery works in real time.[58] This starts to encroach on the issues of waivers under the Health Insurance Portability and Accountability Act (HIPPA) as well as patient privacy. Moreover, this raises the question of whether doctors should be sharing medical processes or potentially someone’s medical information in this fashion, even with a HIPPA waiver?[59] May these tweets be discoverable as evidence in litigation? Would Twitter face subpoenas for tweets to be used as evidence?[60]
Celebrities with Ghost Writers
Celebrities such as Barack Obama have Twitter profiles.[61] This allows them to communicate with their fans and supporters without involving the media.[62] However, many celebrities, including Obama, use Ghost Writers to tweet to followers.[63] We feel like we share a connection with the celebrity when they communicate their thoughts via Twitter in near-real time.[64] If I felt like I was actually seeing and communicating with the celebrity, and then realized that the celebrity’s spokesperson is the one who updates the profile, not the celebrity himself/herself, then I might feel disappointed.
Fake Profiles: The Potential for Identity Theft and/or Defamation
Because of the trust engendered with users, users might be apt to believe any information tweeted from fake profiles.[65] People might trust these fake profiles of companies and/or company employees as sources of information. The fake profile might leak out secrets (whether true or false), defamatory information, or false information, etc. Followers might believe whatever is posted by the fake profile. It is possible for the real company or person to contact Twitter to shut down fake profiles.[66] However, such damage control might be too late. Other users may be skeptical and may seek to trust but verify. In order to establish authenticity, users should list the URL of their companies in their profile.[67]
Examples of fake profiles are numerous. For example, someone impersonated the Austin, Texas Police Department, which gained greater attention during a national conference known as SXSW.[68] Some tweets included indications of more speeding stops at SXSW as well as police jargon based on gangsta rap lyrics rather than actual law enforcement.[69] In another impersonation profile, a Mexican-Korean food joint in Los Angeles has a fake profile in its name that posts fake locations of the food truck, menu items, and specials.[70] The Dalai Lama Profile turned out not to be the Dalai Lama and was suspended, but later reinstated with a disclaimer that this is just an unofficial Dalai Lama news feed.[71]
Issues Covered by both Character Limit and Trust
Wrongful Termination and Workplace Retaliation
Twitter could be a catalyst for more workplace retaliation and wrongful termination claims.[72] Users may claim that they were retaliated against or fired because of protected information they shared on Twitter, such as harassment they faced in the workplace or a safety violation.[73] However, workplace retaliation and wrongful termination claims are difficult to prove.[74]
Is Twitter a relatively closed universe?
Is there a reasonable expectation of privacy within a Twitter community? No. Is there a reasonable expectation of privacy in the case of a restricted account? No. Say you have an employee who Tweets to a closed group criticizing an employee for sleeping w/ the boss to get ahead, and that employee responds to you, escalating into an all-out flame war. Does the employer have an obligation to investigate in this case?
In another example, an advertising agency announced mass layoffs via Twitter.[75] Employees did not expect to hear about a firing first via Twitter. An employee would expect a notice in writing or an early verbal note.[76] This example illustrates how Twitter cannot always be trusted without verification.
The “Cisco Fatty” story illustrates how someone’s instant thought can be publicized.[77] “Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work.”[78] The “Cisco Fatty” did not protect her profile, and thus this tweet was laid out for the whole world to see.[79] Someone claiming to be a Cisco associate responded that her sentiment as reflected in the Tweet would be passed along to her hiring manager.[80] This Tweet was taken out of context, according to the Cisco Fatty, because the paycheck was for an internship she didn’t want and already turned down.[81] Cisco does not publicly comment on its employees, prospective or current, but they do post their philosophy regarding social networking: Don’t post something unless you want it publicized and repeated (viral) and you are prepared to defend yourself.[82]
How a Locker Room Tweet Can Get You in Trouble
Charlie Villanueva is an NBA player for the Milwaukee Bucks. Villanueva is a fan of UConn and tweeted during an NBA game about how he was bitter that Michigan State moved on to the NCAA National Championship Game.[83] He also bashed Michigan State as not deserving to be there. This recalls the old adage of “keep your comments [and feelings] to yourself.”
