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Using Privacy Against Us Posted: 11 Nov 2008 11:04 AM CST The demise of Detroit Mayor Kwame Kilpatrick's political career illustrates the perils of thinking we're not being watched. Of course, it also illustrates the perils of arrogance and stupidity, which usually fell the mighty well before technology or privacy implications kick in. Nevertheless, privacy kicked in. In a PC World story last week discussing social media in the context of e-discovery rules, technology writer Kim Nash opined on the bemoaning implications for privacy of Mayor Kilpatrick's plight. In social media we talk about privacy usually in the context of personal publicity, and the privacy complaints about Facebook commonly focus on questions of access to personal information: Who gets to see what we post about our lives and the lives of others. The focus is on the author, not the subject, and usually we don't worry too much things like truth or falsity, or the impact on third parties. For that matter, presumably, we take it as a given that statements are true when not written for a public audience. Things get dicey when the presumptions break down and social media speech can be used against us. So, for example, what if it's not true? Put aside defamation, although freedom of expression and the unfettered nakedness of social media have in no way done away with the law of libel. Just look at this past summer's craziness in England, "UK businessman wins Facebook libel case." Also, the problems with social media's use in employment screening have been long known. You'd have to be living under a rock to think that your real or claimed sexual exploits and opinions on explosives will remain uncovered by potential employers. I write employment contracts for new media and technology companies and lots of other companies. These contracts and company personnel policies typically contain some statement about how computer usage is subject to company oversight and "your telephone, cell phone, blackberry, and email are not yours", or statements to that effect. Pretty standard stuff. But what about corporate usage of Twitter and other social media? In the case that toppled Detroit Mayor Kilpatrick, the police officers who sued for wrongful discharge weren't seeking the Mayor's private thoughts for the sake of embarrassment. They definitely achieved that, but as collateral damage while trying to demonstrate wrongful termination of employment. Privacy is a lot like many other rights in this respect. Its scope can be limited by other competing and legitimate public policy concerns. In the Detroit case, the litigants had pursued their rights under law to obtain information relevant to a vindication of their labor and civil rights. They were seeking to impugn the truth of statements made by the mayor and his chief of staff. Along the way, of course, they ruined the political careers of 2 public officials and sent the Mayor to prison. But it's not that your Facebook wall will be subpoenaed. That's out there anyway for anybody to see and use. In litigation, companies and government agencies are subject to e-discovery orders, which require preservation and production of all relevant electronic communications. This includes email, but also instant messages, text, video, and the detritus from company social media applications – blogs, wikis, and other social media materials. From an employer's perspective, IM and cell texts of employees are particularly vulnerable because of their popularity and usage, as well as the general inability of companies to truly regulate their usage by employees. As a user of their employer's technology, the individual employee is nearly completely exposed to disclosure. These attacks on privacy come up in the context of broader litigation not specifically targeting you as an individual – but rather your employer or agency or group. Worse, it seems just as likely to come up in unrelated government audit and regulatory actions as well. For example, a Department of Labor workplace audit. In the PC World story, Nash cites an interesting 2008 California federal case, also involving police officers, but explicitly claiming privacy violations in suing the city's wireless provider for providing the city with transcripts of the officers' sexually explicit text messages. While Mayor Kilpatrick in Detroit was subject to Michigan's view that no "expectation of privacy" existed in use of city-provided technology, the California court ruled otherwise, particularly where the city was consistently inconsistent in its enforcement of published usage and monitoring policies. The California officers sued under a federal privacy statute preventing electronic communications companies from disclosing private messages, overcoming a defense that the service was merely a storage service rather than a communications medium covered by the privacy law. That was helpful to the California officers based on the facts at hand, but also highlights the limitations of this particular privacy view, which depends on who is seeking protection. Privacy will never be an absolute, and never has been under the law. Privacy in social media is no different, and will be subject to balancing tests with competing public policy subjects such as court discovery demands and different states' concepts of what one has an "expectation of privacy". What's next is the overlay of social media, company and government privacy policies, which are contracts between you and the social media host: The expectation of privacy under the law can be contractually improved or reduced, depending on the applicable state law and the specific contract terms. How does your contract with Twitter or Facebook change what you should expect? More on this to come. Andrew Mirsky is principal of Mirsky and Company, a new media and technology law firm based in Washington, DC with an office in New York City. Andrew advises media and technology clients on all legal aspects of business operations, including corporate and finance, intellectual property, contracts, and human resources. Andrew is also founder of Media Future Now, a (roughly) monthly gathering of DC professionals, focused on finding ways to keep media-centric businesses agile, innovative and future-focused.

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