Tag Archive for 'facebook'

Can Employers Require You to Disclose Your Facebook Password?

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If you’re looking for a job in this economy, or are worried about your job security, you’re probably aware that the current job market – with unemployment over 8%, and more people returning to the job search amid signs of improvement – generally favors employers. They have a large pool of highly-qualified candidates to choose from, and they know it. Over the last few years, employers are increasingly bold in placing new conditions on employment which most job applicants would consider onerous and/or distasteful just a few years ago.

One of the most striking examples of this phenomenon comes from this story: some employers are now asking job applicants to hand over their login credentials for social networking sites, and even email accounts. Also reported here.

Some job applicants have withdrawn their applications for jobs when asked to do this. However, it’s likely that many more felt that they didn’t have that option (perhaps it was their dream job, or they had been unemployed for a long time), and have reluctantly agreed to this.

But as you can imagine, many people see this as an unnecessary invasion of privacy, and a few state legislatures are currently considering bills that would outright ban this practice. According to the article linked above, Illinois and Maryland are currently mulling legislation to ban the practice. While I don’t know if legislative action is necessarily required to deal with this issue, I do think a good “Seriously? What the hell, guys?” is in order.

I understand the need to conduct basic background investigations of prospective employees in certain industries. However, employers were able to conduct thorough background checks long before the advent of Facebook, and, traditionally, there’s always been an unwritten understanding between employers and employees that what happens outside the office is, for the most part, none of the employer’s business.

And there were always commonsense exceptions to this rule. It was, and is, considered perfectly reasonable for an employer to fire an employee if the employee is arrested or convicted of a crime. If the employee drinks heavily or uses drugs on their own time, it definitely becomes the employer’s business if it interferes with the employee’s job performance, or potentially exposes employers to liability.

Maybe I’m just old-fashioned, but I honestly have no idea how an employer would ever come to the conclusion that this type of practice is acceptable. While there’s no denying that the Internet generally, and services like Facebook in particular, have changed how we view privacy, I don’t believe that we have completely given up any expectation of privacy online.

So, how should you deal with this question, if you don’t want to disclose this type of information? Obviously, that depends on what kind of stand you want to take, and how badly you need the job that you’re applying for.

One possible solution is to scour your Facebook page and remove anything that you might not want your employer to see, or set up a separate Facebook account for the consumption of employers.

Or, if you want to be a smart-alec, you could inform the interviewer that the Facebook terms of service prohibit you from sharing your password with anyone, for obvious security reasons. But maybe some employers are from another generation and don’t really know what they’re asking for when they ask an applicant to disclose their Facebook login credentials. Maybe they aren’t aware that many people (especially younger adults who are now entering the workforce) use private messages on Facebook as their primary two-way messaging service, largely replacing email and text messages. Those messages are meant to be private. That’s not too different from an employer asking for access to your email account, or to your personal diary.

And while it’s true that information posted on sites like Facebook can theoretically be made available to everyone, there are settings designed to give users control over who sees what. Many people who have a small circle of friends and family members on Facebook may post things on that site that they’re OK with those people seeing, but wouldn’t want it to be open to the whole world.

The constitutions of some states (California, for instance) have an explicit protection for privacy rights codified into their text. This is in contrast to the U.S. Constitution, which does not have a right of privacy explicitly written into it. The right to privacy is protected by the California constitution more strongly than it is in virtually any other state. The right applies against the government (the police, etc.), as well as private parties. This means that, in California, your constitutional right to privacy applies both against the state and private companies, including your employer. While I’m not an expert on how California courts have construed this right, it doesn’t seem unreasonable that this type of conduct might already be illegal there, and in some other states.

In the long run, however, I think evolving societal rules of what’s acceptable and what’s not will determine whether or not we, as a society, think that this type of conduct is acceptable. And as the job market improves, and employees regain a little bit of the leverage that they once had, employers will get over the sense that they can engage in this type of conduct with impunity.

In some cases, the law has advanced causes well before public opinion was behind them. School desegregation and the CivilRights laws of the 1960s are good examples. More often, however, the law trails public opinion. I have a feeling that, by the time any laws governing this practice are passed, public opinion will have ruled on it long ago, making the laws largely irrelevant.

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Facebook Rant Held to Violate Protective Order

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A reminder: you shouldn’t say anything online that you wouldn’t say in person.

