Posted by: Vincent Pascual | July 8, 2011

It’s been a while!

It’s been a while since I last wrote. When I have more time, I will write again.

Some of the topics I will be discussing in the future are:

1. iPhone and iPad apps and accessories
2. Quotes and mantras to live by
3. More restaurant reviews
4. Fitness

Posted by: Vincent Pascual | May 27, 2009

“Twitter and Employment Law Issues”

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.


[1] Twitter in Plain English (2008), http://www.youtube.com/watch?v=ddO9idmax0o (last visited January 28, 2009).

[2] Gaurav Mishra, Real Time Citizen Journalism in Mumbai Terrorist Attacks (2008), http://www.gauravonomics.com/blog/real-time-citizen-journalism-in-mumbai-terrorist-attacks/ (last visited May 14, 2009).

[3] Lori Preuitt, Demi Moore, Twitter Save Suicidal San Jose Woman (2009), http://www.msnbc.msn.com/id/30030003.

[4] Jennifer Cohen, Twitter – What’s the point?, http://jencohen14.wordpress.com/2008/12/16/twitter-whats-the-point/ (last visited May 14, 2009).

[5] Twitter Home Page, http://twitter.com  (last visited May 14, 2009).

[6] TinyURL, http://tinyurl.com (last visited May 14, 2009).

[7] Twitpic, http://twitpic.com (last visited May 14, 2009).

[8] HOW TO: #Hashtags on twitter, http://blog.complimedia.com/2009/04/how-to-hashtags-on-twitter-quote-followfriday-etc/ (last visited May 14, 2009).

[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.

Posted by: Vincent Pascual | February 25, 2009

Seminar Paper Roadmap

What direction is my seminar paper taking?

Last week, I met with my instructor about the direction in which I want to take my paper.  The following is a quick outline of how I plan to organize my paper (right now, I’m sharing only the headings in order to save time, but I may elaborate further on these headings, even sharing the entire outline):

  • What is Twitter?
  • How do you use it?
  • How is Twitter applied to the business/employment world?
  • Dangers of Twitter as related to Employment Law
  • The trust Twitter engenders b/w users
  • How the 140-character limit can pose problems
  • Situations involving both trust and the 140-character limit

I elaborate at length on how or whether we should regulate Twitter given existing legal doctrine and current usage (at this time, there’s little organization here):

  • 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 or Twitter to produce your personal Tweets?
  • Policy Implication: Giving employers the ability to access this diminishes the expectation of privacy
  • Is there a zone of privacy in cyberspace that should not be violated? (Examples of zones of privacy: Your backpack, 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?
  • Is there a reasonable expectation of privacy in the case of a restricted account?
  • Say you have an employee who Tweets to a closed group criticizing an employee for sleeping w/ the boss to get ahead.  That employee responds to you.  It turns into an all-out flame war.  Does the employer have an obligation to investigate?
  • Should employers follow the Pentagon’s lead in deciding how to regulate the use of Twitter in the employment context after Rep. Pete Hoekstra’s tweeting live from Iraq?
  • Should Twitter be treated as something to be monitored by employers or should it be treated like a personal voicemail system?

Please let me know what you think.

Posted by: Vincent Pascual | February 10, 2009

Deep Sky Update 2

A quick note: I will admit that for my iPod touch, I went to great lengths to protect it. I used two products:

  • ZAGG Invisible Shield for iPod touch 2nd Generation
  • OtterBox Defender for iPod touch 2nd Generation

It took a while to install Invisible Shield on the iPod touch. I will say that ensuring the flaps adhere to the iPod is tedious and requires patience. Keep it protected from dust during the entire installation process. Initially, manipulating the touch screen took a bit more effort, but after rubbing my fingers on the screen, I was able to gain more traction.

As for the OtterBox Defender, I used this IN ADDITION to the Invisible Shield. The most difficult part about installing the shell is making sure that you don’t undo the flaps of the Invisible Shield. Make absolutely sure that the flaps will stay on! Afterwards, getting rid of air bubbles that come between the membrane of the Defender and your iPod is another challenge. I managed to eliminate most of the air bubbles and allowed the membrane to stick to the iPod. I wish I could have eliminated 100% of air bubbles, but that would take far too long, and I decided that it was harder to notice when the bubbles are too tiny. Installing the silicone cover over the shell is easy. Remember that removing the shell is a difficult process that requires a key or narrow blade to pry open the notches.

