Way back in 1970, futurist and science fiction author Arthur C. Clarke effectively predicted the Internet, describing it as a synchronous system of satellites. In 1995 that prediction came true for the layperson when restrictions on Internet use to carry commercial traffic were lifted.
The Internet as we know it is no longer in its infancy, but it’s not a stretch to compare it to a lawless land; it’s still in a Wild West phase, with people mapping out territories and establishing rules as they go. Where cyberspace is concerned, people get to do pretty much whatever they’d like to, because laws dealing with the Internet are slow coming and people to enforce them are few, far between and a couple-dozen steps behind most everything that is going on in the digital landscape.
Laws are in fact forming up, though, and not all of them are aimed at citizens of the Internet; some of those laws are being implemented to protect people’s freedoms and privacy online.
Some social media sites operate under a ‘gated community’ model, meaning that you have to approve someone as a contact before they can see your information and updates. Most all social media sites have a range of privacy settings so that you can choose to actively share with the world or keep your circle of confidants tight.
Recently schools and universities have been leaning on their students to provide their online identities and passwords to officials for purposes of investigating the students’ social media activities. There are many universities that require students to allow access to their accounts by school officials; some even require spy software to be installed if their networks are used. Other colleges are pressing student athletes to consent to the monitoring of their social media use on sites like Facebook and Twitter by signing a social media policy (in fact, my paralegal was required to do such as a varsity softball player!).
Bethesda, Maryland attorney Bradley Shear has written extensively on the subject of social media and students. He says, “There are multiple incidents around the country where schools are invading the social media privacy rights of K-12 students, but it is an epidemic in colleges. When did it become legal for public universities to be able to require their students to download spying software onto their personal iPhones or social media accounts to monitor password-protected digital content?”
Now workplaces are getting in on the act. For instance, in 2010 a Maryland prison guard was forced by his employer disclose his Facebook information so that he could be screened for gang ties. The Department of Public Safety and Correctional Services threw out this practice after the American Civil Liberties Union of Maryland intervened on guard Robert Collins’ behalf, citing in their complaint that his personal privacy was violated.
Recently several states have made moves to block social media access from administrators and employers, citing the protection of First and Fourth Amendment rights. Maryland, Delaware, Illinois, and California have all passed laws protecting content marked as ‘private’ by its digital owners. Several other states have legislation pending toward the same ends.
According to free-speech expert Clay Calvert, “Ultimately, both free speech and privacy interests are at stake when public school officials demand that students reveal their passwords for their social media networks. It’s an Orwellian overreach by school officials – an effort to stretch their jurisdiction and authority over student expression far beyond the confines of campus and into the private homes where social media speech is created.”
Calvert, director of the Marion Brechner First Amendment Project at the University of Florida, continues, “I believe such legislation will eventually become the norm, because public policy and case law has indicated that requiring access to password-protected digital content may be against the law. However, since there isn’t a federal law or on-point Supreme Court decision, new laws are needed to clarify the legal landscape.”
How this will continue to play out in workers’ comp-related cases remains to be seen. As previously noted here, it’s always wise to err on the side of caution in your social media dealings, especially if you are an injured employee seeking or receiving benefits in Georgia. Seemingly innocuous postings will be taken out of context and used against you in court or a deposition to try and make you look like you’re being dishonest regarding your disability when, in fact, you are not. My suggestion is to take down social media accounts when litigation is pending or, at a minimum, freeze the account until the case closes.