A court has held that a man who wrote a rant about his ex-wife on his Facebook wall violated a protective order requiring him to stay away from her. The court told him that he had to write an apology on Facebook, or go to jail for contempt of court.

Apparently, the man was so incensed about how his divorce case went and the child visitation arrangement that it crafted, that he felt the need to vent his feelings on Facebook. As mentioned earlier, the court had issued an order requiring him not to have any contact with his ex-wife. Apparently, the order prohibited him from doing anything that would cause his ex-wife to suffer “mental abuse, harassment, annoyance, or bodily injury.”

However, the article I linked to mentions that he had blocked his wife from viewing his Facebook page, and that she apparently had to have someone else log in for her to see it. This suggests that she had to actively seek out the offending wall post.

Now, regardless of what this man said about his ex-wife, it’s pretty clear (by the fact that he had blocked her from viewing his Facebook page) that he didn’t intend her to read it. And even if he did, the court’s order – requiring that he remove the post and write an apology, or go to jail, raises serious free speech issues.

It’s important to note that, in most cases, the government compelling a person to say something is just as constitutionally suspect as preventing them from saying something.

But in this case, the court did both: ordering the man to stop saying one thing (by taking down his post), and compelling him to say something against his will (by ordering him to write an apology).

I’m completely in favor of giving courts authority to issue protective orders designed to protect individuals from actual violence or harassment. However, this seems to be going too far. Regardless of whether or not this guy was a good husband, or even a good person, or what horrible things he said on Facebook, our right to freedom of speech is sacred, and the government cannot (and should not be able to) interfere with that right without an extremely compelling reason.

In this case, the ex-husband wrote something on his Facebook wall, which would only be visible to people who choose to associate with him on some level (they chose to be his Facebook friend, or take other action that allowed them to view what he writes), and the fact that the only person who might conceivably be harmed by his words (his wife) was actually blocked from viewing it, it’s pretty hard to argue that the court had a compelling reason to take the action that it did.

After all, there’s no indication that he threatened to harm his ex-wife, or intended to cause her emotional distress – or even intended for her to read the post.

I’m pretty sure that if this order is appealed, it would not hold up to scrutiny under a First Amendment analysis, and I don’t think it should. The test of our commitment to free speech is the extent to which we protect speech that is completely distasteful to the vast majority of the population. After all, when it comes to speech that doesn’t offend anyone, or with which nobody disagrees, constitutional protection isn’t needed. The whole point of the right to free speech is to protect speech that some people would want to censor.

Despite the fact that this guy’s conduct is probably protected by the First Amendment, I will concede that he probably shouldn’t have done it. And this case illustrates the fact that you shouldn’t say anything online that you wouldn’t be comfortable saying to everyone you know. This is especially true in situations where emotions can run high, such as during a contentious divorce.

Family lawyers have begun using electronic communications in text messages and on social networks as evidence in divorce and child custody cases.

While this speech may be protected by the First Amendment, and therefore not subject to criminal or civil penalties, it can often be used as evidence that can hurt a party’s case. For example, text messages have been used to prove that a husband was committing adultery, thereby voiding a prenuptial agreement. In a child custody dispute, a father whose drinking habit had raised concerns about his fitness as a parent testified that he had been sober for months. His testimony was very convincing, and he even got his AA sponsor to vouch for him. Then, he posted photos of himself on Facebook, which showed him drinking. As you might expect, he lost the case.

Just remember: the Constitution protects your right to say just about whatever you like, in whatever forum you like. It doesn’t protect you from the practical consequences of your speech, however.

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Facebook Involved in an Unusual Lawsuit between Uncle and Nephew

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Family feuds have been a common form of entertainment on television.  Many of us have tuned in to watch shows like Family Feud, Modern Family, Growing Pains, etc.  In the legal realm, family feuds have comprised of a practice termed family law.  Attorneys who practice family law are considered to have a “tough heart” by many because it is not easy watching families endure events such as divorces and custody battles.  Speaking of families and lawsuits, a recent lawsuit of a nephew sewing his uncle for harassment over Facebook pictures gives new meaning to the term “family feud.”

A man from Minnesota named Aaron Olson sued his uncle because his uncle had posted childhood pictures of him, in front of a Christmas tree, in a rabbit costume.  Rather than untagging himself from the picture, or calling his uncle and politely asking him to remove the picture, Aaron sued his uncle for harassment in a Minnesota district court.

