May 13, 2016

Facebook Sued Over Sending Unsolicited Text Messages

Facebook is facing a federal lawsuit based on their practice of sending text messages to people who have been given recycled cell phone numbers.

search%20cell%20phone%2061969338-001.jpgWashington, D.C. resident Christine Holt is not a Facebook member. Nonetheless, when she got a new cell phone number, she began receiving text messages from the social network. The messages asked Holt what she was up to and kept her up to date on the activities of her "friends." Holt requested that the company stop sending her text messages, but the practice continued.

Because Holt's new cell phone number was previously used by someone else, it seems likely that the text messages are actually aimed at that prior user, who probably granted Facebook with permission to send messages. However, Holt never granted such permission, and she became annoyed when her requests that the company desist seemed to fall on deaf ears.

Holt hired Edelson, PC to represent her in a potential class action lawsuit. The complaint speculates that there may be thousands of potential class members who are receiving the same nuisance text messages. The practice is particularly troublesome because many of these people are not Facebook users. This provides them with extremely limited options when it comes to contacting the company. Ostensibly, the new owner of the cell phone number should be able to text "stop" to the offending number, which should effectively remove them from the autodial list. When this doesn't work, frustrated people are left with little choice but to take legal action.

Under the Telephone Consumer Protection Act, it is illegal for companies to embark on a text-messaging campaign without first obtaining written permission from the recipient. Violation of this law can result in a $500 fine per incident. With the social network sending multiple messages to potentially thousands of cell phone users, the damages to the company could be significant.

This situation makes it clear that it is always best to proceed with caution when it comes to contacting potential customers via text messaging. Relying on obtaining written permission is always the best way to go to avoid potential legal action.

Continue reading "Facebook Sued Over Sending Unsolicited Text Messages " »

March 10, 2016

Facebook Fights Lawsuit in Order to Use Faceprint Technology

Millions of people are Facebook users, and most of them post photos to the social media network. If you're one of them, then you're probably familiar with the technology that enables Facebook to ask you if you want to tag "William" and "Mary" when you post a photo of yourself with your friends.

Social%20Media%20Magnified%2044298834-001.jpgFacebook is able to provide this service thanks to its "Faceprint" software, which the company rolled out in 2010. Faceprint is a biometric database that measures unique characteristics in human faces to identify them. When a new picture gets posted, the software immediately performs a scan to look for matching profiles in its biometric database, which allows it to suggest tagging other individuals.

Many Facebook users are troubled by what they believe is the invasiveness of the technology. This is particularly true in Illinois where members of the social network have filed a lawsuit saying that the use of the software violates state law. Illinois' Biometric Information Privacy Act stipulates that companies must obtain written consent for gathering this kind of information. Moreover, companies are required to create and publish a schedule for destroying any data gathered.

Facebook counters the lawsuit by arguing that only the laws of California can be used to lodge legal disputes with the company. The social networking giant goes on to say that all Facebook users accept an agreement in which they consent to disputes being governed by California's laws. Hence, the claimants in Illinois do not have a valid case.

This particular suit involves Facebook users Carlo Licata, Nimesh Patel and Adam Penzen, but it's not the first or the only one of its kind. An earlier lawsuit filed by Frederick Gullen, who is not himself a Facebook user, was rejected by an Illinois judge because the company's connections with the state are too tenuous. However, a similar case against Shutterfly in Illinois has been allowed to move forward because the Internet-based photo company actively offers its services to Illinois residents.

Time and the Courts will decide if this latest Illinois lawsuit against Facebook will be allowed to move forward.

Continue reading "Facebook Fights Lawsuit in Order to Use Faceprint Technology " »

January 15, 2016

San Francisco Yellow Cab Co-Op to File Bankruptcy Amid Uber/Lyft Competition and Lawsuits

An ongoing series of setbacks appears to be forcing San Francisco-based Yellow Cab Co-Op to file for bankruptcy. Company executives sent a letter to each of the cab drivers who work for the co-op in December of 2015 that lays out a plan for the future. Drivers can expect to maintain their employment, but things may have to change dramatically for the co-op to be financially viable again.

Taxi%2028530953-001.jpgOne of the setbacks that is having a detrimental effect on Yellow Cab's bottom line is the upsurge of passengers using tech-based competitors like Uber and Lyft. Both of these apps are widely used on smart phones, enabling users to catch rides quicker and often at a lower rate than those charged by cab companies.

However, representatives from Yellow Cab argue that Uber and Lyft drivers are not subject to the same rigorous background checks that they must undergo. Also, cabbies opine that many of the drivers who work with Uber and Lyft just don't know the city streets as well as they do. Cabbies further cite their superior insurance protection as an additional reason why customers should choose their service over the services of their rivals.

The other setback that is affecting Yellow Cab's profitability is the amount of money they've had to shell out as a result of personal injury litigation. Company officials note that they have been ordered by courts to pay numerous sizable settlements in the last couple of years. One of these cases in particular, Fua v. Sanchez, resulted in an eight million dollar award to plaintiff Ida Fua. The left side of Fua's body was paralyzed when the Yellow Cab she was riding in crashed into other cars at 60 mph. This award, combined with other sizable judgments, severely impaired Yellow Cab's financial stability.

Yellow Cab is likely to file for Chapter 11 bankruptcy soon. This reorganization bankruptcy will discharge many of the company's debts, and neither drivers nor passengers should be affected. However, company officials say that they will need to hire more drivers if they want to become more profitable in the future.

Continue reading "San Francisco Yellow Cab Co-Op to File Bankruptcy Amid Uber/Lyft Competition and Lawsuits" »

October 16, 2015

LinkedIn Agrees to $13 Million Settlement

Anyone who has ever joined LinkedIn knows that the social media giant sends out numerous emails. It's fairly annoying, and the company doesn't make it easy to opt out of their communications. That practice has gotten LinkedIn in some serious trouble. The company will be paying out at least $13 million next year in a settlement agreement that they recently signed.

Social%20Media%20Magnified%2044298834-001.jpgThe settlement agreement ends a class action lawsuit against LinkedIn. Known as Perkins v. LinkedIn, the case related to the website's "Add Connections" function. Plaintiffs allege that the company did not provide adequate notice regarding the emails it would send to contacts in the member's email address book. If LinkedIn users signed up for the Add Connections function, they were able to import contacts from any external email accounts. LinkedIn would then send an invitation email to many of these contacts. Contacts who ignored the email for a certain amount of time might receive up to two additional, reminder emails.

The court decided that while LinkedIn members who signed up for Add Connections did consent to have invitation emails sent to their contacts, they did not provide consent for the company to send any follow-up emails. Moreover, users were not asked for and did not give consent for their names and likenesses to be used in any follow-ups to the invitation email.

As part of the class action settlement, LinkedIn was not required to admit any wrongdoing. Similarly, the company denies each of the allegations made in the complaint.

LinkedIn users who are thought to be members of the class may have already received an email from the company letting them know about the settlement. Each email included a unique, 15-digit number to identify the claim. Others who feel they may be entitled to a portion of the settlement may apply to become a class member until December 14, 2015. Analysts suggest that class members may only receive about $10 each, but the lawsuit was aimed at punitive measures against LinkedIn. This outcome serves as a reminder to all companies that full disclosure of all email practices is imperative.

September 3, 2015

Enjoy Labor Day!

Labor Day is upon us. Summer is unofficially over. Many kids have started school and the rest will start in a few days.

About Labor Day

Happy%20Labor%20Day%20%2064937021-001.jpgLabor Day is always celebrated on the first Monday of September. Americans have been celebrating Labor Day since the 1880s, and today it is an official federal holiday.
It is the day Americans celebrate their achievements in work, which the US Department of Labor says has contributed to prosperity and well-being of America as a whole.

Some Interesting Labor Day Facts

 This year, more than 35 million Americans will travel over Labor Day weekend.

 It is estimated that over 350,000 of them will choose Las Vegas as a destination.

 President Cleveland made Labor Day and official US holiday in 1894.

 Labor Day gas prices are the lowest in 5 years.

 Labor Day marks the end of hot dog season (it starts on Memorial Day), when Americans consume seven billion hot dogs; 818 per second!

