Social Media and Electronic Communications
in Law Enforcement:
A Legal Overview
Frederick (“Rick”) Joyce
Chair, Communications Practice Group
Venable LLP, Washington, DC
© 2008 Venable LLP
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© 2010 Venable LLP
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Pope Benedict on Social Media:

2009: Social media is a “poison that makes our
faces darker and makes us smile less, stopping
us from greeting one another or making eye
contact.”

2010: “Priests can rightly be expected to be
present in the world of digital communications …
through means such as images, videos, animated
features, blogs and Web sites.”

www.pope2you.net
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Sgt. Stedanko
Cheech & Chong’s “Nice Dreams”
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Online Demographics in the U.S.
(Pew Trust survey 2009)
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What are “Social Media”

Websites

Blogs: Web-based log, diary, essay

MySpace/Facebook

YouTube

Chat groups/bulletin boards

Twitter/Short Message Services/SMS/”texting”

LinkedIn/Plaxo (professional/business directories)

Social Groups/Virtual Worlds
(SecondLife)/Gamers
© 2010 Venable LLP
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Social Media Statistics

Social networks and blogs are the 4th most popular
online/Internet activities, including personal email.

If Facebook were a country, it would be the fourth most
populated place in the world (larger than pops of Brazil,
Russia and Japan)

It took radio 38 years to reach 50 million listeners. Terrestrial
TV took 13 years to reach 50 million users. The Internet took
four years to reach 50 million people. In less than nine
months Facebook added 100 million users.

YouTube is likely to serve over 75 billion video streams to
around 375 million unique visitors during this year.

The top three people on Twitter (Ashton Kutcher, Ellen
DeGeneres and Britney Spears) have more combined
followers than the entire population of Austria.
© 2010 Venable LLP
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Facebook Demographics

35-54 year old demo is growing fastest with a 276% annual
growth rate

55+ demographic has a 194.3% growth rate

25-34 year population on Facebook is doubling every 6
months

There are 27,912,480 users 21+, representing 66.3% of all
users

Miami fastest growing metropolitan area (88.5%); Atlanta
(6.4%) is the slowest

There are more females (55.7%) than males (42.2%) on
Facebook – 2.2% are of unknown gender.

Largest demographic remains 18-24 year olds (40.8%) but
that’s decreasing as a percentage of overall users.
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Social Media and Law Enforcement

Use of Social Media for Community Outreach

Use of Social Media for Assistance with Law
Enforcement (Judicial Processes/Electronic
Discovery Implicated)

Use of Social Media for Workplace or Personal
Communications (Employee Issues and Civil
Liability)
© 2010 Venable LLP
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Social Media and Legal Liability:
Liability issues similar to making a publication available to the
public. Legal liability issues include:







Defamation
Intellectual Property Rights (Copyright/Trademark)
Trade Secrets
Right of Publicity
Publication of Private Facts
Invasion of Privacy/Trespass
California Public Records Act (“information relating to
the conduct of public’s business”)
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Constitutional Foundation for Electronic Privacy
Rights:

First Amendment (freedom of speech; free press; right of the
people peaceably to assemble & to petition the government for a
redress of grievances)

Fourth Amendment (right of the people to be secure in their
persons, houses, papers, & effects against unreasonable
searches & seizures)

Common Law: “Reasonable Expectation of Privacy”

Other Common Law Privacy Rights (invasion of privacy;
trespass; anti-defamation laws)

Katz v. United States (U.S. Supreme Court, 1968)
(telephone/electronic communications can be protected
against unauthorized searches)

But, is anything published on the Internet subject to “privacy
rights?”
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Many Federal Laws w/Privacy Implications
 CAN-SPAM Act
 Children's Online Privacy
Protection Act
Communications Assistance
for Law
Enforcement Act
Fair Credit Reporting Act
Gramm-Leach-Bliley Act
Privacy provisions
Gramm-Leach-Bliley Act
501(b) provisions on security
of customer information
Telecommunications Act
Health Insurance Portability &
Accountability Act
USA PATRIOT Act
U.S.-EU Safe Harbor Agreement
Bank Secrecy Act & Anti-Money
Laundering
Rules
OFAC compliance
Federal Right to Financial Privacy
Act
IRS Information Disclosure Rules
© 2010 Venable LLP
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Electronic Privacy Laws

Section 705, Communications Act of 1934 (prohibits
interception & disclosure of wire or wireless
communications)

Federal Wiretap Act (1968)

The Privacy Act of 1974 (governs use of computerized
databases)

Electronic Communications Privacy Act (1986)

Stored Communications Act (1986)

Communications Assistance for Law Enforcement Act
(CALEA) (1994)

Controlling the Assault of Non-Solicited Pornography &
Marketing Act of 2003 (CAN-SPAM)
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Electronic Communications Privacy Act of 1986
(cont.)

