I attended a program presented by the Los Angeles County Bar Association on social media. I expected to get a general overview of legal issues inherent in social media, from the perspective of the entertainment law experts on the panel, so that I could glean new policies or procedures to recommend to my own clients--in house counsel and human resource professionals--for their company's social media policies. As the panel's discussion/debate turned to legal ethics, however, I was reminded of something Bill Vaughan said, "People learn something every day, and a lot of times it's that what they learned the day before was wrong."
Before I attended the program, I believed that anything a person posted on their social website page or profile was "public" information. For example, people could not expect to keep their age a secret if they posted on Myspace the year they were born. I am not alone in that thinking. One of the panelists, Adam Clayton Powell, III, Vice Provost for Globalization at USC, stated his comparable opinion: "Anything on Facebook is as public as if it was published in the LA Times." Although this specific circumstance has not arisen for me in my own investigations, I did not up until this point find any legal or ethical dilemma in looking at an employee's Facebook page during an investigation into that employee's wrongdoing. For example, if an investigator must discern whether an employee made sexually offensive comments about a coworker on Facebook, it made sense for the investigator to go to Facebook and look at the posting to verify the accuracy of the alleged misconduct.
To my surprise, another member of the panel, Chris Kelly, Chief Privacy Officer for Facebook (and candidate for California Attorney General) pointed out that Facebook is unlike other social media Web sites in that Facebook has selective privacy settings that allow the Facebook member to decide which friends can view certain posted comments, thereby creating an expectation of privacy over private information. (MySpace and other social networking sites have a binary privacy setting, which is less selective.) Other sites have no privacy settings at all.) Moreover, Facebook's Terms of Use prohibit the unauthorized sharing of information. That is, your Facebook friend whom you have allowed to see your birthday, cannot then go tell all of his or her friends that you are 35 (but you don't look a day over 30.) This was a point that even panelist Ben Sheffner, Counsel for Legal Affairs at NBC Universal, found surprising. Last, it is unethical for an attorney/investigator to use deceit to obtain access to the Facebook page of someone they are investigating. Presumably, the alleged wrongdoer would not (to use a new verb) friend the investigator or the human resources department if he or she knew who was actually seeking access or why. This point was made by the fourth panelist, Roland Trope of Trope & Schramm.
Yet, despite Mr. Kelly's assertions, the issue of whether a person has a right to privacy on a Facebook profile is not set in stone, even in California. Facebook is currently being sued in a class action lawsuit that challenges its privacy settings as misleading and alleges that the settings actually expose users' private information without permission.
That being said, as an attorney and investigator, I have been persuaded that it is not prudent, whether it is 1) a question of ethics, 2) a concern for violating the Terms of Use or 3) an invasion of privacy, to look at a person's Facebook profile without the user's express permission during an investigation. I will, however, take a party or witnesses' statements on the content of a Facebook page and, in all fairness, I will also seek permission from the "accused" to see Facebook information in order to disprove the alleged behavior. In any other circumstance, however, pending an investigation, Facebook is off limits.
What about a different set of facts? For example, what should an attorney or investigator do when the alleged misconduct is the creation of a social media page with the purpose of badmouthing the employer? This was the case in Pietrylo v. Hillstone Restaurant Group, USDC D.N.J. Case No. 2:06-cv-5754 FSH-PS? Is the invasion of privacy justified? Do non-attorney investigators have to consider the ethical issues also?
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