Once my iPod touch was “armored,” as I like to say, I was ready to use it.

If anyone is willing to share suggestions on getting the most out of my iPod, whether through apps or other accessories, feel free to share!

I hope to discuss and review more apps in the future.

Posted by: Vincent Pascual | February 10, 2009

Update on my Twitter & Employment Law paper

After kicking around some ideas on how to approach my paper for my Employment Law & Technology seminar, I took another look at the links I cited to in my prior post on this topic. The blog entry “Twitter in and about the workplace can bring trouble” from AndaPR appears to be most on-point for addressing how Employment Law affects Twitter. While there isn’t much specific caselaw involving Twitter, I believe any analogous cases or stories as well as specific incidents involving Twitter will help me the most. Within the next few days, I hope to draft a clear, structured outline for my paper.

Posted by: Vincent Pascual | February 2, 2009

Deep Sky Update 1

Last month, I launched “Project Deep Sky,” my push to consolidate all of my study materials (notes, outlines, audio recordings) into one clearinghouse: the iPod touch.

This is my first progress report, written from WordPress for the iPod touch. I have utilized the following programs to manage my study materials:

Air Sharing

This allows you to save files on your iPod as if the iPod is a flash drive. You must activate Air Sharing, which will provide instructions on how to access a wireless server (your iPod) for your specific OS. Once you do that, you can drag files into the server, just like moving files to a folder.

I moved many Word Documents, PDFs, a PowerPoint Presentation, and an MPEG-4 Video. Word Documents are automatically reformatted to fit the iPod’s screen, but some formatting (e.g. bullet points, excess underlining, different font sizes on different lines) may be imperfect. PDFs maintain their formatting, but cannot be reformatted to fit the screen. The PowerPoint I loaded seemed to maintain its formatting. You scroll up and down as you would with a list; perhaps the ability to flick slides a la photos would be useful. Videos work as if they were loaded via iTunes. So you can load media files without syncing with iTunes.

I like that I can scroll through my notes whenever I’m waiting around or I can’t carry books or binders with me.

Law in a Flash: Professional Responsibility

This is the electronic version of the Law in a Flash series of study flash cards. These retail for the same price as the new boxed versions you can buy at a university bookstore. The PR set is $59.99 as opposed to the regular $39.99 for other sets because the PR set includes study material for the Multistage Professional Responsibility Examination. While you can’t resell these programs like you can resell books and flash cards, you can annotate the electronic version and have the ENTIRE set to go as opposed to only a few at a time and risking losing individual cards. Thus far, I have enjoyed using Law in a Flash on iPod touch.

Posted by: Vincent Pascual | January 28, 2009

Restaurant Review #1: Hash House a go go

Hash House a go go, San Diego, CA

Hash House a go go, San Diego, CA

Hash House a go go is the first restaurant I have the honor of reviewing on my blog. On Martin Luther King, Jr. day, my friend Andy and I enjoyed breakfast at Hash House in San Diego. We arrived shortly after 7:30 am, when it opened. The closest parking across the street is metered, but since it was a holiday, parking was free.

Tractor Trailer Combo with Griddled French Toast

Tractor Trailer Combo with Griddled French Toast

I ordered the Tractor Driver Combo with Griddled French Toast. Here’s what I got with the dish:

  • Scrambled Eggs
  • Grilled Mashed Potatoes

The Griddled French Toast is “dipped in a banana cinnamon cream w/ pecan maple syrup.” The portions are massive given the price and delicious. The serving of French Toast seemed as if it were half a loaf of bread and the slices were nearly an inch thick. I will say that the French Toast was sweet and flavorful. You can really taste the syrup. The dish included some sliced, open-face bananas with the peels still remaining (I’m not sure of the terminology). Eating these with the pieces of French Toast was a treat. The two complemented each other well.

The Grilled Mashed Potatoes were really good as well. They left some pieces of potato peel, giving the mashed potatoes a bit more substance. Just the right amount of flavor.