In a similar situation, Green Bay Packers linebacker Nick Barnett tweeted about the need for more defensive linemen.[84] Some might interpret his tweet as criticizing the coaches’ strategies or the players chosen to be defensive linemen.[85] Barnett defended his comments by saying that “we need more guys after losing some players in free agency.”[86] Barnett claimed he was not criticizing the players there, but was saying that all of them could get better and that everyone knows that they need more players.[87] Barnett likes to say whatever is on his mind.[88] Tweeting could get an athlete or employee in trouble with coaches and/or superiors. Barnett’s tweet could have been seen as being out of line.
The First Twitter Libel Suit
The beauty of Twitter is that users can upload their thoughts as and when they think of them.[89] This is a serious disadvantage for those of a belligerent disposition.[90] Courtney Love’s angry tweets have landed her in court.[91] Love’s former fashion designer, Dawn Simorangkir, lodged a libel claim against Love in Los Angeles Superior Court in March 2009.[92] Simorangkir, who lives in Austin, Texas, claims Love tweeted the following. Love accused her of being a “nasty, lying, hosebag thief”; having “a history of dealing cocaine”; having “lost all custody of her child”; and, being guilty of “assault and burglary.” Love also says designer would be “hunted til your [sic] dead.”[93] Love then allegedly posted on a fashion site where Ms. Simorangkir sells her clothes: “The nastiest lying worst person I have ever known … evil incarnate, vile horrible lying bitch.”[94] Simorangkir seeks punitive damages, citing that Love’s comments have destroyed her reputation and her business.[95] The court papers state the following: “Whether caused by drug-induced psychosis, a warped understanding of reality, or the belief that money and fame allow her to disregard the law, Love has embarked on what is nothing short of an obsessive and delusional crusade to destroy Simorangkir’s reputation and her livelihood.”[96] The court papers also indicate Love was furious that Ms Simorangkir stopped working for her after Love failed to pay her bill; this led to “an intense level of animosity … well beyond what any reasonable person would consider acceptable behaviour.”[97] This incident illustrates the need for us to have good relations with our colleagues, lest they libel us via Twitter or Facebook or anywhere else on the web.[98]
How do we proceed given existing legal doctrines?
Should employers place restrictions on the usage of Twitter? How should Twitter be regulated, if at all? Do employers have a right to monitor or even access your computer or Twitter feed? Can employers require you to produce your personal Tweets? Can employers ask Twitter to produce your Tweets? Giving employers the ability to access this information diminishes the expectation of privacy.
Private Twitter Accounts
What if you keep your Twitter account private so that other users are required to request to follow you? One scenario may involve the employer/HR personnel posing as a random Twitter user interested in an applicant’s tweets. Could employers/HR personnel spy on applicants in this fashion if applicants refuse to disclose their online accounts? This practice is also known as ghosting.[99] “Ghosting” involves NFL Teams becoming fans of potential draft picks who have private/protected profiles.[100] The NFL Team/Coach creates a ghost profile in order to spy on potential draft picks and see whether they have any incriminating information or photos.[101] Once the draft is concluded, ghost profiles disappear.[102] In recent years, it has not been uncommon to see incriminating photos of some high-profile NFL players.[103] Half of the NFL’s starting quarterbacks have incriminating and embarrassing social photos and information.[104] A private college video of NFL players singing songs with offensive language and derogatory lyrics about women was stolen and leaked on YouTube.[105] They could explain past behavior by saying that they were in college and we have moved on.[106]
Users should be careful about what they say and do around people, and should be aware of their audience(s). The NCAA and most major college programs lay out parameters for what athletes can and cannot put on the internet.[107] Some colleges have considered banning social networks completely.[108] Potential draft picks scrub their pages of any incriminating and/or embarrassing information that could be used against them.[109]
This recalls Hill v. Nat’l Collegiate Athletic Ass’n, where the privacy analysis is a balance between privacy and the need to obtain information.[110] How would waivers of privacy be handled? Is there a zone of privacy in cyberspace that should not be violated? Examples include your backpack and your car’s trunk. Twitter, like SMS Text Messages, has a 140-character limit. Can Twitter be regulated like Text Messages because of these similarities, or should Twitter be treated differently?