Take this weekend to celebrate the fruits of your labors… wear white, enjoy a bar-b-que, eat some hot dogs and whatever you do, stay safe and have fun.

We are glad to have you as part of the Sylvester, Oppenheim & Linde team!

May 21, 2015

New York Court Approves the Use of Class Action Notification Via Social Media

More than one judge has approved the use of social media for service of process. Now a judge has approved a bid to use websites like Facebook for informing potential participants of a class action lawsuit.

Social%20Media%20Compass%2054107999-001.jpgThe New York Federal Court has decided to allow plaintiffs in the case Mark v. Gawker Media LLC to notify other potential plaintiffs of the lawsuit via social media. Gawker, which is an online media company, is being sued by a class of individuals who were once hired as unpaid interns. The interns assert that Gawker violated the Fair Labor Standards Act along with portions of New York labor law.

Plaintiffs already involved in the case felt that there were many other potential class members, yet they were uncertain how to reach them through traditional means, such as U.S. mail. They knew that many former Gawker interns were devoted to social media, and this gave them the idea that these services could be used to spread the word about the lawsuit.

Their initial proposal to the court was rejected as being far too broad and more likely to simply advertise the lawsuit than to actually target likely potential class members. Plaintiffs originally wanted to use a "GawkerInterns" Twitter account with assorted hashtags along with a LinkedIn profile. Their plan also involved Tumblr, Reddit and Facebook.

The court suggested a more personalized and targeted approach, citing that the plaintiffs' original suggestion seemed more like an attempt to punish Gawker than to provide notice to potential class members. Plaintiffs may still use Twitter, Facebook and LinkedIn, but their approach must be more specific and less public. Moreover, the notices that will be provided to other former interns will include much of the approved language that is traditionally utilized in such notices.

The New York federal court seems to be taking a prudent approach to the use of social media in legal matters. They understand that there is a fine line between appropriately advising potential class members and merely contributing to a negative online media campaign. This case may set an important precedent for future class actions.

May 1, 2015

NLRB Decision May Cause Companies to Amend Email Policies

The National Labor Relations Board made a landmark decision recently, when it ruled that employees have the right to use their employer's email system to send communications regarding union organizing.

Email%20%2081091615-001.jpgThe decision came in response to a matter involving Purple Communications of Rocklin, California. Company policy forbade employees from using the email system for "activities on behalf of organizations or persons with no professional or business affiliation" with Purple Communications.

A union was attempting to organize certain employees within Purple Communications. They filed a protest over election results at a couple of the company's worksites because the restrictive email policy prevented employees from freely conversing about the election. Union organizers also filed a complaint of unfair labor practices because employees were being restricted from engaging in a legally protected activity. An administrative law judge initially found in favor of Purple Communications, but the union organizers decided to appeal that decision.

The board reversed its decision, finding that employees who have already been granted access to a workplace email system do have the right to use that system for protected communications relating to matters about working conditions and union organizing as long as such communications were made during non-working hours. Nonetheless, companies may still have the right to restrict such emails if they can show that such a ban is necessary for disciplinary reasons or to maintain production activities.

Holding that communication is a basic building block of legal organization efforts, the board effectively reversed earlier decisions. Members of the board agreed that email is ubiquitous in the modern workplace and that it is essentially a "gathering place" for employees to discuss their rights and working conditions.

The board notes that employers still maintain the right to monitor emails to meet management objectives. Moreover, the ruling does not apply to employees who do not ordinarily have access to the company's email system or to third parties, like union organizers, who request such access. This new decision may make it necessary for employers to make amendments to existing email policies so as not to run afoul of this new precedent.

Continue reading "NLRB Decision May Cause Companies to Amend Email Policies " »

April 17, 2015

New York Court Allows "Service of Process" by Facebook

The Internet is becoming increasingly ubiquitous. Take the divorce matter that was recently ruled on by a judge in New York. The ruling is one of the first times that service of process by Facebook has been allowed.

Social%20Media%20Magnified%2044298834-001.jpgNormally, service of process is performed in person. A process server or law enforcement officer delivers the legal papers to the party to the lawsuit at their home or place of business. It may also be possible to mail the papers to that party's last known address. These are effective means of notifying parties that a lawsuit has been filed or of the commencement of some other type of legal action.

However, the courts are occasionally stymied when it comes to tracking down people for process service. That's what happened in the unusual divorce of Ellanora Baidoo and her estranged husband Victor Blood-Dzraku. The two married in 2009, but never cohabitated. Baidoo began divorce proceedings in New York. However, she was finding it difficult to track down her spouse. He is unemployed and his last known address was vacated in 2011. The U.S. Post Office had no forwarding address information for Blood-Dzraku.

It seemed like Baidoo would have to resort to notice by publication to inform her husband about the divorce. Publishing divorce notices in newspapers is a practice that's been used for centuries. Supreme Court Justice Matthew Cooper notes that this type of service can be time consuming and expensive. When Baidoo showed that she regularly communicates with Blood-Dzraku via Facebook, Cooper decided that service by Facebook would suffice in this instance.

Baidoo's attorney must now send Blood-Dzraku proper notice via a private message on Facebook. For three consecutive weeks he is required to send the same notice, unless the erstwhile husband confirms receipt.

Cooper's decision is rather groundbreaking. He calls social media process service the "next frontier in the developing law of the service of process." While some attorneys agree with the court's assessment of the situation, others remain dubious. Cooper's solution seems a logical one in circumstances where a party is dodging service or is otherwise difficult to locate.

August 14, 2014

Pennsylvania Teacher's Free Speech Lawsuit Won't Go to Trial

As various social media formats and blogs continue to evolve, the definition of free speech may also evolve. That seems to be the case with a former Bucks County, Pennsylvania English teacher who sued her former employer.

Grades%20on%20a%20chalkboard%2033883975-001.jpgThe situation began in 2011, when teacher Natalie Munroe began blowing off steam through her personal blog. She routinely made attacks on her students, whom she did not name, in the blog. Using descriptors like "utterly loathsome," "frightfully dim" and "jerk."

Before long, links to her blog were being floated around parents and students in Central Bucks School District. Despite receiving positive teacher evaluations in 2008, Munroe found herself being put on a disciplinary work plan because of the furor her blog posts caused. Subsequent evaluations were poor, and Munroe was terminated.

Munroe and her attorney claim that the work plan and the poor evaluations were retaliation for the blog posts. Further, they claimed that the posts should have been protected as free speech under the First Amendment.

A recent decision handed down by U.S. District Judge Cynthia Rufe disagrees with the plaintiff's assertions. Judge Rufe used a time-tested standard for determining whether or not the blog posts were protected speech. She noted that Munroe was a public employee who may be held to a different standard when disparaging their employer. Ultimately, Judge Rufe said that the blog posts caused a significant disruption at the school and within the district. This disruption made it difficult for the district to carry on its essential function to educate students. Accordingly, Munroe's blog posts were not protected speech.

Because of the judge's ruling, this case will not be proceeding to trial. Legal scholars warn that anyone who is employed by a public entity should be exceedingly careful about their social media presence. In most instances, it's best not to blog or otherwise post comments about a public employer, coworkers or recipients of the services provided by government entities. Doing so may put the blogger's job in jeopardy, and there is a very good chance that a court will agree that the employer was within their rights.

Continue reading "Pennsylvania Teacher's Free Speech Lawsuit Won't Go to Trial " »

August 1, 2014

Passengers Removed from Southwest Flight Over Tweet

A Southwest Airlines traveler is expressing his displeasure after he was temporarily removed from a flight for tweeting about a gate agent. Duff Watson was traveling between Denver and Minneapolis with his children, aged 6 and 9. Watson was a Southwest Airlines A list traveler, a status that granted him priority seating.

Social%20Media%20Magnified%2044298834-001.jpgWatson prepared to board the plane with his children, only to be told by a gate agent that while his A list status entitled him to early boarding privileges, his children were exempt. As a regular Southwest customer, Watson says the decision mystified him. He had been able to have priority boarding with his children on the airline on several past occasions. When the agent denied him the ability to board in the A group with his children, Watson told her that he was going to tweet about the incident.