Corned Beef (?) Hash

Corned Beef (?) Hash

Andy ordered one of the House Hashes; which one, I am not entirely sure. As best as I can remember, I think he had the Corned Beef House Hash, which included:

  • Crispy Potatoes
  • Scrambled Eggs
  • Watermelon Slice
  • Biscuit

Like the other dishes at Hash House, Andy’s dish provided massive servings. I sampled his dish and found it to be delicious as well. His biscuit, with a firm crust and a soft interior, was more substantive than most other biscuits I’ve seen elsewhere.

What we didn't finish.

What we didn't finish.

Even if you come on an empty stomach, you will still be full. Between Andy and me, this is what we didn’t finish.

Overall, we had an awesome experience at Hash House. We came at a great time and our dishes were of high quality and quantity for what you pay for them. The servers were attentive to our needs (e.g. refills, syrup). I highly recommend this restaurant; however, I would recommend going right when they open (yes, I know it’s really early) rather than closer to lunch time, when you can expect to wait as long as two hours before getting a table. Moreover, have some change ready for the parking meters unless you dine here on a weekend or holiday, as we did. Finally, even if you come on an empty stomach, I would recommend sharing a dish or being prepared to bring home some leftovers for a late night dinner.

Bottom Line: If you’re in the San Diego area, you must eat here!

Hash House a go go
3628 Fifth Ave
San Diego, CA 92103
(619) 298-4646

Posted by: Vincent Pascual | January 23, 2009

Twitter & Employment Law

This semester, I am enrolled in a course called “Employment Law & Technology.” It is taught by Rich Paul, Partner at Paul, Plevin, Sullivan & Connaughton LLP.

The following is the course description, courtesy of the University of San Diego School of Law:

This course will examine the application of traditional doctrines of free expression, privacy, harassment, defamation and related workplace rules to speech articulated in emerging communications technology devices.  The course will open with a discussion of the technologies, their typical ownership and function, and of the areas of potential conflict surveyed in my article “Brave New Cyberworld:  The Employer’s Legal Guide to the Interactive Internet” (R. Paul and L. Chung, 2008).  The first quarter of the course will then review in some detail the bases and reaches of employer and employee rights and duties in the clash between employer interests in efficiency and information security with employee rights of speech, privacy and the like.  The second quarter of the course will examine the application of these ideas in different employment environments, starting with the information-sensitive (public employment, higher education workplaces and other workplaces in which information flow is a critical component of the work done), and then in the ordinary private sector environment.  The final quarter of the course will look at specific technology problems, e.g., monitoring employee computers, blackberry’s, SNS’s, text messaging, blogspeak, and the like.  The final part of the course will be reserved for presentation and discussion of student papers on topics within the general course parameters.

For this course, each student will write a paper on how legal doctrines and caselaw apply in dealing with technologies such as Facebook, MySpace, blogs, forums, Wikis, Twitter, BlackBerry, and Second Life as applied to the employment realm.

In the case of my paper, I have chosen to write about Twitter. As far as discussion of legal issues, the direction my paper will take has yet to be determined.

At this time, I believe I will be spending the first third of the paper introducing Twitter. Specifically, I plan to discuss what it is and how it works. Moreover, I plan to discuss Twitter in the employment context. Finally, my discussion should raise some actual and potential uses of Twitter.

The remaining two thirds will deal with a survey of employer/employee clashes involving Twitter.

Some issues that might be discussed:

  • What privacy safeguards are available? Is there an expectation of privacy? (I know that to a great extent, this depends on the user)
  • How do you protect your privacy on Twitter? What risks and limits are there in protecting your privacy on Twitter?
  • What if you post a tweet saying “My boss is an a*****e” and your profile is set to private? Meaning only your followers can see the tweet, but what’s to stop them from retweeting your post?
  • What risks and/or liability does an employee face for indiscreet posts?
  • What effect does retweeting a tweet have on privacy rights?
  • How does Twitter affect the workplace differently from the way Facebook, a generic blog, and/or other technology do?
  • Is Twitter likelier to have more application to businesses and workplaces than Facebook or other technologies?
  • Twitter & Confidentiality: To what extent will information security be compromised? (e.g. trade secrets, financial info)
  • Are employees wasting their work time on Twitter?