Should employers follow the Pentagons lead in deciding how to regulate the use of Twitter in the employment context after Rep. Pete Hoekstra’s live-tweeting from Iraq? Are
there reasonable steps that could be taken to protect private information? Should Twitter be treated as something to be monitored by employers or should it be treated like a personal voicemail system? Look at Quon v. Arch Wireless Operating Co., Inc., which involved a SWAT officers use of a work pager to send personal and sexually explicit messages.[111] The officer paid for overages, which would prevent others from viewing his messages stored on the service provider’s server.[112] Should employers be allowed to request from a service provider the electronic messages/transactions of the employee? The 9th Circuit said that employers may not seek production of electronic messages stored on a service providers server.[113] The Dissenting opinion indicated that SWAT members should not have a reasonable expectation of privacy in messages sent on pagers provided to officers for use in SWAT emergencies.[114] The dissent also indicated that the reasonableness of a special needs search does not require the least intrusive means, which the 9th Circuit did and the Supreme Court and seven other Circuits did not.
Scenarios for Dealing with Protected Twitter Profiles and Tweets
Scenario 1: Tweets should not be Discoverable for Use Against an Employee or Applicant
Use of a spy to conduct reconnaissance work for a lawyer to dig up electronic data that are clearly intended to be protected should probably be disallowed. Consideration of whether reasonable steps were taken to preserve the privacy of private tweets in whether to allow the use of private tweets may vary by jurisdiction. Some jurisdictions could bar the use of protected tweets regardless of reasonable steps taken to protect those tweets. Others may allow the use of protected tweets if reasonable steps were not taken to protect the data.
Scenario 2: Tweets should be Discoverable Under Primarily Extreme Circumstances
Is the search reasonable? Can a search be accomplished by the least invasive means? What a search requires, why that search is required, and the least invasive means will likely need to be analyzed on a case-by-case basis.
Scenario 3: Tweets are Discoverable Under Most Circumstances
As with Scenario 2, the reasonableness and least invasive means analyses would apply on a case-by-case basis. Even if one intended to protect tweets, one cannot expect privacy, since somebody could retweet what has already been posted even under a protected account. If something is retweeted and leaked, that breaches privacy. If the user intended to protect his or her profile, could a private tweet be considered inadmissible? Someone could retweet what has already been posted. This recalls the “unringing a bell” analogy. Once something is posted, it cannot be undone, leaving a record of what was posted.
Scenario 4: Tweets are Discoverable Under Virtually Any Circumstances
Protected Twitter Profiles are not protected, since somebody could retweet what has already been posted. There is effectively no privacy in this Scenario. However, others might argue that the size of one’s social network may be a factor in determining whether a user could expect a profile to be protected.[115] In other words, the more users a person follows and/or is connected to in a social network, the lower that person’s expectation of privacy will be. However, this raises the question of what number of users is considered appropriate to argue that someone’s profile and postings is no longer protected. Even if only a few people are in one’s social network, they still have the potential to repost information for the whole world to see. This also raises another question: Should private information released only to a few people remain private, since the probability of sharing such information outside of those few people is very low?[116]
What should employees do at this point?