"RUDEST AGENT IN DENVER. KIMBERLY S. GATE C39. NOT HAPPY @SWA," was Watson's all caps posting. He boarded the plane with his children, only to hear his name being called over the loudspeaker. They were being asked to leave the plane.

The gate agent said she felt threatened by the use of her name and location in the tweet. She requested that Watson delete the tweet before he and his children would be allowed to board the plane. Watson eventually complied after a supervisor was called in to handle the situation. However, the damage was already done.

The story has been reported in many media outlets with the deleted tweet being read more times than it might have been otherwise. Watson vows never to fly Southwest again. In a statement, the airline notes that a "customer was briefly removed from flight #2347 … to resolve the conversation outside of the aircraft and away from the other Passengers." The statement goes on to say that Watson was not removed from the plane only because of the tweet.

Southwest will not be releasing details about what, if any, disciplinary actions were taken against the gate agent. Vouchers were provided to all three travelers, but it seems unlikely that they will be used.

While no lawsuit has been threatened or filed, time will tell if this incident will lead to another in the evergrowing number of social media lawsuits.

July 18, 2014

FTC Sues Amazon Over Unfair Billing Practices

The FTC has sued Amazon over its in-app billing practices. In the lawsuit, the FTC alleges that parents have been unlawfully charged millions of dollars by allowing their children to play with apps on smart phones and other devices.

Smartphone%20%26%20baby%2052239469-001.jpgThe apps are frequently free to download. Although free play is possible, the availability of in-app purchases that provide access to higher game levels or other enhanced experiences are common. The trouble is, children can easily authorize these purchases with the touch of a button. No passwords or authorization are required. Without mom and dad's knowledge, it's easy for a kid to rack up hundreds of dollars of charges worth of in-app purchases.

When the credit card bill arrives, the parents often complain to Amazon. Although Amazon states that they have offered refunds to customers who complained about the practice, the FTC feels they haven't gone far enough. In their complaint, the FTC levels accusations at Amazon of unfair billing practices that violate Section 5 of the FTC Act. T-Mobile and Apple have both been the subject of similar FTC lawsuits.

Andrew Devore, an attorney for Amazon, stated in a letter that the organization's in-app purchase policies are "responsible, customer focused and lawful." Moreover, he notes that Amazon utilizes "prominent notice of in-app purchasing ... (and) effective parental controls ..."

In a move that seems as if it was designed to help head off the litigation, Amazon made password entry a requirement for making in-app purchases that exceed $20 in March of 2012. However, the FTC seems to feel that this was a case of too little, too late. The two parties tried to reach an agreement before the lawsuit was filed. Amazon resisted the deal that the FTC proposed, particularly because they feel that their billing policies are at least as stringent as those recently enacted at Apple in response to another FTC lawsuit.

Both parties in the pending litigation seem motivated to maintain their stance. Time will tell what the resolution will be, and what effect it might have on the future of in-app purchases at Amazon and from other providers.

July 11, 2014

ABA Ruling Says Attorneys May Review Social Media Posts by Jurors

As more and more people establish a presence on social media websites, the line between the real world and the virtual world becomes increasingly blurred. That's true in many aspects of life, and it is particularly relevant when applied to jurors. In a recent ruling handed down by the American Bar Association (ABA), lawyers may rightfully review the social media postings of jurors and potential jurors. However, strict lines for appropriate conduct and ex parte communication have also been drawn.

Social%20Media%20Magnified%2044298834-001.jpgThe ruling by the ABA essentially says that it is appropriate for lawyers to peruse the social media postings of jurors at websites like Facebook and Twitter. However, it remains unethical for lawyers to make friend requests to these jurors or to "follow" their social media posts. It is believed that doing so would breach rules against ex parte communication. Accordingly, lawyers may lawfully review those posts that a juror chooses to make public. Such items as may be accessible only by the people designated as "friends" by the juror may not be reviewed by the lawyer.

Lawyers may be interested in reviewing such publicly available information in order to ascertain whether or not jury instructions are being adhered to. These postings may also be of interest during the jury selection process when an attorney may be looking for bias or prejudice.

The ABA feels that judges and lawyers in the courtroom should discuss social media expectations. Thus, a judge may instruct that it is inappropriate for jurors to make any social media postings during the course of a trial. Lawyers may monitor whether or not this activity is occurring. Jurors should also be instructed that their social media presence may be of interest to the parties involved in a lawsuit, and that their postings may be reviewed by attorneys involved in the case. The ABA feels that there will be fewer misunderstandings if clear rules regarding social media behavior are established early in the proceedings.

Continue reading "ABA Ruling Says Attorneys May Review Social Media Posts by Jurors " »

April 17, 2014

Facebook Lawsuit Settled Between Sixth Grade Student and School District

Last month, a case was settled between a 6th grader and the Minnewaska School District in Minnesota over a Facebook post from 2012. The American Civil Liberties Union of Minnesota defended Riley Stratton, who was punished for a post that she made on her Facebook page.

Social%20Media%20Compass%2054107999-001.jpgHer school forced her to hand over passwords for her Facebook and email accounts. The ACLU won their case after two years, and now the school district must strengthen privacy protections and pay damages.

Riley stated that she was happy that the case was finally settled, and that her school has to change its rules so that other students don't have to go through what she went through. "It was so embarrassing and hard on me to go through, but I hope that schools all over see what happened and don't punish other students the way I was punished," she said after the settlement.

Stratton was repeatedly punished for a comment that she made on her Facebook page while at home about a faculty member at her school. Her Facebook was then searched by school officials with police present because a conversation about sex with a boy was also investigated on her Facebook. After the ordeal, Riley no longer wanted to attend school.

The school district must now change its policies and pay $70,000 to Riley and the ACLU-MN to cover court costs and support other ACLU-MN efforts in the future. The case is certainly a lesson for school districts in every part of the country as many have changed their policies regarding social media and students.

From the ACLU press release: "We are pleased with the settlement and hope this sends a clear message to other schools that is bad policy to police students' behavior on social media," said Charles Samuelson, who is the Executive Director of the ACLU-MN. "There may be times when it is appropriate for schools to intervene, but only in extreme circumstances when there are true threats or safety risks."

The school district's new policy will work to protect students' privacy while also training staff members to ensure that correct procedure is followed.

February 11, 2014

Is a Platform for Sexual Predators?

In some cases, social networking websites represent wonderful opportunities for users to connect with old friends and family or to make new acquaintances. However, that isn't always the case with This Pennsylvania based service features an app that allows users to locate other users within convenient physical proximity. Essentially, the app uses GPS signals from the users' cell phones to alert them when other users are near.

Online%20Risks%2057598610-001.jpgThe trouble is that appears to have put few safeguards in place. People as young as 13 may sign up for the service, and it's very easy for older users to represent themselves as much younger people. The result has been a number of sexual assaults occurring between users who are over the age of 18, and other users who are as young as 12.

San Francisco City Attorney Dennis Herrera recently filed a lawsuit against the networking website. He believes that's lack of safety regulations provides sexual predators with a convenient means of finding victims. In Herrera's complaint, he notes that anyone can sign up for an account at the website, and that it's remarkably easy to enter any desired birth date. The site has about 40 million registered users. Estimates suggest that teens between 13 and 17 make up about a quarter of that number.

Teens may sign up for the website without obtaining the approval of their parents or legal guardians. This had led to several frightening incidents in California and in other places across the country. Incidents include a 29 year-old man who used to send explicit messages to teen girls, a 23 year-old man who sexually assaulted a minor he met via the website and a 21 year-old man who represented himself as a 16 year-old in order to have sex with two minors, one just 12 years-old.

MeetMe's representatives have not made substantive comments on the suit, but say they have a dedicated security team that routinely scouts the website for sexual predators. It seems likely that MeetMe will be forced to review some of its policies in light of this litigation.

October 30, 2013

Ongoing Cyber Bullying Investigation in Nevada High School

An occurrence of cyber bullying at a Nevada high school is receiving widespread media attention. Early in October, a photograph began surfacing on social media. Reportedly, it was taken in one of the upstairs hallways of Durango High School, which is part of the Clark County School District.

