Friday, February 26, 2010

To Facebook Or Not To Facebook? That Is the Question For Investigators.

Lessons I learned from attending the LACBA’s program “Brave New Web: Social Network's Challenges to Copyright, Privacy and Legal Ethics.”

Last night I attended a program presented by the Los Angeles County Bar Association on social media. The program was presented by and for the Entertainment Law and Intellectual Property section so it wasn’t unusual that I was the only employment lawyer in the room. 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.”

That is, before I attended the program, I believed that anything a person posted on their social media website page or profile was “public” information. That is, that a person could not expect to keep their age a secret if they posted on their Myspace page 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 their Facebook Wall, it made common sense that the investigator would go onto Facebook and look at the posting to verify the accuracy of the alleged misconduct.

But, to my surprise, another member of the panel, Chris Kelly, Chief Privacy Officer for Facebook (and candidate for California Attorney General),pictured with me above, pointed out that Facebook is unlike other social media websites (MySpace, Twitter, etc.) in that Facebook has selective privacy settings which allow the Facebook member to decide which of their “friends” can view certain posted comments, thereby creating an expectation of privacy over the “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 prohibits 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 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 “friend” the investigator or their company’s human resources if they knew that that person through subterfuge was actually seeking access to information or pictures that might impeach the alleged wrongdoer’s version of events, a point made by the fourth panelist, Roland Trope of Trope & Schramm.

Yet, despite Mr. Kelly’s argument that users have a selective expectation of privacy on Facebook, the issue of whether a person has a right to privacy on their 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 /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 users 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 their Facebook information in order to disprove the alleged behavior. In any other circumstance, however, pending an investigation, Facebook is off limits. Do you agree? Is this going too far? What should an attorney/investigator do when the alleged misconduct is a social media profile/page that’s purpose is to “badmouth” the employer, as was the case in Pietrylo v. Hillstone Restaurant Group?,

Is the invasion of privacy justified? Do non-attorney investigators have to consider the ethical issues also? Leave your comments.