Without much case law to guide people one way or another, employees and job applicants should be highly vigilant about what they post and think twice before they post something. If they have already posted something, then they should be prepared to defend their post and to take the heat for posting it, whether a legal challenge comes their way. Employees/Applicants can say, “I made choices in the past that I wouldn’t make now,” rather than denying their cyberspace actions. (Social Media Best Practices for Law Schools [Part 2]) Anything posted online will be archived forever. If one wants to use Twitter for both personal and business purposes, then one must be very wise about the type of information being displayed, says Dan Schawbel (@danschawbel), who authored the new book Me 2.0: Build a Powerful Brand to Achieve Career Success. Either way, one’s updates are all crawled by Google and can hurt one’s reputation if they negatively portray one’s brand.[117] Thus, one cannot expect tweets to be kept private.[118] The “only safe way for a lawyer to operate is to assume there is [no security].”[119] Tweeting should be treated as publishing a story to the front page of a newspaper or website for everyone to see.
Conclusion
I agree employers should be able to regulate employee technology usage with respect to protecting trade secrets and private information. On the issues of privacy and defamation, lawyers may consider tweets in the hiring and firing process if those tweets have been publicized and are clearly unprotected. Tweets that are protected would probably fall under Scenario 2. However, there is a potential for a slippery slope. If one were to define extreme circumstances, exceptions might be made to fit this category, and protected Tweets would slide towards Scenario 3.
What if someone retweets something from a protected account? How can employers lay down some ground rules in order to prevent incidents or mitigate any damage that results from incidents? Employers can limit technology usage when entering rooms that contain private information. Employers can also warn that any unprotected Twitter account profile is fair game and to think before posting. Employers can set a policy of leaving technology behind and checking it in. While some might argue that there might be important business calls, setting aside one’s BlackBerry for a period of time may encourage you to focus only on your work and be more productive. Employers can take advantage of programs that encourage employees to avoid using technology at random times of the day and focus on work, such as AwayFind.com. Employers can set aside certain break times to use Twitter and other technologies.[120] Set policies for social media usage and how to be careful. The NCAA and most major college programs lay out parameters for what athletes can and cannot put on the Internet.[121] Perhaps it would be useful to show examples of what NOT to do. Some colleges have considered banning social networks completely.
A complete ban on social networks would possibly result in the following. Some people might actually concentrate on their work rather than gossip about what happens on a social networking site. Some people might rebel and access the social network on their mobile device. Some might rebel against such a ban by misbehaving. Contrary to conventional wisdom – created via horror stories of people getting fired for outlandish Facebook or Twitter messages – sharing personal messages (intelligently) can be advantageous to your business.[122] If many people follow a user because of the user’s profession, then the user will want to populate his or her Twitter stream with many business related messages.[123] But a user shouldn’t be afraid to hit on themes in that user’s business life that intersect with the personal.[124] The dreaded too-much-information tweet can be avoided by understanding the difference between personal tweets and private information that shouldn’t be published anywhere.[125] Avoid discussing fights with significant others and talking about nitty-gritty details involving children.
For many people who work at big scary companies, the decision to inject personal information into their Twitter stream can be especially agonizing, especially if your Tweets express opinions about business, politics and other hot-button issues.[126] As a result, experts say you can put a disclaimer in your Twitter profile, noting that the Twitter stream reflects your opinions, not your employer’s. To be clear, you can still be up front that you work for that company. The following is a sample of such: “This is a personal Twitter feed. The opinions expressed here represent my own and not those of my employer. No warranties or other guarantees will be offered as to the quality of the opinions or anything else offered here.”
Until further rules of engagement have been developed, anybody who uses Twitter or any other social network is strongly advised to think before tweeting. Users must consider whether whatever they tweet will be misconstrued or taken out of context. If users tweet carelessly and without regard for potential consequences, then those users can expect possible action taken against them by an employer, prospective employer, employee, or even friend.
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[9] Twitter etiquette and shorthand, http://getsatisfaction.com/twitter/topics/twitter_etiquette_and_shorthand (last visited May 14, 2009).