Extended wiretapping protection to cellular telephones,
private networks, & intra-company communications

ECPA was designed to address anticipated changes in
the communications industry, but, drafters did not
contemplate Internet growth.

BUT, there’s no mention of the “Internet” in ECPA, nor
Blogging, nor web-hosting, nor e-mail, nor Social Media.
© 2010 Venable LLP
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Stored Communications Act
Title II to ECPA, the Stored Communications Act (“SCA”) makes it
unlawful for a provider of an electronic communications service to knowingly
divulge the contents of a communication while in electronic storage.
Exemptions: A “service provider” may divulge electronic
communications with the lawful consent of the originator or an addressee or
intended recipient of the communication. Determining which persons or
parties are the “addressee” or “intended recipient” can be difficult,
particularly with respect to personal emails sent to or from employees.
Federal/Circuit Courts have held that the “Service Provider” exemption
allows employers to retrieve all messages stored on their own networks.
Fraser v. Nationwide Insurance (2003, 3rd Circ.) & Bohach v. City of Reno
(D. Nev 1996). Best practice would be to let employees know this.
© 2010 Venable LLP
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Public/Government Workplace vs. Private
Workplace:

U.S. Constitution Protects Citizens Against “state” or
government action; so; 1st & 4th Amendment claims
possible vs. law enforcement offices as employers.

Absent a contract or union agreement, most private
employees are “at will” & can be terminated for any reason
absent some law protecting a given action (ie,
whistleblowers). First Amendment gives them the right to
speak, but, they can suffer consequences for their speech.

Public Employees are Different: Action by Employer of
Government Workers is by Definition “Government Action”;
gov’t job is a “benefit.”

Public Employees have Right to Speak About Matters of
Public Concern (Pickering v. Board of Education, 391 U.S.
563 (1968) (unless the speech adversely affects efficiency
or effectiveness of operations)
© 2010 Venable LLP
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Social Media and Government Workers:

Balance between right of public employees to discuss matters of
public concern vs. cannot adversely impact employer’s operations
or disclose confidential information (Anderson v. McCotter, 100
F.3rd 723 (10th Cir. 1996)(can’t fire public employee who speaks
out against employer on a matter of public concern unless the
speech adversely affects “efficiency or effectiveness” of
operations)

Use of Federal Government Equipment & Time for Social Media
May Violate Govt Ethics Regulations
 5CFR 2635.702: Can’t use public office for private gain
 5CFR 2635.703: Can’t use nonpublic information to “further
private interests”
 5CFR 2635.704: Can’t use govt property for “other than
authorized purposes”
 5 CFR 2635.705: “employee shall use official time in an
honest effort to perform official duties.”

What is Your Office’s Written Policy re: “social media”?
© 2010 Venable LLP
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Top Reasons for Employee Termination in re:
Social Networks:

Abuse of “official” workplace sites. See also Blakey v. Continental
Airlines, S. Ct of NJ: employer could be liable for
harassing/defamatory content postings if it has “reason to know” &
elect. bulletin board is “related to the workplace”

“Violating Company Policies” (poor-mouthing employer or
employees)

Divulging trade secrets (US soldier fined & demoted for publishing
“classified” info on his blog)

Personal blogging on company time (USDA prohibits chat rooms)

“Inappropriate” or Libelous Content (“Washingtonienne”;
inflammatory or controversial commentary)
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Inappropriate Online/Social Network Postings
Employee Disciplinary Cases:

Employee wrote a blog which contained “highly personal
vituperative comments about her employers, union
representatives, and fellow teachers.” Court ruled that
“legitimate administrative interests” of school district
outweighed First Amendment rights. Richerson v. Beckon,
2009 U.S. App. LEXIS 12870.

