Emerging Social Media Risks. Claire Lee Reiss Program Director National League of Cities Risk Information Sharing Consortium

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1 Emerging Social Media Risks Claire Lee Reiss Program Director National League of Cities Risk Information Sharing Consortium

2 How is social media changing? New categories, new providers, an expanding group of internet based technologies that enable the creation and exchange of, and communication about, user-generated content. " Social Networking Facebook * Twitter Google + My Space Business Networking LinkedIn GovLoop * Most heavily used social media site Multimedia sharing Pinterest Instagram You Tube Reddit Blogging Blogger Wordpress Tumblr

3 How is social media use changing? Of the 69% of adults who go online:" More women (75%) than men (63%) Higher use in younger age groups (18-29=92%), but 57% age All races & ethnicities All income levels All education levels, but higher for the college educated Pew Internet & American Life Project August 2012

4 How is access to social media changing? Mobile devices are driving the growth of social media " 40% of cell phone users, 28% on any given day" Slightly more women than men" Far more young " All races, but fewer white non-hispanic" More people in higher income brackets" More people with college education" (And employees are bringing their cell phones and tablets to work)" Pew Internet & American Life Project August 2012 Nielsen, The Social Media Report 2012

5 Role of the BYOD* movement BYOD increases access to social media" Informal BYOD program" No criteria for who participates No written agreement with employee = no control Ø Security (encryption, password, malware protection) Ø Software & updates Ø Who uses the device, when & how Ø Security incident response (remote wipe) Ø Monitoring & privacy expectation Formal BYOD program can address these issues" "

6 Official & personal use are still a continuum Government official social media" Unofficial government social media Elected official constituent & political social media" Employee professional social media" Purely personal social media

7 How is official city social media being used? Distribute and receive information about:" Tourism, recreation & special events Road closure/transit disruptions Conditions that city needs to address Weather Emergencies (make disclaimers about reporting) Economic development Public service messaging Recruitment Crimes

8 Social media still has benefits Not just a duplicate city website Push a variety of content more immediate Contributes to transparency & response Receive feedback from different groups Reach a diverse audience with targeted messages Operational support Crowdsourcing Inexpensive (but not cost free)

9 Old risks remain and new ones are emerging Privacy & confidentiality Damage to city reputation Right to free speech Public records/e-discovery Inaccurate information Open meetings Intellectual property Harassment, defamation & indecency Accessibility Employment practices liability Most laws involved are not social media specific

10 Privacy & confidentiality Who has an interest The government & its employees Citizens What to avoid disclosing Personally identifying information Personnel records Medical, health & disability Photographs without permission Information about juveniles/minors City attorney work product Official & personal social media

11 Damage to reputation Personal social media

12 Right to free speech - citizens Designated public forum? Exclude comments re. public interest on viewpoint if narrowly drawn to serve compelling gov t interest Viewpoint neutral restrictions OK if narrowly tailored, serve significant gov t interest, other channels of communication open City of Official social media ALERT :: High heat and humidity can lead to unhealthy air quality, especially toward the end of this week. Take steps to limit your pollution by changing your commute, filling up your car after dark, and avoiding the use of gas-powered lawn equipment. Citizen Okay, I won't fire up my lawn mower. I'll find myself an illegal immigrant (should be lots of them in, a "sanctuary city" that evidently doesn't believe in the enforcement of federal laws it doesn't like) and have him fire up HIS mower. (...let's see if City of un-friends me...)

13 Right to free speech employees Private concern employee has same protection as private employees Public concern employer can restrict if necessary to maintain government operations Balancing test New Jersey teacher case Referred to students as future criminals Termination upheld not public concern Official & personal social media

14 Public records/e-discovery Official social media Issues: Have to capture as public record/provide in discovery? Will social media history be there? Retention period Organization & search ability Creation public records on personal social media Possible Solutions: Website as primary site; link back from social media Won t capture public comments on social media Turning off comments only partly effective Subscribe to outside service to archive

15 Inaccurate information Hacking by outsiders Manipulation of public for personal ends Errors by staff Dates & deadlines Locations & directions Special events Street & lane closures Access to public services Warning Inconvenience or actual harm?

16 Open meetings Local government officials use of social media" Creating a meeting that should be open but isn t" Look at requirements of open meetings laws" Similar to concerns about s conversation string with quorum" Private conversations with other officials during public meetings " Public doesn t know what is being said" Personal social media

17 Intellectual property Similar concerns to other publications Copyright Trademark/Service Mark Posting by municipality Ensure have rights to post material or fair use Posting by 3 rd parties Is government the publisher? Or is the poster? On Facebook can control through settings Official social media Have mechanism for responding to complaints Remove consistent with viewpoint neutral policy

18 Harassment, defamation, & indecency Harassment" Discrimination - protected class Cyberbullying & cyberstalking Official & personal social media Other threatening conduct Defamation Libel Slander Indecent material Protection from liability for third party posting: Communications Decency Act Host/sponsor immunity from liability for potentially unlawful or defamatory speech posted by someone else Excludes content posted by host/sponsor or its employees Excludes intellectual property claims

19 Accessibility Accessible public accommodations Accessibility often not controlled by user Don t use online resources exclusively Ensure alternative sources are equal Official social media

20 Employment related issues Recruitment & investigation Labor relations Privacy rights Expanded scope & course of work Employee friendships Inappropriate conduct Productivity Personal social media