Cyberbullying%2048885149-001.jpgWhat makes the photograph particularly notorious is its subject matter, a female student who has removed her clothing and is standing with the removed items covering her face. Rumors ran rampant in the days following the first postings of the photograph online. Some said the girl was a special education student. Others claimed that she had been coerced into removing her clothing while different witnesses said she had done so willingly.

Little is known about the girl because of Nevada privacy laws. This means that the girl's name and whether or not she is in fact a special education student remain unknown. It seems a welcome piece of anonymity in a case that's puzzling to other high school students who don't understand how the whole situation came about.

What is clear in this situation is the school district's rules against cyber bullying. Clark County School District, and Durango High in particular, have a reputation for taking a harsh view on instances of cyber bullying.

Thus far, the school and district have been relatively silent on the situation. They released a statement shortly after news of the photograph broke, saying that the "matter has our full attention." Afterward, it was reported that a student, Gary Hoffman, was expelled after the incident. Hoffman appears in the photograph, but is not seen taking pictures.

Nonetheless, Hoffman's family soon received a letter saying he had been expelled. The family appealed, noting that the student is merely in the photograph rather than being involved in inducing the girl to remove her clothing or sharing the photo on social media.

The Hoffman family prevailed in the appeal, but Gary won't be taking the district's offer to allow him to re-enroll in Durango. He'll attend a different school while Durango officials seek to punish the perpetrators in the incident.

October 3, 2013

Two Facebook Firings, Two Different Outcomes: Part Two

Last week we reviewed a Butler Medical Transport firing based on a Facebook post which was ruled illegal by an Administrative Law Judge. This week we read about a different outcome for a different Butler employee allegedly fired due to his Facebook post.

Facebook%20up%20and%20down%2047059270-001.jpgIn this case, Michael Rice created a Facebook post stating that he was "broke down" for the second time in two weeks because the company was unwilling to replace malfunctioning equipment. Butler terminated Rice over the post, and was able to produce maintenance records to the Administrative Law Judge that proved that Rice's vehicle had been in working order at the time of the post. In addition, Rice had testified at an earlier unemployment insurance hearing that his post had referred to a private vehicle rather than a Butler vehicle. These facts induced the judge to find that Rice's termination was not illegal. As the post was maliciously untrue and since Rice knew it to be untrue at the time of the posting, the board found in favor of Butler.

The use of social networking sites by employees continues to be a matter of concern for employers. Increasingly, social sites have the power to make or break a company's reputation, making it vital to draft thoughtful (and legal) policies regarding what employees may and may not post regarding their work situation.

The problems Butler Medical Transport encountered with employee Facebook posts might have been avoided had they crafted policies that accurately stipulated what was and was not acceptable online behavior. Butler utilized an informal bulleted list of "work rules" that barred employees "from using social networking sights [sic] which could discredit Butler … or damage its image." An Administrative Law Judge at the National Labor Relations Board felt that the list constituted official company policy although Butler argued otherwise. The judge pointed out that Butler had relied on the bulleted list to terminate two employees in relation to their Facebook posts. Accordingly, this list has the effect of being official company policy.

Butler's failure to successfully argue that their informal list was not company policy is a cautionary tale to other employers. When a workplace rule is written down, communicated to employees and may result in disciplinary action if it is broken, then it is official policy and a judge may treat it as such. Clearly, any company rules, policies or guidelines dealing with social media need to be drafted with care and reviewed by legal counsel before being put into effect. Doing so can save a lot of headaches and clears the way for the employer to focus on generating profits rather than policing employee Facebook posts.

Continue reading "Two Facebook Firings, Two Different Outcomes: Part Two" »

September 25, 2013

Two Facebook Firings, Two Different Outcomes: Part One

The question of whether or not an employee's Facebook posts are protected speech recently came into play with two termination proceedings brought before the National Labor Relations Board. Although both employees made Facebook posts and were subsequently fired as a result of those posts, the presiding Administrative Law Judge reached two very different conclusions.

Facebook%20up%20and%20down%2047059270-001.jpgIn the first instance, emergency medical technician William Norvell was working for Butler Medical Transport. While off duty and using a personal computer in his home, Norvell logged in to his Facebook account only to read a post from a fellow employee that stated she had been terminated. The terminated employee went on to write that she felt the firing stemmed from an incident during which she had complained to a patient about the state of repair of the ambulance in which they were riding. Other Butler employees weighed in on the subject, with Norvell commenting that the former employee might consider "getting a lawyer and taking them to court." Later, Norvell also suggested that the ousted employee could contact the labor board.

Management at Butler obtained hard copies of these Facebook posts, using them ultimately to terminate Norvell. At the time of his firing, Norvell was told his posts were in violation of the company's work rules. This bullet point list included an entry that forbade employees from harming Butler's image in a public manner, such as through social media posts.

The Administrative Law Judge found that the firing was illegal and that Norvell's postings fell under the category of protected concerted activity. Because the posts were not reckless or maliciously false, Butler could not legally terminate Norvell for writing them. Instead, he had been discussing a matter that concerned all Butler employees, an activity protected under the NLRA.

In our next post, read about another Butler employee who received a very different outcome from the judge after his “Facebook firing”.

September 12, 2013

Glendale Unified School District to Monitor Students' Social Networking Activity

Southern California's Glendale Unified School District is taking controversial steps to combat cyber bullying. Specifically, the district has hired a company called Geo Listening to monitor its students' social media postings.

Internet%20Monitoring%2055342227-001.jpgThis monitoring may occur on school computers and on those in the student's home. Although some parents and students feel that this monitoring is invasive and has overtones of a big brother mentality, others are hailing it as a positive step toward fighting cyber bullying and identifying at risk students who don't know where to turn to seek help for emotional and psychological issues.

The program began in 2012 in the aftermath of a school district tragedy. A student had committed suicide by jumping from the roof of one of Glendale's high schools. Administrators saw a need to track early warning signs that students were headed for trouble. This, coupled with the global emphasis on stopping cyber bullying, led the district to contract with Geo Listening to monitor the social network postings of the students in a handful of its schools.

That pilot program is now being extended to all middle and high schools in the district. Although Dr. Richard Sheehan, Glendale District Superintendent, notes that the program is directly related to "student safety," critics remain unsure. Sheehan asserts that Geo Listening will be looking for postings that indicate that "a student is considering harming themselves [or] harming someone else."

On the surface, this appears to be a well intentioned program. The policy grants Geo Listening the opportunity to review postings made by Glendale students to popular social media websites like Facebook, Instagram and Twitter. However, it's important to make the distinction that Geo Listening will only have access to public accounts that are essentially viewable by any users. Students can opt out of participating in the monitoring by privatizing the settings of their social media accounts, which, considering the prevalence of online risks, is probably a good idea anyway. While this monitoring may prove to be an important tool, it should be just one approach among many to combat cyber bullying and provide assistance to at risk youth.

July 11, 2013

Teen Sues School District Over Unauthorized Use of Photograph

Teen safety on the Internet is an issue that most parents and teachers must contend with on a daily basis. Drawing the line between what is appropriate online behavior and what is not is admittedly tricky. However, as officials in one Georgia school district are discovering, using a student’s Facebook photo to make a point can have serious repercussions.

OOPS%20%2050794898-001.jpgChelsea Chaney was a high school senior in northern Georgia when the district decided to conduct a seminar about Internet safety for students. During the presentation, students, parents and teachers were shown a cartoon that showed a child aghast at his mother’s past Facebook posts which included references to things like Jello shots and bad boys. The next image featured Chelsea Chaney, wearing a bikini and posing with a cardboard cutout of Snoop Dogg.

Chaney and her parents were horrified by the use of the private photograph which they did not know was being used for the seminar. When the school district refused to conduct an assembly to address the issue, Chaney filed a lawsuit. In the complaint, she alleges that Curtis Cearley, a county technology services director, obtained access to her Facebook profile and utilized the photograph without permission. Moreover, Chaney continues to receive harassment as a result of the use of the photograph. Media coverage has made it impossible to suppress the image, and Chaney asserts that even more than a year later she continues to receive texts and other communications telling her that she deserves this treatment.

