States Continue to Enact Privacy Laws Protecting Employees from Employers

It is certainly worth noting the trend of password protection laws sweeping the nation. Several statutes have been signed into law recently prohibiting employers from seeking to gain access to employer and/or employee social media sites. Ever since Maryland got the ball rolling, several other states have passed similar legislation. These states include Arkansas, California, Colorado, Illinois, Michigan, Nevada, New Mexico, Oregon, Vermont and Washington. Overall, similar legislation has been introduced in at least 36 states. A more detailed listing of the states, the status of such legislation and a description of the legislation can be found here.

Kristin Bergman, an intern at Harvard’s Digital Media Law Project and a third year law student at William and Mary, has written an interesting piece questioning the need for such statutes. Recall that New Jersey governor, Chris Christie, raised similar questions regarding the Garden States’ version of such legislation, which has still not been made law. In Bergman’s article, she notes that according to recent surveys few employers actually seem to request social media login information, thus raising the question of whether the laws provide a solution for a nonexistent problem. In addition, Bergman provides a relatively simple, but nevertheless worthwhile, overview of certain common law claims that might be used to curb the practice (e.g. intrusion upon seclusion privacy tort, tortuous interference with contract) and other statutory considerations (discrimination laws, state data privacy laws and unfair labor practice laws)
Bergman’s article can be found here.

Fraud Examiners are Using Social Media to Gather Information

Forbes’s Walter Pavlo, who dedicates his column to white collar-crime, has an eye-opening piece on how fraud examiners are using social media to gather information on targets.  The column centers on a meeting in Las Vegas of the Association of Fraud Examiners.

The article makes the point that frequently people enjoy bragging about their interests on social media sites, such as Facebook, LinkedIn, Twitter and Pinterest.  Investigators are able to observe what individuals are claiming on social media and reconcile that same information with the target’s apparent means.  As the piece observes, “Bill in Accounting”, ‘who makes $100K/year is tweeting about his new Ferrari.”  Obviously, a red flag.

The four key areas for consideration related to the performance of an online investigation include:

·         finding out where people are claiming to spend their time;

·         assess a person’s “Likes” and “Dislikes”;

·         look for clues to determine other social media sites the target is visiting; and

·         see who people are following and being followed by and look for conflicts of interest.

Pavlo’s piece underscores the double-edged nature of the transparency social media brings with it.  As a society we might appreciate the effective way investigators utilize tools to bring potential wrongdoers to justice, as individuals it may make us inclined to look over our shoulders to see who is peering and wonder what their motivation is.

You can read the full article at   http://www.forbes.com/sites/walterpavlo/2013/06/25/criminals-beware-fraud-investigators-take-to-social-media/.

Reuters is reporting that a New York ethics panel has ruled that a judge's "friend"ing of the parents of victims of a criminal case before the judge is not necessarily sufficient to warrant recusal.  

 

The Reuters piece notes that NY is one of at least nine states in which ethics panels have offered guidance on judges' use of social media.  It also notes that, generally, while finding that a judge's joining of a social network site is not inherently unethical, judges should "tread carefully and disclose connections on a case-by-case basis."

 

The committee also reiterated in its report that recusal was up to the judge's discretion.  The article quotes Stephen Gillers, New York University Law School's esteemed professor and expert in the area of professional responsibility who makes the point that the code of judicial conduct in New York and other states requires judges to take steps to avoid even the appearance of impropriety.  Gillers is quoted as saying there is "no reason why being a 'friend' on Facebook, LinkedIn, or any other site should change the rules that have worked so well in...the physical world."

 

This represents yet another chapter in the never-ending book to be written on the incongruous relationship between technology and law.

 

You can read the article in its entirety here.