[10] Twitter Blog, Testing A More Integrated Search Experience, http://blog.twitter.com/2009/02/testing-more-integrated-search.html (last visited May 14, 2009).
[11] Jennifer Cohen, Twitter – What’s the point?, http://jencohen14.wordpress.com/2008/12/16/twitter-whats-the-point/ (last visited May 14, 2009).
[12] HR World Not Immune From Twitter Craze, http://www.workforce.com/section/00/article/26/30/43.php (last visited April 11, 2009).
[13] Twitter – Home Depot, http://twitter.com/homedepot (last visited May 14, 2009).
[14] Twitter – Starbucks, http://twitter.com/starbucks (last visited May 14, 2009).
[15] Twitter – Dell Computer, http://twitter.com/Direct2Dell (last visited May 14, 2009).
[16] Twitter – Trader Joe’s, http://twitter.com/traderjoes (last visited May 14, 2009).
[17] Twitter – Rubbermaid, http://twitter.com/rubbermaid (last visited May 14, 2009).
[18] Twitter – General Motors, http://twitter.com/GMblogs (last visited May 14, 2009).
[19] Mark Gibbs, Analyzing Twitter with Excel, Part 1, ComputerWorld, April 3, 2009, http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9131044.
[20] Frank Davies, Congress and Twitter: Representatives Run With New Technology, Chicago Tribune, April 9, 2009, http://www.chicagotribune.com/business/chi-tc-biz-thu-twitter-congress-apr09,0,4270600.story.
[21] Twitter – Barack Obama, http://twitter.com/BarackObama (last visited May 14, 2009).
[22] Twitter – Shaquille O’Neal, http://twitter.com/THE_REAL_SHAQ (last visited May 14, 2009).
[23] Twitter – Britney Spears, http://twitter.com/BritneySpears (last visited May 14, 2009).
[24] Tresa Baldas, Beware: Your ‘Tweet’ on Twitter Could Be Trouble, The National Law Journal, December 22, 2008, http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202426916023.
[25] Id.
[26] Shankman.com, Be Careful What You Post, January 15, 2009, http://shankman.com/be-careful-what-you-post/.
[27] Twitter – Rex7, http://twitter.com/Rex7 (last visited May 14, 2009).
[28] AndaPR, Twitter in and about the workplace can bring trouble, December 24, 2008, http://andapr.wordpress.com/2008/12/24/twitter-in-and-about-the-workplace-can-bring-trouble/.
[29] Richard A. Paul & Lisa Hird Chung, Brave New Cyberworld: The Employer’s Guide to the Interactive Internet, 24 The Labor Law. 109, 119 (2008).
[30] David Pogue, If you Tweet It, They Will Come, The New York Times, April 15, 2009, http://pogue.blogs.nytimes.com/2009/04/15/if-you-tweet-it-they-will-come/.
[31] Helen A.S. Popkin, Twitter Gets You Fired in 140 Characters or Less, MSNBC, March 23, 2009, http://www.msnbc.msn.com/id/29796962/.
[32] Kyla King, Congressman Pete Hoekstra’s Twitter Flap Prompts Pentagon Policy Review, MLive, February 11, 2009, http://www.mlive.com/news/grand-rapids/index.ssf/2009/02/hoekstras_twitter_flap_prompts.html.
[33] The Associated Press, What a Twit! Twitter-using Juror May Cause $12.6 Million Mistrial, New York Daily News, March 13, 2009, http://www.nydailynews.com/news/us_world/2009/03/13/2009-03-13_what_a_twit_twitterusing_juror_may_cause.html.
[34] Helen A.S. Popkin, Twitter gets you fired in 140 characters or less, March 23, 2009, http://www.msnbc.msn.com/id/29796962/.
[35] AndaPR, Twitter in and about the workplace can bring trouble, December 24, 2008, http://andapr.wordpress.com/2008/12/24/twitter-in-and-about-the-workplace-can-bring-trouble/.