Olson’s claim was based on the fact that the pictures were “innocuous family photographs.”  Posting such photographs on Facebook establishes a platform for mean comments to be directed towards Olson.  The court dismissed this case, and the Court of Appeals of Minnesota denied Olson’s complaint.

The Judge in the Court of Appeals of Minnesota stated that harassment occurs when words have some sort of adverse effect on the safety, security, or privacy of another person.  Therefore, mean or disrespectful comments do not constitute harm to one’s safety, privacy or security. The court ruled that the district court was correct in stating that the evidence submitted by Olson (the Facebook pictures of him in a rabbit costume, in front of a Christmas tree) did not satisfy the requirements to prove harassment.

This lawsuit is probably the most ridiculous one I have heard of to date.  The obvious lesson to take away is that if you have a minor issue with a relative, talk to them.  The power of effective communication can do wonders, keep people out of court, and put the money spent on potential litigation back into your pocket!

More importantly, when frivolous suits are brought into court, it is a misuse of the judicial system and a waste of judicial resources.  People should realize that the judicial system is there to tend to complex matters that cannot be solved in the home or office environment, not minor family feuds over embarrassing photos.

So, a few tips to people out there.  Before thinking about going to court, evaluate the basis of your lawsuit.  If your lawyer explains things to you, you will be hit with a hefty legal bill.  Rather than depending on your lawyer, think about how much merit you have in your claim.  Next, think about solutions that do not involve litigation.  Often, litigation complicates matters before reaching a resolution.  If there is a quicker way to achieve some closure out of court, go for it.  Lastly, confide in a close confidant to see if your potential claim passes the “straight face test.”  Specifically, after conveying your claim to your confidant, examine their expression.  If it is not of a straight face, and rather is one of disgust, surprise, or awkwardness, it is likely that your lawsuit is frivolous.  Avoid filing it and resolve matters in the comfort of your own home!

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Why SOPA Will Turn The Internet Into A Television

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It’s a sad state of affairs when our country’s internet might become more censored than China’s.  Because that’s apparently the kind of plan that Texas senator and professional hypocrite Lamar Smith has in store for the country with his Stop Online Privacy Act bill.  Thankfully though, our president along with those still looking out for our Constitution appear to have taken enough action to likely put SOPA down before it becomes law.

On paper, SOPA might initially seem like a good idea.  That’s because much like every bill introduced in Congress, SOPA is couched in patriotic, agreeable language that ultimately tells the public nothing about its horrible insides.

If you haven’t been following the news and haven’t heard of SOPA, just pop those letters into Google and watch your screen explode with results.  The bill proposes to end online piracy of movies, books, television shows, music, etc. by criminalizing the streaming/transmittal of such copyrighted content.

Now again, this might sound like a good idea at first.  Online piracy is costing our country’s economy millions of dollars in taxes, not to mention even higher figures for those who produce the material.  SOPA would likely impede a lot of it by way of the bill’s strict criminal penalties.

However, the trade off is far worse as passing it would undoubtedly change the way the internet is used forever, or at least until SOPA is repealed.  The internet under SOPA would no longer be a place for the free exchange of ideas; rather it will become a commercial venue for companies to reap high revenue while leaving users with a world wide web more akin to a television set than the internet we know today.

How would SOPA do this?  Before we get to that answer, it’s important to first discuss the way television works.  Yes, I’m aware everyone out there knows how to work a television, but humor me.  Television delivers content to viewers via a fixed one way path.  It’s fixed in the sense that what we see on T.V. is controlled completely by the stations and studios that produce and broadcast the programming we see.  In this sense, other than our ability to change channels, viewers have no control over the content that will appear from the television.  The T.V. is a fixed medium in which corporations have full control of both the content and advertising that is transmitted.  Sure, people can buy cable or spend money on getting premium channels like HBO, but in general everything that we see has been carefully vetted and controlled.

The internet as it is today, on the other hand is the exact opposite of television.  It’s a non-fixed medium in which any user may create, post, and view the content created and posted by other users.  It’s a medium in which corporations and the general public are on equal footing in terms of reach, in that anyone who has an internet connection can view both a commercial website or a person’s personal web page without having to pay anything extra to do it.  There’s no barrier to entry, anyone can post anything, as long as it doesn’t violate our country’s law.

This is where SOPA comes in.  If the bill somehow were to pass, the stiff penalties it carries would change the internet into a slightly more interactive television set.  You see, SOPA would make it a criminal offense for anyone to post copyrighted material.