21 Recruitment & investigation of employees Benefits Reach a wider applicant pool Enable a thorough background check There is lots of scrutiny of public entities What if miss online history that would disqualify? Challenges Potential privacy violations if password protected No hacking or subterfuge Increasingly, no demanding access Manipulation of the process by the candidate

22 Information you don t want to have If you don t hire them, can they sue? Race or national origin Personal relationships Religious preferences Protected class political activities Union affiliations Sexual preference Disabilities Pregnancy Age

23 Balancing needs in background checks Before using the internet for background checks KNOW: The state s laws DO NOT: Access social media under false pretenses DECIDE: What info are looking for, and exclude protected information ASK: Is the information sought a valid predictor of job performance? DO: Include in written authorizations for background checks a reference to the internet/social media SEPARATE: Decision maker from internet investigator

24 NLRB penalizes some social media policies Social media use as protected concerted activity Discussion of terms and conditions of employment In a manner meant to induce concerted action Akin to water cooler discussions For cities, only in states with similar worker protection Per NLRB, social media policy violates employee rights if prohibitions chill protected concerted activities Disparaging comments about employer Posts that depict the employer in any way More information NLRB Acting General Counsel Memo - 8/18/2011 Review of cases related to social media use

25 Employee privacy rights Public employers under special scrutiny but subject to fourth amendment search and seizure requirements When can employees expect privacy? Work time v. off duty Employer device v. employee personal device BYOD Can the employer monitor employees? City of Ontario v. Quon - 4th amendment search & seizure: If employee has reasonable expectation of privacy Then any 4th amendment search must be reasonable Best defense: a clear written policy that the employee has no reasonable expectation of privacy

26 Expanded scope and course of work When is the employee working? Social media BYOD - Portable electronic devices Remote access to Do the benefits outweigh risks? Workers compensation Vicarious liability Potential labor law issues if non-exempt

27 Employee friendships Social media friendships can be trouble Personal social media beyond employer s control Mass friending of co-workers Personal disputes on social media carry over into workplace Work disputes carry over onto social media Supervisors & subordinate friendships a particular danger Possible claims: Slander Stalking, bullying and retaliation Breach of privacy & confidentiality Discrimination Find Friends

28 Supervisor & subordinate friendships EMPLOYEE POSTS: OMG my boss is a total pervvy wanker!! Always making me do stuff just to piss me off! WANKER! BOSS POSTS: Hi. Guess you forgot about adding me on here? Firstly, don t flatter yourself. Secondly, you ve worked here for 5 months and didn t work out that I m gay? I know I don t prance around the office like a queen, but its not exactly a secret. Thirdly, that stuff is called your job, you know, what I pay you to do. But the fact that you seem to be able to up the simplest of tasks might contribute to how you feel about it. And lastly, you seem to have forgotten that you have 2 weeks left on your 6 month trial period. Don t bother coming in tomorrow. I ll pop your P45 in the post, and you can come in whenever you like to pick up any stuff you ve left here. And yes, I m serious Biggest concern here the supervisor s reaction Breach of privacy? Defamation? Employer responsible?

29 Strategies for official social media Adopt and follow a public comment policy Viewpoint neutral prohibitions Post hours of monitoring Assign responsibility for monitoring Keep content current & correct errors promptly Require use of city specific user name format Have employees disclose affiliation Include social media in records retention policy Use website as primary repository Viewpoint neutral prohibitions: Off topic Confidential Obscene Political IP Photos Minors Defamation Harassment

30 Strategies for personal & professional social media Little direct control - cannot prohibit all mention of city Incorporate social media into code of conduct/ethics Train employees & officials Require disclaimer by employees posting on public matters on other sites Be cautious and comply with legal requirements when using social media in hiring" Evaluate employees based on performance"

31 Technology strategies Blocking access at work Doesn t address many of the problems Social media evolves rapidly Will not eliminate personal use of social media at work Brand the government as out of step Monitoring Same concerns as above, but give notice that: Ø The city may monitor to position it to conduct occasional audits if necessary, and Ø There is no reasonable expectation of privacy when using government technology

32 Social media policies Culmination of previous strategies: a social media policy Sets policy on how official social media is operated Provides context for considering the issues Serves as a point of reference Provides a basis for training Level of detail in policies varies For examples can Google city social media policy Don t copy others social media policies Not generally posted on social media sites

33 Elements of social media policies City s official social media Purpose for and scope of official social media Assignment of administrative responsibilities Expectation of compliance with laws Standards for employee use & interaction with the public Public comment policy and disclaimer language Other social media issues Incorporation of other relevant policies by reference Require disclaimer when posting on other sites as city employee Respect privacy and confidentiality of citizens & other employees Rules about use of city technology to access social media No expectation of privacy when using city technology

34 Law enforcement social media policies Heightened concern: Confidentiality Safety of the city s officers Compromising situations Similar provisions but law enforcement context: Discussion of police matters Photos of police activities Photos of self or other officers in uniform Identification of self or others as police officers Compromising photos

35 Pool use of social media Pool social media for communication with members? Investigation of claimants? Potentially useful in workers comp & personal injury Formal discovery Informal discovery Publicly accessible information is fair game Authenticity & hearsay issues Friending adverse parties only OK if no deception Ethical concerns for lawyers if friend or communicate directly with represented adverse party Fraud investigations? Investigation of witnesses? Intimidation if they know about it?

36 Questions? Claire Lee Reiss Program Director, NLC-RISC National League of Cities 1301 Pennsylvania Ave., NW Washington, DC