Chaney’s attorney charges in the complaint that the seminar painted the student as a “promiscuous abuser of alcohol,” which severely damaged her reputation and caused her undue embarrassment.

Meanwhile, defendants in the case assert that they believed the photograph to essentially be in the public domain and that they did not intend to defame Chaney. This case serves to point out that images, particularly those on the Internet, can be especially powerful. Posting photographs should be done with care, but copying them for other usage requires even greater care in order to avoid serious legal consequences.

June 28, 2013

Dual Use Devices Can Provide Unauthorized Access to Personal Information

Companies are relying on technology more than ever to turn a profit. Often, that means issuing electronic devices to employees. The primary function of these items is work related, but employers recognize the value in allowing employees to sync this technology to personal email accounts.

Smart%20Phone%20with%20Apps%2048915227-002.jpgThis permission allows the employee to be able to check both personal and business emails from the same device, but what happens when the employee is no longer working for the company? Typically, the device is returned to the business, ideally with the employee’s personal information effectively wiped from the memory.

The dangers associated with not completely deleting personal information were highlighted in a recent civil lawsuit. Verizon employee Sandi Lazette received a Blackberry for work related use. She received permission to sync her personal gmail account with the device. Upon deciding to leave Verizon, Lazette attempted to delete her personal email account from the Blackberry. Believing she had succeeded in deleting the account, Lazette returned it to Verizon.

However, Lazette’s attempt to delete her email account had not worked, a fact which was quickly discovered by her former supervisor. In the complaint, Lazette alleged that her former supervisor accessed and read 48,000 of her personal emails over the next year and a half. The emails contained sensitive personal information about Lazette’s health, finances and private family matters.

When Lazette discovered the breach, she sued both Verizon and her supervisor. She claimed invasion of privacy and repeated violations of the Stored Communications Act. The court ultimately found in favor of the plaintiff, denying Verizon’s claims that Lazette’s failure to delete the email account from the Blackberry essentially provided her supervisor with tacit permission to review her emails. Most importantly, the court found that Lazette had never intentially given Verizon or her supervisor access to her emails.

This litigation, and similar cases, highlight how important it is for employees to protect their personal information and for employers to have policies that stipulate a thorough review of all electronic devices and deletion of personal accounts before redistributing devices to other employees.

May 17, 2013

Retaliation Lawsuit Filed After Social Media Postings

Sometimes, social media, employers and workers just shouldn’t mix. At least, that’s the logical conclusion in the case of a lawsuit filed by former employees of Coyote Ugly Saloon.

The trouble began when several current and former employees of the corporation filed a lawsuit against Coyote Ugly. The complaint alleged that employees had not received compensation for hours they were forced to work off the clock. Moreover, the suit pursued damages for illegal tip practices. Plaintiffs alleged that bar security workers were allowed to share in the tip pool although the practice should have been prohibited.

Most corporations accept the occasional lawsuit as part of the cost of doing business. Under the advice of attorneys, most employers refrain from commenting publicly with regard to ongoing legal matters. However, this practice seems to be changing as social media applications become increasingly prevalent. The problems associated with this phenomenon are highlighted by this case.

Coyote Ugly CEO Liliana Lovell, who writes a regular blog on the company website, made comments on her blog that were related to the recently filed lawsuit. In the post, Lovell noted that the plaintiff, Misty Blu Stewart, had been terminated for theft. The post also went on to refer to Stewart in a derogatory fashion, although Stewart’s name never actually appeared in the post.

Concurrently, another plaintiff in the case, Sarah Stone, discovered a Facebook post by a company manager that referred to a desire to kill a bartender who was suing him. The post was made while the manager was being served by Sarah Stone, whom he knew was involved in the suit.

As a result of both online postings, Stewart and Stone filed a further lawsuit, this time claiming retaliation on the part of their former employer. The court recently dismissed a motion by the defendants that would have put an end to the suit, meaning that a judge is likely to hear the case in the coming months. In the meantime, it seems prudent for employers to refrain from commenting in social media on legal matters in even the vaguest terms.

May 9, 2013

High School Teacher Files an Appeal in Case of Social Media Related Resignation

A legal quagmire in Georgia over a teacher, her Facebook profile and student access to that profile is deepening. The tale starts at the beginning of the 2009 school year when Ashley Payne, a high school English teacher, befriended a student on Facebook. It’s unclear which party sent the friend request, but the resultant connection opened Payne’s profile to the student. In it, Payne made use of the term “bitch” in a playful manner and also posted a picture of herself with a glass of wine in one hand and a beer in the other.

Resignation%20Cloud%2048748828-001.jpgUpon discovering this content, the student’s parent anonymously forwarded an email to Superintendent Dr. Ron Saunders who forwarded the message to Apalachee High principal David McGee. McGee, along with the vice principal, held a meeting with Payne in which the teacher admitted her use of Facebook and the use of a photograph depicting alcohol usage. However, Payne alleged that she was unsure whether or not any of her students were among her Facebook friends. Principal McGee then showed Payne the email complaint and notified her that the concerns of the parent were being passed along to the school board. Allegedly, McGee expressed doubts about the board finding in Payne’s favor.

Payne says she felt that she was being given two options: resign or be suspended. She sent in a resignation letter, then reconsidered the decision. With the help of an attorney, Payne addressed a letter to the school board in which she advocated for getting her job back. When that failed to elicit a response, her attorney filed a writ of mandamus alleging that the Georgia Fair Dismissal Act entitled Payne to a hearing and appropriate compensation.

In response, the school district filed a motion for summary judgment. The court ruled in favor of the school district, stating that Payne’s resignation meant she was disqualified for protection under the act. Still, Payne isn’t ready to give up the fight. A recently filed appeal means that her case will get a second look under the jurisdiction of a higher court.

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May 3, 2013

Recent NLRB Decisions Highlight Conflicts Between Social Media and Employer Rights

Clashes between employer rights and the social media activities of employees seem to be on the rise. Decisions recently handed down by the National Labor Relations Board, or NLRB, sanctioned employers who disciplined employees for their social media activities. The NLRB contends that employers in each instance violated provisions of the National Labor Relations Act.

Social%20Media%2037877338-001.jpgIn one case, employees of a domestic abuse shelter were fired in the wake of a series of Facebook posts. The posts were made in response to the news that another coworker intended to take complaints about the substandard performance of employees to a supervisor. The NLRB found that the posts constituted a concerted activity that is protected under the NLRA. Essentially, board members felt that the employees were engaging in an act of mutual aid with regard to the conditions of their employment. The Facebook posts were an attempt to mount a defense against the allegations of the employee who intended to make a complaint.

In another matter, retail store employees experienced ongoing safety concerns that their employer failed to address. The store’s location was in a questionable neighborhood. Employees had expressed concerns about the late closing hour and the unsafe neighborhood. They asked the owner to institute earlier closing times, a request that was denied. Employees took to Facebook where they aired their grievances and criticisms of their manager. In response, the employees were fired for insubordination. However, the NLRB found that this situation also constituted a protected concerted activity. The board cited employee posts stating that they intended to consult an employee rights book to determine whether or not their employer was violating California labor laws. Accordingly, the board determined that the Facebook posts were a concerted activity aimed at protecting employees and not a conspiracy to goad the employer into firing them as the store owner had alleged.

As social media permeates more of the interactions between employees, it seems clear that new legal territory will continue to be covered. When confronted with social media posts by employees, it seems advisable for employers to tread carefully and/or seek legal counsel before taking disciplinary action.

April 19, 2013

Nevada Strengthens Cyberbullying Laws

Bullying has become a hot media topic, but it’s a subject that’s gone beyond the schoolyard bully demanding lunch money. Today, cyberbullying is being put in the spotlight, and the prevalence of this phenomenon is leading to legislation.

Cyberbullying%2048885149-001.jpgIn Nevada, public outcry over videotaped bullying that gets posted to the Internet has caused politicians to pass a new law. Essentially, the legislation prevents the transmission and distribution of violent images involving a child. Minors who knowingly and willfully distribute images of a violent offense against another minor may find themselves facing a juvenile court after the first offense. The court may impose supervision for the minor, though it is not empowered to detain them.