Copyright content is vast: it’s not just movies, T.V. shows, or music; it’s also pictures, poems, news articles, short stories, pretty much any type of content that can be created by people can also be copyrighted.

For example, if one were to change their profile picture on Facebook to an image of Optimus Prime from Transformers and the image is one that has been copyrighted by Hasbro, the current owner of the Transformers property, that Facebook user’s page could be shut down.  And if everyone on Facebook did the same, under SOPA, all of Facebook could be shutdown too for copyright infringement.

YouTube, forget about it, that site would be down faster than a piñata full of hundred dollar bills at a birthday party.  SOPA would also make it illegal for sites to even link to pages that contain copyright infringing materials.  This means a search engine, like Google, could no longer bring up all the pages that it finds for us every day.  Furthermore, even if someone were to try to go directly to a website with some infringing content, under the broad language of SOPA, internet service providers would be required to block access to those websites.

So what kind of internet would we be left with it SOPA were to pass?  We’d be left with a television that we can type on.  It would be an internet run by corporations, where any time we want content, we’d have to go directly to the only source that produced it.  We’d have to suffer through their advertisements, registration requirements, and in all likelihood we’d also probably have to pony up some cash on top of it all.

The message here is a simple one: SOPA is bad for the internet.  But of course, that’s just my opinion.  Though in this case, I’d find it hard to imagine if anyone other than a corporation would disagree with me on this point.

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Facebook Postings May Be Used Against You in a Divorce

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Social networking websites have often found their place in court, especially during voir dire or criminal proceedings.  Yet again, social networking sites are being used, but now in a different context.

In a Connecticut divorce proceeding, a judge is requiring that a couple submit their social networking passwords to the court.  Attorneys of both parties are to exchange passwords for their clients’ Facebook and dating websites.  Such evidence is being used to help evaluate how each party feels about their children, and their ability to take care of them.  Essentially, these passwords are being used to help resolve a custody battle.

The court issued an injunction to deter both parties from deleting any material on the websites, and ordered the attorneys to exchange passwords.  It has also been ordered that neither party will go on the websites of the other and post any messages, status updates, etc.

There are mixed reactions to the judge’s orders.  People are objecting because they feel this is an invasive discovery tactic which invades the privacy of the other party.  People log onto their social networking sites almost every day, sharing thoughts, exchanging communication, and revealing information about them.  Is it really fair to have all of these expressions used in court?

Divorce proceedings in particular are sensitive because they deal with the dissolution of a valued institution, as well as potential custody issues regarding children.  Can a judge really evaluate parents’ true personas and abilities as caretakers from information on these sites?  Many feel that these sites only reveal everyday expressions that are not relevant to an individual’s caretaking abilities.  Moreover, such information is an invasion of privacy and may be used unfairly to determine if a person is fit to take care of his or her child.

Of course there is another side to this argument.  This tactic does compromise Facebook’s policy of not exchanging passwords.  It also invades someone’s privacy.  However, when an individual enters into legal proceedings, it is expected that a certain amount of private information is revealed.  Unfortunately, this is a natural consequence of litigation; there are times when a door is opened, and the other side learns of personal information.  Therefore, many feel that there is nothing wrong with the judge’s order.  Common sentiments are that this information will increase our legal system’s ability to make the “proper” decision.

A potential solution that people have proposed is to label any printed documents from these sites as “privileged.”  Therefore, this information will fall under the attorney-client privilege and will not be submitted into evidence.  People, however, need to better educate themselves on this privilege.

A client cannot just “put” information into the protection of privilege because it may be pertinent evidence.  The attorney-client privilege ensures that communication between attorneys and clients, be it written or oral, will be confidential.  Further the work product doctrine falls into this privilege and ensures that an attorney’s mental impressions and/or work put into the case will remain confidential.  The other side may never obtain the attorney’s mental impressions.

However if a significant showing of necessity is pleaded in court, then a party may obtain work product such as interviews, reports, notes documenting meetings, etc.  Overall, the court does establish guidelines on what information can be privileged.  Clients cannot just put any information they want into the “privilege bubble.”

All in all, as technology consumes our lives, it also finds its way into court.  Lawyers already use sites such as Facebook to learn about jurors and/or defendants in criminal proceedings.  It is only natural that such a tactic be used in other legal proceedings as well, such as ones involving divorce.

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