social networking and cloud computing

Copyright 2010 (c) Deirdre J. Kamber, All Rights Reserved

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Business Real Estate Land Use Commercial Litigation Bankruptcy

Estate Planning & Taxation Healthcare Employment Family Law

TWITTER WHILE YOU WORK: THE LEGAL IMPACT OF SOCIAL MEDIA, SOCIAL NETWORKING AND CLOUD COMPUTING IN THE

WORKPLACE

DEIRDRE J. KAMBER, ESQUIRE, [email protected] ext. 383

mailto:[email protected]

DEIRDRE KAMBER, ESQ., CHP

Areas of Practice: Employment Labor Information Privacy/Information Access School Law Unemployment Compensation, and Healthcare

Attorney, admitted in Pennsylvania, New York and U.S. Supreme Court

Labor and management representation From outsourcing HR work, to trainer, to

litigation

Work Website: http://www.flblaw.com/attorney_directory/deirdre_kamber.asp

LinkedIn: http://www.linkedin.com/in/deirdrejkamber


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http://www.flblaw.com/attorney_directory/deirdre_kamber.asp




http://www.linkedin.com/in/deirdrejkamber

http://www.linkedin.com/in/deirdrejkamber


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http://search.dilbert.com/search?p=R&srid=S3-3&lbc=dilbert&w=facebook&url=http://dilbert.com/strips/comic/2010-09-13/&rk=4&uid=96110634&sid=2&ts=custom&rsc=2y:oLXowysedwmyL&method=and&isort=date&view=list&filter=type:comic


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SOCIAL MEDIA, NETWORKING, DATA AGGREGATION, ANDCLOUD COMPUTING

The workforce faces challenges in technology unlike those we have ever experienced.

Businesses are responsible for creating policies, procedures and programs to address employee use.

We are responsible for the impact of social media from our client base.

We are using cloud computing for data storage, and we are responsible for how our electronic records are stored.

We need to be AHEAD of the curve.


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OUR AGENDA FOR

TODAY

Social media, networking and our employees

Social media, networking and our clients

The impact of cloud computing

What does the caselaw say?

What do we need to do?


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Number of people creating unique content

on the web:

85%

FAVORITE SITE:

FACEBOOK

Number of people who consider themselves

addicted to social media:

64%

Number of Facebook Friends Most People

Have:

Between 100 and 300

Number of people He’d or she’d actually call on the telephone:

10 -20

How he feels about friending his

BOSS:

“HELL NO!”

The average person’s most embarrassing

snafu:

Incriminating photosDiscovered by a FAMILY member

Average number of “tweets” per second:

600

Percentage of people who

have snooped using Facebook:

1 in 4Exerpted from “Women’s Health”, 9/2010


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WHERE ARE WE?

Where have we been?

Where are we now?

Social media is not a fad; it is a multimillion dollar issue for organizations. Look at Dirty Dominos, or United Airlines; what did it cost?

It is more important, statistically, to have a virtual office than a real one.

http://www.youtube.com/watch?v=4pyjRj3UMRM

http://www.ted.com/index.php/talks/pattie_maes_demos_the_sixth_sense.html

http://www.businessinsider.com/henry-blodget-dominos-2009-4

http://www.youtube.com/watch?v=5YGc4zOqozo

http://www.huffingtonpost.com/2009/07/24/united-breaks-guitars-did_n_244357.html


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WHAT ISSOCIAL MEDIA?