[36] Id.
[37] Id.
[38] Id.
[39] Id.
[40] Frank Davies, Congress and Twitter: Representatives Run With New Technology, Chicago Tribune, April 9, 2009, http://www.chicagotribune.com/business/chi-tc-biz-thu-twitter-congress-apr09,0,4270600.story.
[41] C.G. Lynch, Twitter Etiquette: Five Dos and Don’ts, CIO, February 10, 2009, http://www.cio.com/article/480318/Twitter_Etiquette_Five_Dos_and_Don_ts_.
[42] Id.
[43] Id.
[44] Id.
[45] Id.
[46] Josh Camson, What Career Service Office Advisors Should be Telling Students About Social Media [Part 2/2], Social Media Law Student, February 9, 2009, http://socialmedialawstudent.com/twitter/what-career-service-office-advisors-should-be-telling-law-students-about-social-media-part-22/.
[47] Id.
[48] More Than Fine, The Top 5 Viral Videos That Changed Someone’s Life (For the Worse), http://nomorequo.blogspot.com/2007/04/top-5-viral-videos-that-changed.html (last visited May 14, 2009).
[49] Tim Craig & Michael D. Shear, Allen Quip Provokes Outrage, Apology, The Washington Post, August 15, 2006, http://www.washingtonpost.com/wp-dyn/content/article/2006/08/14/AR2006081400589.html.
[50] More Than Fine, The Top 5 Viral Videos That Changed Someone’s Life (For the Worse), http://nomorequo.blogspot.com/2007/04/top-5-viral-videos-that-changed.html (last visited May 14, 2009).
[51] Id.
[52] Molly McDonough, Think of Twitter as ‘Megatexting,’ But Proceed With Caution, ABA Journal, April 8, 2009, http://www.abajournal.com/news/think_of_twitter_as_megatexting_but_proceed_with_caution/.
[53] Malia Rulon Gannett, Lawmakers part of social craze, Great Falls Tribune, March 30, 2009, http://www.greatfallstribune.com/article/20090330/NEWS01/90330010.
[54] Id.
[55] Id.
[56] Frank Davies, Congress and Twitter: Representatives Run With New Technology, Chicago Tribune, April 9, 2009, http://www.chicagotribune.com/business/chi-tc-biz-thu-twitter-congress-apr09,0,4270600.story.
[57] Lisa Hoover, Finally, an official excuse to use Twitter at work, ComputerWorld, April 3, 2009, http://blogs.computerworld.com/finally_an_official_excuse_to_use_twitter_at_work.
[58] Health Care Law Blog, The Implications for Live Tweeting Surgery, http://healthcarebloglaw.blogspot.com/2008/11/implications-for-live-tweeting-surgery.html (last visited May 14, 2009).
[59] Id.
[60] Id.
[61] Andrew Johnson and Ian Griggs, Love’s Online Spat Sparks First Twitter Libel Suit, The Independent, March 29, 2009, http://www.independent.co.uk/news/media/online/loves-online-spat-sparks-first-twitter-libel-suit-1656621.html.
[62] Id.
[63] Id.
[64] Id.
[65] AndaPR, Twitter in and about the workplace can bring trouble, December 24, 2008, http://andapr.wordpress.com/2008/12/24/twitter-in-and-about-the-workplace-can-bring-trouble/.
[66] Id.
[67] Id.
[68] Caroline McCarthy, Austin 911! Fake police Twitter account gets busted, CNET,
March 25, 2009, http://news.cnet.com/8301-13577_3-10204228-36.html.
[69] Id.
[70] Id.
[71] Id.
[72] AndaPR, Twitter in and about the workplace can bring trouble, December 24, 2008, http://andapr.wordpress.com/2008/12/24/twitter-in-and-about-the-workplace-can-bring-trouble/.
[73] Id.
