Monitoring Employees' Social Media Posts

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Latest post Wed, Nov 9 2016 5:24 AM by LegalSecy. 15 replies.
  • Mon, Nov 7 2016 5:54 PM

    Monitoring Employees' Social Media Posts

    Hypothetically...

    Suppose a person who works for the government discovers that his or her employer (i.e., the government) is monitoring its employees' social media posts during NON-work hours.  Ostensibly the reason for this is to ascertain that employees aren't disclosing confidential information via their personal twitter, facebook, YouTube (etc.) accounts, or saying defamatory things about their employer. 

    Given that the employer is the government in this case though, would the employer need a search warrant to do this?

    I do understand that things that are posted to social media are already in public view.  But somehow the idea that your employer-the-government is almost kind of stalking you during your non-work hours in order to aggregate and review everything you say in public is kind of creepy. It seems different in kind from (e.g.) a situation where you go to a public square to speak about some issue and by happenstance you run into your boss there, who happens to hear you speak.

    (??)

     

     

  • Mon, Nov 7 2016 10:39 PM In reply to

    Re: Monitoring Employees' Social Media Posts

    LegalSecy:
    Given that the employer is the government in this case though, would the employer need a search warrant to do this?

    If the posts are available online for anyone to see then the answer is clearly no. There is no requirement for a warrant in that circumstance because you have no expectation of privacy for those posts you put up for the entire world to look at. In that case, your employer is just as free as anyone else to look at what you are posting.

  • Tue, Nov 8 2016 2:30 AM In reply to

    Re: Monitoring Employees' Social Media Posts

    So .... just trying to understand the difference here...

    My understanding is that it would need a warrant to (e.g.) get a list of every book you checked out of the library in the past year.  But there is nothing to prevent anybody (including the government) from stationing a person at the entrance to the library who would follow you around every time you were in the library and make notes about what books you were checking out.

    What's the difference?   Why would one activity require a warrant and the other not?

    I guess what I'm trying to understand is the difference between aggregated data and individual instances of data.  For example, you might be able to discern nothing about me from observing what is in my grocery cart on any particular occasion when I buy groceries.  But if you had precise data about everything I purchased at any grocery store over the course of a year, you could probably build a pretty privacy-invading profile of me from that info.

    You could say the same thing about any given trip in my car vs. every single place my car went over a long period of time, how long it was parked and where and how often, how fast I drove and at what times of day, etc., etc.

    Doesn't it seem somewhat intuitively obvious that there is a difference between incidentally observing and surveilling?

  • Tue, Nov 8 2016 7:54 AM In reply to

    Re: Monitoring Employees' Social Media Posts

    LegalSecy:

    My understanding is that it would need a warrant to (e.g.) get a list of every book you checked out of the library in the past year.  But there is nothing to prevent anybody (including the government) from stationing a person at the entrance to the library who would follow you around every time you were in the library and make notes about what books you were checking out.

    What's the difference?   Why would one activity require a warrant and the other not?

    The difference is that you have no expectation of privacy in what you do in public places, so a police officer may follow you around as you travel in public as much as he desired and no warrant is needed. But you do have an expectation of privacy with respect to the records the library holds on your activity there. Those records are (presumably) not open to the public for just anyone to see.

    LegalSecy:
    I guess what I'm trying to understand is the difference between aggregated data and individual instances of data.  For example, you might be able to discern nothing about me from observing what is in my grocery cart on any particular occasion when I buy groceries.  But if you had precise data about everything I purchased at any grocery store over the course of a year, you could probably build a pretty privacy-invading profile of me from that info.

    You could say the same thing about any given trip in my car vs. every single place my car went over a long period of time, how long it was parked and where and how often, how fast I drove and at what times of day, etc., etc.

    Doesn't it seem somewhat intuitively obvious that there is a difference between incidentally observing and surveilling?