Blogs

Photo Sharing

Video Sharing

Tagging

Chat Rooms

Message Boards

Social Networks

Podcasts

NewsArticle

s

News Reports

LunchBreaks

BulletinBoards

CoffeeBreaks

Filing/ Labeling

WatchNews

PhotoAlbums


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Ibibo * Adult FriendFinder * Advogato * Amie Street * ANobii * ASmallWorld * Athlinks * AvatarsLast.fm * United * Badoo * Bebo * Bigadda * Big Tent * Biip * Black Planet * Blogster * Broadcaster

Yelp, Inc. * Youmeo * Zoo.gr * Buzznet * Café Mom * Cake Financial * Care2 * Classmates.com * Cloob * College Tonight * Couch Surfing * Daily Booth * Daily Strength * Decayenne * Deviant Art * DisABoom *

Dol2day * DontStayIn * Draugiem.lv * Elftown * Epernicus * Eons.com * Italki * Experience Project * Exploroo * Facebook * Faceparty * Faces.com * Fetlife * Filmaffinity * Fledgewing * Flixter * Flickr *

Fotolog * Friends Reunited * Friendster * Fruhstuckstreff * Fubar * Gaia Online * GamerDNA * Gather.com * Gays.com * Geni.com * Gogyoko *Hi5 * Goodreads * Gossipreport.com * Grono.net *

Habbo * Hospitality Club * Imeem * IRC-Galleria InterNations * Itsmy * Iwiw * Jammer Direct * KaiooKaixin001 * KIwibox * LibraryThing * LifeKnot LinkedIn * Live Journal * Lunar Storm * MeetIn * Meetup.com * Mobikade * MocoSpace * Mouthshut * Live Mocha * MOG * Mixi * Jaiku * Multiply * Muxlim *

MyAnimeList * My Church * My Heritage * My Life * My LOL * My Opera * MySpace * My Yearbook *

Masza-klasa.pl * Netlog * Nettby * Nexopia * NGO Post * Ning * Odnoklassniki * OKCupid *One Climate * One World TV * Open Diary * Orkut * OUT Everywhere * Partner Up * Plaxo *Passportstamp * Pingsta * Playahead * Playboy U * Plurk * Present.lv * Qapacity * Quarter-

Life * Qzone * Ravelry * Renren * ResearchGate * Reverberation * Ryze * Scispace * Shelfari *Skyrock * Social GO * Social Vibe * Sonico.com * Soundpedia * Stickam * StudiVZ * Super

Nova.com * Tagged.com * Talent Trove * Talkbiznow * Taltopedia * TraveBuddy.com * Travel –Lertspoint.com * Tribe.net * Trombi.com * Tuenti.com * Tumblr * Twitter * V Kontakte * Vam-Pirefreaks * Viadeo * Vox * Wakoopa * Wasabi * Wayn * WebBIographies * WeOurFamily *

Windows Live Spaces * Wiser Earth * Xanga * Xing * Xt2 * Yammer * Hyves *

WHAT IS SOCIAL NETWORKING?


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WHAT IS SOCIAL NETWORKING

Blogs -- “Entries of commentary on websites”

Photo Sharing – “Publishing of user’s digital photos online”

Video Sharing – “Video uploading services allowing individuals to upload video clips to an Internet Hosting Website”

Tagging (or “Tag”) – “A non-hierarchical keyword”

Chat Rooms -- “Primarily used by mass media to describe any form of synchronous conferencing”

Message Boards -- “an online discussion site”

WHAT IS DATA AGGREGATION?


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14http://radaris.com/p/Deirdre/Kamber/

http://radaris.com/p/Deirdre/Kamber/

http://radaris.com/p/Deirdre/Kamber/


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Data aggregation allows for ease of access to information.

Twine and Radaris, for example, are search engines that aggregate information.


Lawyer

New York

Pennsylvania

Brandeis University

MENSA

Mother

Adjunct Professor

Social Media and Networking Law

Employment Law

Center Valley

Fitzpatrick Lentz & Bubba

HIPAA

Rugby

Diversity

Hospitalization in 1999

Single Parent

Vacation in Vegas

Politics: financial conservative

Facebook

Awardee: Top Twenty Under FortySHRM

Grandfather with cancer

Religious beliefs: Reform

Experienced Trainer

June 9, 1972

Master’s Degree


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WHAT IS CLOUD COMPUTING?