Court found in favor of school vs. teacher whose MySpace
postings showed “unprofessional rapport with students”;
school could find “disruptive” a teacher’s provocative on-line
discussions with students. Spanierman v. Hughes (Dist.
Conn. 2008).

Nebraska Supreme Court upheld State Patrol’s discharge of
trooper discovered to have joined the Klan who participated
in off-duty web discussions with Klan members. “Nebraska
public policy precludes individual from being reinstated to
serve as a sworn officer in a law enforcement agency if the
individual’s service would severely undermine reasonable
public perception that the agency is uniformly committed to
equal enforcement of the law … without regard to race.”
Nebraska v. Henderson and the State Law Enforcement
Bargaining Council, 277 Neb. 240 (2009).
© 2010 Venable LLP
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Recent Legal Developments in Social Media:

Ricobene v. JP Morgan Chase (IL Cir Ct. 2009): Invasion of Privacy/Consumer
Fraud claim vs. collection agency/car repo that posted embarrassing messages on
her MySpace site, case was dismissed.

Werner v. County of Northampton (PA), 2009 WL 3471188 (3d. Cir. 2009): county
coroner took death-scene photos home, his son uploaded to MySpace with
disparaging caption; father of victim sued county for invasion of privacy/reputational
harm. Case dismissed, photos themselves not a “false statement.”

Yath v. Fairview Clinic, 767 NW2d 34 (Ct. App MN 2009): Employee in violation of
clinic’s policy posted patient’s medical file to MySpace; posting taken down in 48
hours. Court found even a “temporary” posting meets “publicity” element of invasion
of privacy; but, clinic not liable for “unforeseeable” conduct of its employees.

A.B. v. State, 885 NE2d 1223 (Ind.2008): 14 yr old charged with “criminal
harassment” for MySpace postings about her school principal. Court dismissed,
finding “private group” postings not likely to be read by the target.

Horizen Group v. Bonnen, (IL Cir. Ct. 2010): Landlord sued tenant for disparaging
tweets re: “moldy apartment”. Court: tweet “too vague” and “lacks any context.”
© 2010 Venable LLP
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Other Web/Electronic Privacy Issues:

Email: Can you monitor employee emails? Courts now
generally assume that emails are monitored; “no reasonable
expectation of privacy.” NLRB opinion says you can’t prohibit all
non-business use of office emails as they might include union
solicitations (Pratt & Whitney), but, reasonable restrictions on
personal email/Internet use are ok (Associated Press).

Internet Use: Problems related to accessing public files from
office vs. “private folders”; court decisions are mixed as to
employee’s “expectation of privacy.”

Electronic Bulletin Boards: In Konop v. Hawaiian Airlines, an
airline executive used third party access codes to access
pilot/employee's "secured" website where unfavorable
comments about the airline had been posted. Pilot sued airline
for violation of the Stored Communications Act in that
supervisors were not authorized "users" of the employee's
secured website without proper authorization. 9th Cir. Appeals
Court reversed lower court and sided with pilot. Other Circuits
have not followed Konop.
© 2010 Venable LLP
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Best Practices for Law Enforcement re: Social
Media

Have clearly defined internal rules & procedures for
handling every form of electronic communications,
including all Social Media.

Electronic communications/social media policies need to
be in writing and should be reviewed by relevant legal
authorities (e.g., document retention and disclosure
policies).

They need to be explained to all employees and, where
relevant, disclosed to public users.

These policies need to be routinely honored & enforced.

They need to be revised whenever new laws, cases,
technologies or situations warrant their reconsideration.

If criminal conduct is suspected, court involvement may
be necessary.
© 2010 Venable LLP
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Suggested Social Media Policies, Notices,
Disclaimers

Disclaimers re: Not Responsible for Third Party Postings and
Content

“Take-down Policy”: Inappropriate content, unauthorized
third party content

General Disclaimer/Limitation on Liability re: Social Media
content

Disclose the Stated Purpose of Your Social Media

Notice re: Public Records Requirements re: Postings

Avoid Unauthorized Use of Third Party Materials/Proper
Attribution/Protect Intellectual Property Rights

Limit Authorized Users/Managers/Editors of Social Media

Be Mindful of Privacy Implications
© 2010 Venable LLP
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© 2010 Venable LLP
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