    Yes, there is a difference between an incidental observation of one activity and intentional survellience of activity over a period of time. But the Constitution does not say that the government must get a warrant to do survellience or to collect an aggregate of data. What the government may do without a warrant depends whether what the government intends to do intrudes on your right to privacy. What you do in public anyone can observe and anyone can collect that information. That includes the government since you have no expectation of privacy in what you do in public. No warrant is needed for that. So, as I said earlier, the cop could follow your car as it drives all around town and take note of everywhere you go and could do that for days, weeks, or months on end and no warrant would be needed because you have no expectation of privacy in where you go in public. Of course that would be a massive investment of time for the cop to do and his department surely would not want him/her to do it without good reason. But the point is that the officer may certainly do it without the need for a warrant.

    Nor should there be a requirement for a warrant in that situation or the situation of monitoring what you post on the internet for all to see. You know what you are putting out in public and if you dont want people to see it (including your employer) then you don’t put it in the public arena. You control what you say to the whole wide world. You cannot put it out there for all to see and then later complain that others took note of what you did. You seem to want to have it both ways: to say what you want on social media for the whole world to see but then to then block your employer from being able to look at it. Why shouldn't your employer be able to take note of what everyone else in the world can see? Certainly a private employer may do that. Why should the government employer be any different?

  • Tue, Nov 8 2016 8:21 AM In reply to

    Re: Monitoring Employees' Social Media Posts

    I'm hearing George Orwell saying "I told you so."

    ;-)

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • Tue, Nov 8 2016 8:54 AM In reply to

    Re: Monitoring Employees' Social Media Posts

    LegalSecy:
    Suppose a person who works for the government discovers that his or her employer (i.e., the government) is monitoring its employees' social media posts during NON-work hours.

    Which government?  Federal?  State?  Local?  If not federal, in what state is this happening?  What agency does the employee work for?  Is that same agency doing the monitoring or a different agency?  What exactly does "monitoring" mean?  Did you mean to say that the monitoring is occurring during non-work hours or that the social media posting is occurring during non-work hours (or both)?

     

    LegalSecy:
    Given that the employer is the government in this case though, would the employer need a search warrant to do this?

    No search warrant is needed for that which is exposed to the public.  If the social media posting available to the general public, it's perfectly legal for ANY employer to "monitor" it.

     

    LegalSecy:
    the idea that your employer-the-government is almost kind of stalking you during your non-work hours in order to aggregate and review everything you say in public is kind of creepy.

    That's a perfectly reasonable opinion that others may or may not share, but it has no bearing on the legality of this.

     

    LegalSecy:
    It seems different in kind from (e.g.) a situation where you go to a public square to speak about some issue and by happenstance you run into your boss there, who happens to hear you speak.

    It's obviously different because, here, you wrote that the employer heard the employee speak "by happenstance," whereas, in the case of the social media posting, you wrote that the employer has specifically sought out the employee's social media posts.  If that distinction is removed (i.e., if the employer followed the employee to the public square with the intent of listening to the employee speak, it is pretty much exactly the same thing.

  • Tue, Nov 8 2016 8:57 AM In reply to

    Re: Monitoring Employees' Social Media Posts

    adjuster jack:

    I'm hearing George Orwell saying "I told you so."

    ;-)

    Except that this particular situation is not one of the things he warned about in his books. In his writing, he hypothesized a government snooping into every corner of the individual’s private conduct. Technology advances have certainly made that much more feasible today than it was when he wrote “1984.” Indeed, the recent controversy regarding the government’s collection and retention of telephone call data (not the content of the call, but the date, time, and phone numbers involved) highlight the issues he warned about and should prompt concern about just how far the government goes into collecting private information.

    But where you intentionally put stuff out in the public space, that is not and never has been something the government needs a warrant to get. Nor should it be. If you are dumb enough (as some criminals are) to announce your crime to the whole world, the government is entitled to take note of it, just like everyone else. Putting it out in public but then saying “Gee, I didn't think the government would see it” isn’t a very good defense :-)

  • Tue, Nov 8 2016 8:59 AM In reply to

    Re: Monitoring Employees' Social Media Posts

    LegalSecy:
    My understanding is that it would need a warrant to (e.g.) get a list of every book you checked out of the library in the past year.

    Your understanding is incorrect.  A policeman could legally walk into a library and ask for a list of every book that John Smith has checked out in the past year.  Absent a state or local law that says otherwise, it would be perfectly legal for the library to provide that information.  Alternatively, if the library refused to comply, the cop could obtain and serve a subpoena on the library.