[74] Id.
[75] First Recorded firing by Twitter!?!, Tribble Ad Agency, April 8, 2009, http://www.tribbleagency.com/?p=4705.
[76] Id.
[77] Helen A.S. Popkin, Getting the skinny on Twitter’s ‘Cisco Fatty’, MSNBC, March 27, 2009, http://www.msnbc.msn.com/id/29901380/.
[78] Id.
[79] Id.
[80] Id.
[81] Id.
[82] With Social Media, Cisco is listening, participating…and learning, The Platform, March 24, 2009,
http://blogs.cisco.com/news/comments/with_social_media_cisco_is_listening_participating…and_learning/.
[83] Ryan Corazza, Twitter Overkill, ESPN, http://sports.espn.go.com/espnmag/story?id=4052899 (last visited May 14, 2009).
[84] Greg A. Bedard, Linebacker Chirps Up, Milwaukee Journal-Sentinel, April 1, 2009, http://www.jsonline.com/sports/packers/42304202.html.
[85] Id.
[86] Id.
[87] Id.
[88] Id.
[89] Andrew Johnson and Ian Griggs, Love’s Online Spat Sparks First Twitter Libel Suit, The Independent, March 29, 2009, http://www.independent.co.uk/news/media/online/loves-online-spat-sparks-first-twitter-libel-suit-1656621.html.
[90] Id.
[91] Id.
[92] Id.
[93] Id.
[94] Id.
[95] Id.
[96] Id.
[97] Id.
[98] Chris Matyszczyk, Courtney Love in ‘hosebag thief’ Twitter libel suit, CNET, March 30, 2009, http://news.cnet.com/8301-17852_3-10207680-71.html.
[99] Charles Robinson, Social networking a potential trap for prospects, Yahoo! Sports, April 7, 2009, http://sports.yahoo.com/nfl/news?slug=cr-socialnetowrking040709.
[100] Id.
[101] Id.
[102] Id.
[103] Id.
[104] Id.
[105] Id.
[106] Id.
[107] Id.
[108] Id.
[109] Id.
[110] Hill v. Nat’l Collegiate Athletic Ass’n, 865 P.2d 633 (Cal. 1994)
[111] Quon v. Arch Wireless Operating Co. Inc., 554 F.3d 769, 771 (9th Cir. 2008)
[112] Id. at 770.
[113] Id. at 773.
[114] Id. at 774.
[115] Lior Jacob Strahilevitz, A Social Networks Theory of Privacy, 72 U. Chi. L. Rev. 919, 974 (2005).
[116] Id. at 977.
[117] C.G. Lynch, Twitter Tips: Safely Blend Personal and Professional, ComputerWorld, April 8, 2009, http://www.computerworld.com/action/article.do?command=viewArticleBasic&taxonomyName=&articleId=9131324&taxonomyId=&intsrc=kc_feat.
[118] Molly McDonough, Think of Twitter as ‘Megatexting,’ But Proceed With Caution, ABA Journal, April 8, 2009, http://www.abajournal.com/news/think_of_twitter_as_megatexting_but_proceed_with_caution/.
[119] Id.
[120] Lisa Hoover, Finally, an official excuse to use Twitter at work, ComputerWorld, April 3, 2009, http://blogs.computerworld.com/finally_an_official_excuse_to_use_twitter_at_work.
[121] Charles Robinson, Social networking a potential trap for prospects, Yahoo! Sports, April 7, 2009, http://sports.yahoo.com/nfl/news?slug=cr-socialnetowrking040709.
[122] C.G. Lynch, Twitter Tips: Safely Blend Personal and Professional, ComputerWorld, April 8, 2009, http://www.computerworld.com/action/article.do?command=viewArticleBasic&taxonomyName=&articleId=9131324&taxonomyId=&intsrc=kc_feat.
[123] Id.
[124] Id.
[125] Id.
[126] Id.