A second offense carries stiffer penalties. A juvenile detention center would be the minor offender’s next stop. Under the law, the detention would be similar to that imposed upon an adult who had committed a misdemeanor.

Parents of children who have been the victims of cyberbullying feel that the new law comes not a moment too soon. Cherie Anderson, a mother whose 17 year-old daughter was herself the victim of a bullying attack, expressed her hope in the days before passage of the bill that it would pass in its entirety without major amendments.

In response to the bullying, Anderson has already begun homeschooling her daughter and has also enacted two house rules that prohibit cell phones and the use of social media. Anderson also said that she finds it “appalling that parents give” children the tools necessary to perpetrate a cyberbullying attack.

Though Nevada’s new law (HERE) is certainly among the first such legislation in the country, it is unlikely to be the last. It seems reasonable to assume that other states and municipalities will soon be considering passage of similar laws.

March 1, 2013

Tenured Teacher Firing Upheld

Anyone who has ever held a job appreciates the importance of venting frustrations, and discussing such issues with friends and colleagues in private is healthy and natural.

However, the increasing prevalence of social media is making what once would have been momentary statements a permanent part of the ethos. At least, that’s what New Jersey first grade teacher Jennifer O’Brien recently learned when she posted some comments to her Facebook page.

Social%20Media%2037877338-001.jpgO’Brien’s comments about being a warden and wondering why she couldn’t bring her first grade students to a school’s scared straight program ignited a firestorm of controversy in the school district where she had been employed for more than a decade. Initially, O’Brien was suspended without pay, but eventual findings by an Administrative Law Judge, the commissioner and an appeals court had O’Brien removed from her tenured position.

O’Brien’s arguments that her posts were protected under the First Amendment fell on deaf ears. The decision to remove O’Brien from her job was supported by citations from the Pickering v. Board of Education case. The court weighed the question of O’Brien’s right to express her viewpoint in social media against the public school district’s interest in providing efficient services. O’Brien’s comments were deemed to not be a matter of “public concern.” As a result, the disruption caused to the school district’s ability to teach was determined to outweigh O’Brien’s First Amendment rights.

Ultimate questions of whether or not a public employee’s private posts on social media websites are protected by the First Amendment will not be answered soon. In the interim, it seems wise for public employees to be judicious, remaining aware at all times that in an increasingly interconnected society, few things said in social media remain private for long. Although O’Brien’s punishment seems unnecessarily harsh, her experience serves as a reminder that a communication from a public employee may not be considered protected speech if it interferes with the operation of the agency that employs them.

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October 9, 2012

Federal Judge Says “NO” to Home Depot’s Request for Former Employee’s Social Media Activity

After 19 years with Home Depot, Danielle Mailhoit was fired. She was a manager of a Burbank, CA Home Depot at the time of her termination in 2010. In May 2011, Mailhoit filed a lawsuit claiming she was fired unlawfully because of her gender and disability (vertigo).

Vertigo%20stairs%2035606055-001.jpgThe lawsuit also claims her employer did not provide reasonable accommodations for her disability as required by law.

One of Home Depot’s actions in the litigation was to ask the court to force Mailhoit to grant them total access to all of her social media accounts and activity back to October 2005, specifically:

Any profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) from social-networking sites from October 2005 (the approximate date Plaintiff claims she first was discriminated against by Home Depot), through the present, that reveal, refer, or relate to any emotion, feeling, or mental state of Plaintiff, as well as communications by or from Plaintiff that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state...

Magistrate Judge Suzanne Segal of the United States District Court for the Central District of California ruled last month that Home Depot’s request was "impermissibly overbroad". Segal ruled that Home Depot has not proved "that every picture of plaintiff taken over a seven-year period and posted on her profile by her or tagged to her profile by other people would be considered relevant."

Judge Segal did grant Home Depot access to communication(s) between Mailhoit and current/former Home Depot employees because those would be pertinent to the lawsuit.

July 6, 2012

Blogger Who Dissed Her Students Finds Herself Dismissed

A Pennsylvania teacher who wrote a blog filled with derisive insults and negative comments about her students wasn't such a prize herself, according to the school district that recently fired her. Natalie Munroe was terminated for poor performance by a unanimous vote at a recent board meeting.

Is%20Teacher%20a%20Bad%20Blogger.jpgMunroe claims that she was an excellent teacher who was let go in retaliation for calling students lazy, rude, stupid, rat-like and other insults on what was supposed to be an anonymous blog. As it turned out, the students weren't as stupid or as lazy as Munroe thought they were, and they had little trouble figuring out that the blogger known as Natalie M. looked a lot like their English teacher at Central Bucks High School East. Munroe's exposure in early 2011 as the teacher who referred to her students as lazy whiners and professed to hate at least one of them caused outrage across the country.

The school district's decision came only a few days after Munroe filed a lawsuit claiming the district violated her constitutional right to freedom of speech. According to board president Paul Faulker, Munroe's performance problems were already a problem before she began casting aspersions upon her students.

"Ms. Munroe's lawsuit against the district asserts that she was an excellent teacher and given excellent ratings. Nothing could be further from the truth" Faulkner said.

Munroe was suspended in February of 2011, shortly after her comments and taunts first came to light. However, she was allowed to come back to work as a teacher during the summer of 2011. According to her, the school district is punishing her for making statements she had every right to make. Her attorney, Steven Rovner, agreed with Munroe's assessment of the situation and said that the school board "spent the whole year setting her up to fail."

Continue reading "Blogger Who Dissed Her Students Finds Herself Dismissed " »

May 4, 2012

Teenager Sues Classmates for Cyberbullying

Alex Boston, a 14-year-old girl from Georgia, has filed suit against two other teenagers and their parents for libel after the pair impersonated her online, depicting her as a sexually active, marijuana-smoking racist.

stop%20cyberbullying.jpgCourt documents allege that the two were classmates of Boston who opened a Facebook account containing racist video. Additionally, the two posted messages on the walls of Boston's friends in which she appeared to admit to abusing drugs and having sex. All these characterizations were untrue and the defendants knew it, according to Boston's attorney, Natalie Woodward.

Boston first came across the Facebook page last year. She says that the account, which appeared to belong to her and to reflect her views, was very upsetting. The fake page was so well executed that Boston's other classmates believed that they represented the real Boston, and she was subjected to “hatred, contempt and ridicule" as a result. In her suit, she accuses the defendants of intentional infliction of emotional distress, as well as defamation.

Boston's parents initially went to school officials, who were unable to help because Georgia law does not allow schools to punish students who bully other students off-campus. Internet bullying initiated outside of school does not meet the Georgia requirements for on-campus bullying.

Local police were also unable to help because Georgia had no applicable law against cyberbullying. They suggested the Bostons ask Facebook to close the account and remove the page. When Facebook failed to take action, the Bostons brought suit against the teenagers behind the hurtful account. Ironically, once news of the lawsuit was featured on CNN, Facebook removed the page.

According to Woodward, the attack was unexpected. The defendants reportedly told adults from school that they simply didn't like Boston.

Federal courts have historically toed a fine line in such cases. In a case from 2005, a federal judge ruled that a school in Pennsylvania erred when they suspended a student for creating a MySpace page that parodied the school’s principal but didn't disrupt school. However, a similar suspension was upheld by a federal judge in a West Virginia case involving a student who implied through a website that another student had an STD.

March 21, 2012

School Punishes Off-Campus Speech; Students Sue

A Missouri school district is being sued after a district employee punished two students for their off-campus speech. Lee's Summit R-7 School District is accused of violating the First and Fourteenth Amendment rights of two honor roll students. The suit was filed in federal court by Brian and Linda Wilson, the parents of the students.

Blogging%20Blackboard.jpgAccording to court documents, the district suspended the students, who are twin boys, for six months for creating a nonviolent blog. The court is being asked to dismiss the suspensions and expunge them from the boys' school records.

The blog,, was a satirical site that the boys created and maintained on their own computer away from school outside of school hours. According to the suit, the students went to great lengths to prevent the site from being accessed by the general population of their high school, even using a Dutch domain name to make it difficult to find through an Internet search.
The school became involved when administrators learned of the site on the same day that a reader, unbeknownst to the students, posted a racial slur in the comments section of the blog.