Computing in the cloud

Online access through a third party to your records, files, training programs, results and other outsourced functions.

Pros: It’s not on your server or system Saves space Reduces employee access

Cons: It’s not on your server or system You now have a third party to deal

with You now have contracts to

address and laws to consider (i.e. retention, breach)


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EMPLOYEE ISSUES AND

TECHNOLOGY


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EMPLOYEEISSUES WITH TECHNOLOGY

Expectations of Privacy

TMI

Online Business Relationships

24-7 access to the Internet

Third Party Management (Cloud Computing)


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45% of employers use social networking sites such as Facebook, MySpace, or Twitter to research job candidates, according to a CareerBuilder.com survey.

35% of employers reported having refused to hire candidates based on content found on those sites.

Even the Florida Board of Bar Examiners suggested that bar applicants' web postings may reflect an “applicant's character and fitness not readily observable through the formal interview and application process.”

EMPLOYEEISSUES WITH TECHNOLOGY


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EMPLOYER MONITORING AND EXPECTATIONS OF PRIVACY

Employees should not expect privacy in their emails or Internet use at the office, or even at home where the workplace is implicated.

Employees should not have an expectation of privacy in Social Networking sites, such as Facebook.

For example, Social Sentry can automatically monitor employees’ Facebook and Twitter accounts. The cost is between $2 and $8 per employee.


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Employers need to be aware with the antidiscrimination laws, now including GINA and other proposed laws (such as GLBT), you want ONLY job-related information.

Research via the Web will give you TMI.

Even if you don’t know that it’s out there, if you have a policy that says you look up Facebook pages, if your employee’s Facebook page includes her breast cancer treatments, you are deemed to have that information.

TMIYOU DON’T WANT THE

INFORMATION!!!!!


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Just as traditional friendships between boss and employee can be problematic, so too can online relationships.

Now, add in: inequal workplace relationships, “defriending,” “posts,” and a lack of control over Internet documents.

Clarify the relationship. You must be direct about the nature of your business relationship.

ONLINE BUSINESS RELATIONSHIPS


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Be social — to a degree. In most offices, there's usually som esocial mingling. The same goes for online friendships.

Don’t play favorites. Don’t favor certain employees in the workplace.

Keep topics off confidential information. No matter how close you are to pals in the office, you have to resist the temptation to give them the inside scoop.

Face the firing line. Sometimes an employee is not performing up to par. You must be this person’s employer first and friend second.

ONLINE BUSINESS RELATIONSHIPS


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24-7 ACCESS TO THE INTERNET

Everything on Paper• No Workplace

Policies on Computer Usage

To e-mail and internet, requiring:• Acceptable Use

Policies (AUPs)

To Handhelds, Apps, Internet, Linked In, etc., requiring:• Social

Networking/Media Acceptable Use Policies (SNAPs)

BE ABLE TO USE YOUR ACCEPT-“ABLE” USE POLICIES


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Some internet access is important -- You will lose productivity if you ban everything.

Consider what might be relevant for work -- Give your employees the tools that they need to maximize their talents.

Are You Working with IT? You should be working with your IT person to check allowing, blocking and monitoring….what do you want to know about?

Is your ban effective? Does everyone have smart-phones?

24-7 ACCESS TO THE INTERNET AND ACCEPTABLE USE POLICIES

Allow Block Monitor


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LITIGATION AND

PITFALLS


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A lawsuit, which has been a huge trend upward for:

Defamation, false light, IIED, Stored Communications Act violations, etc.

An apology (like Dominos or American Airlines)

Or an “To H^&* with You” answer ….

WHAT HAPPENS WHEN THERE’S A DISPUTE?

http://www.youtube.com/watch?feature=youtube_gdata_player&v=O6nBhhnnuOM


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Is privacy dead?

NO. In Pietrylo v. Hlllstone Restaurant Group, d/b/a Houston's, management discovered that two waiters posted on their MySpace page sexual remarks about management and customers, jokes about the company and references to violence and illegal drug use. After viewing the site, management found the postings offensive and fired the waiters.

