United States: New Jersey Court’s Decision Provides Roadmap For Access To Employees’ Restricted Social Media Content

Last Updated: August 28 2013
Article by Philip L. Gordon

With New Jersey poised to become the twelfth state to enact a social media password protection law and scant case law addressing the circumstances when and how an employer can lawfully access employees' restricted social media content, last week's decision by a federal district court in New Jersey provides much-needed guidance for employers on the question whether and when they can use an employee's restricted social media content, provided by a co-worker, to impose discipline.  That question is critical for managers, in-house employment counsel and human resources professionals because disgusted co-workers frequently "rat out" employees who abuse or embarrass their employer on restricted social media pages or lie to their mangers and then post evidence of their fibs on their restricted social media pages. 

The New Jersey decision, Ehling v. Monmouth-Ocean Hospital Service Corp., provides a classic example of this fact pattern.  The plaintiff in the case was a paramedic at Monmouth-Ocean Hospital Service (MONOC) in New Jersey.  After news media reported that a deranged 88-year old had killed a security guard at the Holocaust Museum in Washington, D.C., the plaintiff could not resist dashing off the following post:

"An 88 yr old sociopath white supremacist in the Washington, D.C. Holocaust Museum this morning shot and killed an innocent guard (leaving children).  Other guards opened fire.  The 88 yr old was shot.  He survived.  I blame the DC paramedics.  I want to say 2 things to the DC medics.  1.  WHAT WERE YOU THINKING? and 2. This was your opportunity to really make a difference! WTF!!!  And to the other guards . . . go to target practice."

(emphasis supplied).  This post appeared on a Facebook news feed to each of plaintiff's 300 Facebook friends.  One of those Facebook friends, also a paramedic at MONOC, was a real world friend of a MONOC manager.  The Facebook friend forwarded the post quoted above and other posts from the plaintiff's Facebook wall to the manager/friend.  The manager – in turn – shared plaintiff's posts with MONOC's Executive Director of Administration.

Concerned about the post, MONOC management disciplined the plaintiff.  The hospital suspended her with pay and sent her a memo expressing concern that her comment demonstrated "deliberate disregard of patient safety."  Plaintiff, who at that time was the President of New Jersey's Professional Emergency Medical Services Association (the Union), challenged this discipline before the National Labor Relations Board (NLRB).  The NLRB determined that the discipline did not violate the National Labor Relations Act (NLRA), likely because the plaintiff's post did not speak to the terms or conditions of her employment with MONOC or involve concerted activity among MONOC employees.  The NLRB also determined that MONOC had not violated plaintiff's privacy.

Not to be deterred, plaintiff raised her allegation of a privacy violation in a subsequent lawsuit filed in federal district court in New Jersey after MONOC terminated her employment in February 2012.  In her complaint, plaintiff alleged that MONOC had gained access to her "friends only" Facebook page because a "member of upper management summoned a MONOC employee, who was also one of [the plaintiff's] Facebook friends, into his office" and "coerced, strong-armed and/or threatened the employee into accessing his Facebook account on the work computer in his supervisor's presence."  Based on this allegation, plaintiff asserted claims under the federal Stored Communications Act (SCA) and for common law invasion of privacy.  The New Jersey court granted summary judgment in MONOC's favor on both claims and, in the process, provided important guidance for employers regarding access to employees' restricted social media content.

As background, the SCA protects from unauthorized access only "electronic communications" in "electronic storage" at an "electronic communication service," provided the communications are not "readily accessible to the general public."  The court ruled that content on a restricted Facebook page satisfies each of these elements because (a) a Facebook post is an electronic communication; (b) Facebook is an electronic communication service; (c) Facebook archives user posts, thereby satisfying the requirement of "electronic storage"; and (d) a "friends only" Facebook page, by definition, is not publicly accessible.  Although this decision is not binding precedent, the New Jersey court is the second federal district court to reach this conclusion.  Consequently, unless and until contrary case law develops, employers should presume that the SCA protects all Facebook posts that are not publicly available.  Employers also should note that whether social media posts are in "electronic storage" could vary depending on whether and how the host archives content.  As a result, the SCA likely, but does not necessarily, protect all restricted social media content.