Although another student promptly removed the slur, the incident appears to have spurred the district's superintendent, David McGehee, to suspend the boys on the grounds that they were involved with the blog.

In their suit, the parents of the students state that the boys were offered the chance to attend an alternative school for at-risk students. However, the alternative school does not have programs capable of meeting the academic needs of honor students, according to the Wilsons. In addition, the alternative school does not have its own band and will not allow the boys to continue to maintain the leadership roles they have earned in their regular high school's band.

According to court papers, the parents fear the suspension will interfere with the students' chances of being accepted by colleges. In addition, the suit maintains that allowing the school district to punish legal speech that took place away from school will have far-reaching negative consequences. If the district's actions go unchecked, the suit alleges, “The result would be an impermissible chilling effect on speech.”

February 23, 2012

Proposed Indiana Law Seeks to Allow Schools to Punish Off-Campus Speech

In Indiana, lawmakers are considering new legislation that would give schools the power to punish students for legal behavior that occurs away from school, including statements and opinions they post on personal blogs or Facebook accounts.

freedom%20of%20speech%20off%20campus.jpgThe bill was approved by the State’s House of Representatives in January 2012 and is now in the hands of the Indiana Senate, according to the Student Press Law Center. It has been justified as an attempt to prevent cyberbullying and school cheating.

Indiana law already allows students to be disciplined for illegal behavior that occurs off campus, as long as the behavior could reasonably be considered to interfere with “school purposes or educational function.” State representative Eric Koch wants to amend the existing law to cover legal behavior, as well.

The new law has Ken Falk of the American Civil Liberties Union of Indiana concerned about conflicts with the Constitution. “From a First Amendment perspective,” he said, “if the student engages in lawful activity off of school grounds, there’s a very high standard that has to be applied before that can somehow lead to discipline.”

The Indiana School Boards Association supports Koch, who is not concerned about conflicts with the First Amendment. He cited Kowalski v. Berkeley County Schools, in which a federal appeals court upheld a school’s right to punish disruptive speech that occurred away from school. “I wouldn’t knowingly promote anything that would infringe First Amendment rights,” he said.

Falk questioned the need for a law concerning cheating and cyberbullying. Cheating should continue to be handled as it has been in the past, he said, and cyberbullying should only be punishable when there is an imminent threat of violence. The proposed legislation is ripe for abuse, according to Falk, who said that a student who belongs to a gay rights group, for example, could be punished if the school decides the activity is troublesome.

Frank LoMonte, of the Student Press Law Center, said that the law could set a bad precedent. “This could be like a bad cold that gets passed from state to state,” he said. He warned that the law could be abused by schools that could use it for image control.

February 16, 2012

Judge Rules Deleting Facebook Photos is Tampering with Evidence

“Spoliation of evidence" is a legal phrase describing the deliberate destruction of evidence that would impact a trial. Although spoliation of evidence is a rare finding in civil cases, it was the finding of a state district judge in Virginia, who imposed fines totaling $522,000 on attorney Matthew Murray. Murray’s client was also fined $180,000 for acting on his lawyer’s advice to break the law. The case, Lester v. Allied Concrete Co., was a wrongful death suit filed on behalf of a bereaved husband.

Spoliation%20of%20Evidence.jpgThe court found that Murray grew concerned that pictures Lester had posted on his Facebook account contradicted the pair’s claims in their case. The case was ultimately decided in Lester’s favor and $10 million in damages was awarded to him by a jury.

The deleted photographs came to light when an attorney for the defense managed to view Lester’s Facebook page through a mutual friend’s account. The page contained pictures that presented Lester engaged in various activities. Murray became concerned that some of these photographs, including one of Lester holding a beer and wearing a T-shirt proclaiming his admiration for “hot moms,” might cast doubt on Lester’s claim to be distraught over the loss of his wife. He advised Lester to remove the pictures.

Allied Concrete’s attorney was able to establish in court that Lester deleted the pictures, and the defense was furnished copies of them before the trial. After the trial, the judge ruled that all emails that had been exchanged between Murray and Lester were not protected under attorney-client privilege laws and demanded copies of them.

As a result of the evidence contained in the photographs, the judge decided that Lester was dishonest about his depression and the treatment he was receiving for it. Based on the emails exchanged between Lester and Murray, Lester was also found to have lied to the court about the existence of his Facebook account, and then lied about his attempts to delete it and its contents. In addition, the judge determined that Murray’s actions amounted to spoliation of evidence, and further found that he had attempted to cover his tracks by submitting incomplete evidence and blaming the act on a paralegal. After the ruling, Murray resigned from his law firm.

Continue reading "Judge Rules Deleting Facebook Photos is Tampering with Evidence " »

January 4, 2012

Who Owns Your Twitter Account?

Although Twitter may have started out as a social networking tool, more and more businesses are using it as a marketing tool. A lot of people have Twitter accounts that they think of as a tool to promote their own careers. Sometimes, in the process of promoting their careers, they may do a little cross-promotion for their employer. After all, if it’s good for the company, it’s good for the employee, usually. “A rising tide lifts all boats,” to quote John F. Kennedy. But if you use your Twitter account to promote your company as well as yourself, then who owns the account?

Twitter%20Follow%20me.jpgA current legal case filed with the US District Court in the Northern District of California involving a private individual who used his Twitter account to boost his employer seeks to answer this question. PhoneDog, a mobile products website, is suing its former employee, Noah Kravitz, for $340,000.

PhoneDog says that Kravitz was “given use of” a Twitter account while he worked there, and that he continued to use the account after he left the firm, constituting theft of trade secrets and damage to the PhoneDog’s “business, goodwill, and reputation.”

PhoneDog says that the Twitter account @PhoneDog_Noah was used by Kravitz to “disseminate information and promote PhoneDog's services on behalf of PhoneDog." Kravitz counters that he created the account, linked it to his email address and used it to tweet the things that mattered to him personally, including tweets related to his career and PhoneDog, as well as sports and food, among other subjects.

In fact, says Kravitz, the account wouldn’t work as well if it didn’t combine both personal and career elements. "It's this melding of personal and professional which is why I've gained a modest following," he said in an interview, "Because it's not just the dry headline and link to something."

PhoneDog claims in the lawsuit that it asked Kravitz to drop the account when he left the company. Instead, it claims, he kept the account but changed the handle. Kravitz tells a different story. He says PhoneDog didn’t ask any such thing. Instead, he says, it gave him a green light to keep using the account and even to mention the company. "At no point until July of this year, a good 8 months after we parted ways, did they ask for the twitter account or claim in was their property."

In the lawsuit, PhoneDog claims that Kravitz’ post-employment use of the account is an attempt “…to discredit PhoneDog and destroy the confidence that PhoneDog's users have in PhoneDog."

According to Henry J. Cittone, an intellectual property attorney, the crucial question is going to be whether Kravitz was paid to create the account and to send Tweets. “They said they hired him to create this feed for them. That is the way the company could dislodge a Twitter feed from its owner."

Continue reading "Who Owns Your Twitter Account?" »

November 18, 2011

Are Teachers Being Cyber Bullied?

According to a study conducted by Plymouth University, teachers in the UK are increasingly becoming the target of cyber bullying at the hands of students and parents. Andy Phippen, who authored the study, questioned nearly 400 teachers earlier this year about their experiences with cyber bullying. He discovered that 35 percent of the teachers in his sample said that they or a colleague had been the victim of cyber bullying perpetrated by students or their parents.

cyber%20bulling%20affects.jpgIn an interview, Phippen stated, “Everyone acknowledges this is a problem and something needs to be done about it, but schools lack support. It is a sticky area as some of the things posted may not be considered illegal." Furthermore, British schools have not shown much support for teachers who have been targeted. "I heard of one case where a teacher told his employers about the bullying and not only did they tell other members to staff to ignore this teacher, they also suspended him. Their reasoning was ‘there is no smoke without fire’.”