Enclosed are some blog posts, articles, and YouTube videos I have found that may serve as starting points for my paper:

Even if I can find more information on how Twitter is used outside the employment realm (e.g. breaking news alerts, citizen journalism, promoting yourself, etc.) than inside the employment realm, such information can still help.

Though some of these issues may seem to have obvious answers, what I have presented are only a sample of the legal issues that surround the use of Twitter. To any readers of this post: I would appreciate any feedback on my paper topic. I would also appreciate any resources, stories, blog posts, tips, and links you would be willing to share.

I will keep you posted on this work in progress.

Posted by: Vincent Pascual | January 14, 2009

Project Deep Sky

This semester, Spring 2009, I am launching Project Deep Sky, an operation to utilize the iPod touch as my clearinghouse and one-stop device for most of my law student life. Note: I named this project “Deep Sky” after a codename from Season 7 of the TV series “24”.

I just received an iPod touch for my birthday, and though I haven’t set it up yet (I would like to install an Invisible Shield before I use it), I hope to use my iPod as my main organizing tool for my law student life. I hope to organize my calendars, to do lists (I use Toodledo and will be using ToodleDo for the iPod touch), lecture notes, outlines, lecture recordings, and the like. That way, I can go anywhere and not feel chained to a single place. Perhaps I can go running with all of my material on the iPod. What effect this will have on battery life remains to be seen.

I record my lectures using GarageBand. Moreover, I record myself speaking important points from lecture/outline into the microphone and editing out excess silence and extraneous information. I hope to load those recordings on my iPod and play them on a repeat loop. The concept is that the recordings will help me focus on studying and memorizing where necessary.

I also hope to download the Law In a Flash series on my phone. While I can’t resell the flash cards, I can annotate the cards and have ALL of the cards in one place rather than deciding which ones to take and risk losing flash cards.

On editing my notes for reading on the iPod: Using Word 2004 on the Mac, I go to page setup and set the paper size to a 21.5 inch length by 3.5 inch width. That way, I can read it on my iPod without zooming and panning around. I hope to load my documents through AirSharing.

Thus far, I have found that it takes a while to edit my recordings and notes.

I will continue to keep you posted on this project. I welcome any feedback and suggestions.

Posted by: Vincent Pascual | January 12, 2009

Underdog

Having celebrated my 25th birthday yesterday, I reflected on many lessons I wish I could share right away. But there is one lesson that means a lot to me and may or may not overlap with the many other lessons: an underdog can still, in the end, emerge victorious. This lesson has manifested itself in various contexts (Preface: I do not seek to engage in debates about politics or sports or the like):

  • I called an old friend the weekend before Election 2008. He was working on get-out-the-vote for the Obama campaign in New Mexico and he is registered to vote in Michigan. While we agreed that Michigan was no longer a battleground state, he said that “we can’t take anything for granted.” Candidates for public office can start off as long shots (e.g. Barack Obama, Senator Kay Hagan of North Carolina, Senator Mark Begich of Alaska) and end up winning. Even if something is very likely to happen, an unexpected event (in a sense, an underdog) can still be the ultimate outcome.
  • Corollary: Even in California, an overwhelmingly progressive stronghold, your vote counts for something. Don’t waste it just because you figure the presidential race is a foregone conclusion. Even if it is, your vote means something on other items, such as certain ballot propositions I would prefer not to discuss here.
  • Corollary: Even if it takes a long time and a lot of effort to wage an uphill battle, maintaining a determination to keep going may or may not work. Obama said, even when he was ahead in the polls, that he still considered himself the underdog and that he would continue to campaign as if he were the underdog. Sometimes the circumstances surrounding your battles can work in your favor. You never know.
  • I have seen this lesson time and again in the course of studying. Even if there is something you have studied before and you learned it well then, you can’t necessarily take for granted that you know it and you can wing it on an exam. It’s certainly worth reviewing everything and covering all of your bases, time and resources permitting.
  • Football: Predictions can still end up being wrong. Last year, the Patriots were favored to win the Super Bowl and attain the perfect winning streak. But the Giants broke that streak and won the Super Bowl. Lesson: Never give up even in the face of tough odds. Sometimes, you can still end up winning. This goes back to political candidate underdogs.

I look ahead to a new chapter in my life with a renewed determination to make the best of the opportunities and challenges that lay ahead.

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