Even if the SCA protects social media content, access to that content by any authorized user is perfectly lawful.  In the plaintiff's case, the co-worker and Facebook friend who disclosed the content to MONOC management was an authorized user because he was a legitimate Facebook user and the plaintiff had invited him to view her Facebook wall by sending him a friend request.

Plaintiff attempted to rebut MONOC's defense that her Facebook friend and co-worker was authorized to view her restricted content by alleging that MONOC coerced the co-worker into accessing plaintiff's Facebook wall.  In advancing this argument, plaintiff relied implicitly on another New Jersey case, Pietrylo v. Hillstone Restaurant Group, d/b/a Houston's Restaurants. There, a jury found that Houston's violated the SCA because two managers used a hostess' log-in credentials to access a restricted MySpace page where co-workers were posting negative comments about management and customers.  When ruling on post-trial motions, the trial court determined that sufficient evidence supported the jury's verdict because the hostess testified at trial that she thought "something bad might happen" to her if she did not disclose her log-in credentials to the managers.  According to the trial court, that testimony demonstrated sufficient "coercion" for the jury to reject Houston's defense that the hostess had authorized the managers' access. 

The MONOC case presents starkly different facts.  Plaintiff's coworker and Facebook friend had independently and voluntarily disclosed plaintiff's Facebook posts to the MONOC manager.  There was no evidence that the manager pressured or coerced the plaintiff's co-worker in any way.  In addition, the manager did not ask the co-worker for his log-in credentials or "shoulder surf" his Facebook page.  Accordingly, the court held that MONOC had proved its defense that the co-worker and Facebook friend was authorized to access plaintiff's restricted social media content. 

While the SCA claim was the principal focus of the court's attention, the court also granted summary judgment for MONOC on the plaintiff's common law invasion of privacy claim. The court reasoned that an intrusion on a private sphere is a fundamental element of that claim.  However, MONOC did not intrude on the plaintiff's Facebook page:  MONOC did not access the page using her log-in credentials or the log-in credentials of one of plaintiff's Facebook friends, nor did MONOC direct plaintiff's co-worker to access the page.  Rather, MONOC, the court found, was "the passive recipient of information that [it] did not seek out or ask for."  Because there was no actionable intrusion, the court did not reach a particularly important and pressing issue, i.e., whether plaintiff's Facebook page was private for purposes of a common law invasion of privacy claim given that plaintiff permitted 300 "friends" to access her page, and none of those "friends" — as was demonstrated by the co-worker — had any obligation to keep plaintiff's Facebook posts confidential.

Employers can take away the following important lessons from this case:

  • Social media content that is publicly available is not subject to privacy protection under the federal Stored Communications Act, common law, or any other U.S. law or regulation.
  • Employers do not violate an employee's privacy rights when a co-worker independently volunteers screen shots or other information concerning an employee's restricted social media content.
  • If an employer makes a follow-up request to a volunteer to provide additional information from a restricted social media page, the employer should establish the voluntariness of the volunteer's subsequent actions, i.e., inform the volunteer that no adverse employment action will be taken if the volunteer declines the request and no special benefit will be conferred if the volunteer provides additional information, and document this agreement in writing.
  • Employers should note that even after obtaining a volunteer's free and voluntary consent to provide additional information, the volunteer should be instructed to provide only the minimum information relevant to the purposes of the investigation.  There is, however, some degree of  risk because the propriety of this type of access has not yet been addressed.
  • Finally, employers should recognize that accessing restricted social media content directly -- either by obtaining the employee's or a co-worker's log-in credentials or by "shoulder surfing" on the employee or a co-worker -- raises significantly higher legal risks than receiving screen shots or oral reports from a co-worker about an employee's restricted social media content.  Before pursuing the riskier method of investigation, an employer should determine whether the relevant jurisdiction has enacted a social media password protection law and, regardless, consult legal counsel on how to structure the investigation to reduce legal risk.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Philip L. Gordon
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.