Ironically, the company's efforts to avoid liability actually resulted in a jury verdict against it.

LITIGATION


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The Court found:

The offensive postings were located in a private chat room, access to which was restricted only to users who first received and accepted an electronic invitation;

Management had not received an invitation from the waiters, but rather used another employee's password (who had been invited) to access the chat room; and

There was a dispute as to permissive access. Although management argued it was "authorized" to access the chat room by the employee who provided her ID and password, that employee testified she felt she "probably would have gotten in trouble" if she did not cooperate.

LITIGATION


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Quon v. City of Ontario - the U.S. Supreme Court was faced with the question as to whether an employer can review work-phone text messages where the purpose is not to invade the employee’s privacy. Yes or no?

Morse v. Mer - exotic dancers advertised their personal talents on Facebook and challenged their employer’s determination that they were independent contractors under the FLSA. Were they?

TekSystems v. Hammernick - an employer sued its former employee for breach of restrictive covenants due to LinkedIn communications. Was it a breach?

LITIGATION

Petrovitch Development -- E-mails between a client and attorney are not considered privileged and confidential, if the client writes the messages from a work e-mail account. (SO, if you intend to sue your employer, don’t discuss the suit with an attorney using company e-mai.)

Steingart v. Loving Care – N.J. Supreme Court said e-mails on a personal web-based e-mail account accessed from an employer’s computer were private. The decision was contingent on the fact that use of such an account was not clearly covered by the company’s policy, and the e-mails in question contained a standard warning that the communications were personal, confidential, attorney-client communications.


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LITIGATION

Sousa v. American Medical -- The NLRB says the Company enforced an "overly broad blogging and Internet posting policy" and illegally denied Dawnmarie Souza, an investigatory interview. The company said it canned Souza "based on multiple, serious complaints about her behavior.“ According to the NLRB, Souza "posted a negative remark about a supervisor" after being threatened with disciplinary action when she requested union help. The case was settled.

Boulder Valley School District – BVSD searched several students’ cell phones after sexting was discovered. The ACLU stepped in, and the District agreed to revamp its access policy to student phones.


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LITIGATION


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The EEOC is now deciding the impact of incidental information under the GENETIC INFORMATION NON-DISCRIMINATION ACT (GINA) through social media.

There may be Fair Credit Reporting Act issues with internet investigations.

Most webposts are protected if they are anonymous as First Amendment speech.

Subpoenas can be effectuated, but are frequently fruitless.

LITIGATION


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BEST PRACTICES


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Virtual branding

Strategy

Proactivity

Policies

Communication

Practices

Training

BESTPRACTICES:STRATEGIC APPROACH


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If you trust your information to third party

vendors, you have less control over your data.

TMI can be used against you.

Coercion does NOT give consent

Be aware of unionizing/organizing language

Data breaches are a risk for any computer system. Problems are compounded with a third party.

BESTPRACTICES:BEWARE!


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YOUR AUP IS PROBABLY

ALREADY OUT OF DATE Employees’ expectation of privacy

changes with the amount of notice and authorization as to monitoring

Expectations should be balanced between employee and employer

Get yourself trained and make sure that someone is helping you out.

Security threats don't just occur in cyberspace. Protect the physical environment of stored data.

Don’t sign on for more than you are willing to ACTUALLY DO

BESTPRACTICES:YOUR CHECKLIST


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Have a clear understanding of vendors'

procedures to safeguard data, seal leaks and prevent mishaps.

You need a clear sense of access, policy, procedure and chain of command in cases of breach.

You need to know which laws apply to you, and what happens in cases of breach.

You also may want levels of access to information.

BESTPRACTICES:THIRD PARTIES


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Questions?

Comments?

Deirdre J. Kamber, Esq., [email protected]

Fitzpatrick Lentz & Bubba, P.C.

mailto:[email protected]

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