     

    LegalSecy:
    I guess what I'm trying to understand is the difference between aggregated data and individual instances of data.

    Why do you think a legal difference exists at all?

     

    LegalSecy:
    Doesn't it seem somewhat intuitively obvious that there is a difference between incidentally observing and surveilling?

    Factually they're different, but that doesn't mean one is necessarily illegal while the other is not.  It's perfectly legal for the police to surveil a person for weeks, months, or years, and no warrant is required for most surveillance.

  • Tue, Nov 8 2016 9:05 AM In reply to

    Re: Monitoring Employees' Social Media Posts

    Taxagent:
    you do have an expectation of privacy with respect to the records the library holds on your activity there. Those records are (presumably) not open to the public for just anyone to see.

    While I imagine that few, if any, libraries would open this information to "just anyone to see," I'm not entirely sure that means they wouldn't provide the information to the cops or other governmental actors upon request.  I'm also not sure a court would hold that such an expectation of privacy exists such that such provision of information would require that the cops obtain a subpoena.

  • Tue, Nov 8 2016 1:28 PM In reply to

    • Drew
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    Re: Monitoring Employees' Social Media Posts

    I seem to recall some laws that protected your library records...but not sure it's relevant to study 



  • Tue, Nov 8 2016 2:37 PM In reply to

    • Drew
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    Re: Monitoring Employees' Social Media Posts

    The employer is free to read anything you post in any public forum.....and in a true at will situation...fire you because you like green socks ......

    WHere it might get sticky is that of it only follows white female workers and not most  men, or only follows those who post to certain religious sites ...AND chooses to act in any fashion on said information as to your employment .....long ago , if your kid sHowed  up on a police report  your management career might be toast ....and some of acquaintances went to considerable length to torpedo a parents military career ....and I think some of my current friends are most unwise as to the stuff they post on Facebook .

    Best answer is to post little to nothing ??

     

     



  • Tue, Nov 8 2016 4:59 PM In reply to

    Re: Monitoring Employees' Social Media Posts

    The reason I'm asking is because it was (perhaps accidentally) disclosed in remarks that an attendee made at a meeting (in the process of asking a question) that at least one agency has software that is capable of doing this (monitoring individuals' social media posts), and at least some of its employees either are or have been actually monitored by this software (possibly to assess the efficacy of the software).

     

  • Wed, Nov 9 2016 1:02 AM In reply to

    Re: Monitoring Employees' Social Media Posts

    ca19lawyer2:

    While I imagine that few, if any, libraries would open this information to "just anyone to see," I'm not entirely sure that means they wouldn't provide the information to the cops or other governmental actors upon request.  I'm also not sure a court would hold that such an expectation of privacy exists such that such provision of information would require that the cops obtain a subpoena.

    As I recall, the OP is in Wisconsin, and at least as to libraries that are in any way supported by public funds, Wisconsin statute § 43.30 prohibits those libraries from disclosing records without a court order. The American Library Assocation page on Privacy states “Forty-eight states protect the confidentiality of library users’ records by law, and the attorneys general in the remaining two states have issued opinions recognizing the privacy of users’ library records.” I have not done the research to independently verify the ALA’s statement, but if true it would suggest that in most states, like in Wisconsin, library records are indeed considered private and are legally protected such that a court order or subpoena would be required to obtain records about library users.

  • Wed, Nov 9 2016 5:14 AM In reply to

    • Drew
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    Re: Monitoring Employees' Social Media Posts

    I doubt this software is free and if agency resources in paid time and equipment and or funds  are used to operate same.....with some careful posturing ..this might be a public relations disaster for those involved? 

    I thought you  first meant some manager was snooping at home on his or her equipment about employees ....but this agency snoop could be  a good bit more contraversarial ?

    To my understanding , a snoop of ones public postings is not illegal....but is is so limited ...really? 

     

     

     



  • Wed, Nov 9 2016 5:20 AM In reply to

    • Drew
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    Re: Monitoring Employees' Social Media Posts

    • I have no problem if employer seeks to inhibit use of employee time spent chatting , posting , searching or shopping on line or use of any employer resources to do so....but that not what you post . 



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