The study's participants reported incidents of cyber bullying ranging from Facebook postings to abusive Tweets. Phippen was particularly disturbed to discover that 26 percent of the bullying was actually committed by parents. One educator who participated in the study had what she called a "mini breakdown" after a year-long campaign of abuse by a parent. “The parental statistics were particularly surprising," said Phippen. "Schools are definitely playing down the severity of the issue, whether it’s because they just don’t realize, or because they don’t know how to deal with it.”

Phippen wants to change that and thinks Britain needs a nationwide support network to address the problem. Although I am not aware of any similar study in the US, it's (unfortunately) a safe bet that it's happening here. In recent years American courts have heard several cases in which students were suing over punishments meted out by schools for mocking or insulting posts made outside of school.

October 31, 2011

Does Social Media Help or Hinder Student Athletes?

Reports of schools violating NCAA regulations by providing incentives to student athletes are nothing new. Numerous universities have been sanctioned for such violations in recent years, including the University of Miami, Ohio State University and the University of Southern California, among others. The most recent scandal, involving the University of North Carolina, offers a new twist on an old theme, however. The UNC scandal is notable because it was social media that first alerted NCAA officials that something was amiss. Tweets made by a student player on Twitter revealed that he was receiving unsanctioned benefits from the school.

Social%20Media%20%26%20Student%20Athletes.jpg In the NCAA’s Notice of Allegations, UNC was cited for failing to properly monitor the use of social media by student athletes. In response to the NCAA’s unprecedented actions in this case, universities across the nation have taken steps to limit, and in some cases, entirely prevent, athletes’ use of social media. These actions put schools in the precarious position of trying to restrict the First Amendment rights of their student athletes, most of whom are adults.

Some schools have stopped short of forbidding student athletes from using social media altogether, making mandatory monitoring a condition of team membership. Others have ventured even further into shaky legal ground by enforcing a total prohibition on social media use for all student athletes. Because the Supreme Court has made it clear that university students give up none of their First Amendment rights when they enroll, curtailing these rights leaves a university vulnerable to legal action from student athletes. It could be argued that banning student athletes from using social media rises to the level of a prior restraint on speech.

In the event of a legal challenge, universities will be forced to defend themselves in court and may end up paying damages. A more proactive approach might be to put an end to inappropriate incentives for student athletes, rather than taking questionable steps to prevent the athletes from telling anyone they are receiving them.

October 20, 2011

Did Special Education Teacher Use Facebook Inappropriately?

A special education teacher has been placed on paid administrative leave after a parent discovered he had posted derogatory pictures and comments about his students on Facebook. Jeremy Hollinger, who is employed by the Mobile (Alabama) County Public School system to teach special education at Eichold-Mertz Elementary School, posted the comments and pictures on his public Facebook page.

Special%20Needs%20Students.jpgCeleste Dennis, who saw Hollinger's site, was upset enough to insist her son, a second-grader at Eichold-Mertz, be transferred out of the school. Although she says there were plenty of derogatory comments on the page, including posts about students soiling themselves and eating crayons, she says that one insult hit especially close to home. "It hurt. It genuinely hurt me, said Dennis."My son wears a helmet for seizures during P.E. He had a picture of himself with my son's helmet on making fun of him like that was some type of a joke."

Dennis responded to the cruel postings by reporting Hollinger to the school system and insisting that her son be transferred. The school was slow to take action against Hollinger, however, and he remained in his position at the school until after the incident caught the attention of the press. Initially, the school system refused to explain why Hollinger was still at his post. Nancy Pierce, the school's representative, initially declined to discuss the matter, saying, “Because it's a personnel matter, I can't discuss that with you. The appropriate measures were taken by our Human Resources Department."

However, on Tuesday, October 18, it was revealed that Hollinger had been suspended with pay as a result of the incident. In the meantime, Dennis hopes the suspension becomes permanent. "It takes a special type of person to deal with special children, and he is not that person," said Dennis. "I just want him out of there."

September 2, 2011

UPDATE: Federal Court Rules in Slumber Party Lawsuit

A federal court recently ruled in the infamous Indiana “slumber party lawsuit” we highlighted in 2009 (CLICK HERE). Two female students sued school officials following their respective athletic suspensions for posting sexually suggestive pictures of themselves online. Captured during a summer-break slumber party, the depictions displayed no indication of the subjects' academic or athletic affiliations.
U.S. District Chief Judge Philip P. Simon U.S. District Court for the District of Northern Indiana found in favor of the minor female plaintiffs. Remoteness of the girls' “guilty act” to their respective athletic and academic qualifications was the apparent lynchpin of the court's legal analysis.

The court's legal reasoning relied heavily upon that articulated by the U.S. Supreme Court in its 1969 landmark decision, Tinker v. Des Moines. Tinker involved a legal challenge by two students who were disciplined for wearing black armbands to school as a show of anti-Vietnam sentiment. An absence of any potential disruption within the academic arena was the main factor that clinched the case.

Judge Simon also assigned substantial significance to prior Pennsylvania precedent in the instant action. He cited the grave inherent dangers of permitting public school officials to reach beyond educational boundaries to exert undue influence in extracurricular matters.

In its final analysis, the court also noted the very vague pupil handbook verbiage that prohibits actions that “discredit” or “dishonor” the school or its students. This over breadth was found to be violative of students' Constitutional rights to free expression.

The court repeatedly deemed plaintiffs' postings as obscene absurdities. To its credit, however, it also noted that official sanctions based upon subjective judgments are precisely what First Amendment framers sought to prevent.

ACLU attorney Ken Falk is plaintiffs' legal counsel. Falk expressed personal pleasure with the precedential value of this case for filling an ever-widening legal void in today's high-tech communicative environment. He further posited that the ruling offers all public school officials a valuable lesson by delineating educators' permissible legal boundaries.

August 26, 2011

Florida Legislature Debates Decreased Sanctions for Youthful Sexters

Granting youth greater leniency is currently a high-profile subject of hot debate within the Sunshine State. For the last two years, Florida lawmakers have considered a statutory amendment to decriminalize underage sexting. Numerous states are wrestling with this “hot” issue.

As the term implies, sexting is the electronic transmittal of sexually explicit content. Cell phones are the most common instruments chosen by minors for this purpose.

texting%20or%20sexting.jpgUnderage sexting is a felony under existing Florida law (and in most other states as well). Therefore, courts must currently treat youthful sexters in the same manner as large-scale child pornography distributors and other sexual predators. Convicted minors incur permanent criminal records, lifelong compulsory sex offender registration, and concurrent travel and residency restrictions.

A notable example involved an 18-year-old Orlando resident sentenced to five years’ probation and mandatory sex offender registration for life. These harsh consequences resulted from the young man’s decision to e-mail nude pictures of his 16-year-old girlfriend to numerous friends and family members after a lover‘s quarrel.

By contrast, the proposed amendment would relegate minors’ first sexting offenses to misdemeanors. Maximum allowable punishment would be an eight-hour term of community service or a $60.00 fine. Penalties for second and subsequent offenses would escalate from those modest levels. Punishment for adult offenders would remain unaltered.

Bullying, intimidation, and blackmail are common motivations for the crime of sexting. Thus, under the new law, underage sexters would still face separate enhanced sentences for ancillary offenses such as stalking.

Florida Senator Charlie Dean observed that such issues need to nipped in the bud to avoid youthful pranks from becoming full-blown sexual predation by full-grown perpetrators. Dean further opined that the amendment would serve all these ends - without turning kids into criminals.

Ensuring that punishment fits the crime is a widely accepted legal principle of long standing. Whether youth is sufficient mitigation for establishing allowable criminal sanctions is the question of the legislative debate.

Society already acknowledges offender-specific traits as valid criteria in setting the relative severity of criminal sanctions. Courts and legislators have long recognized perpetrator intent and mental capacity as legitimate determinants of relative punitive severity. Thus, the Florida Legislature’s reconsideration of its previous stance that turned “molehills” of youthful indiscretion into mountains of lifelong ramifications is commendable.

HERE is a link to a list of 2011 legislation in 21 states related to sexting.

August 4, 2011

Federal Appeals Court Rules Against High School Cyberbully

A federal appeals court has refused to order the reinstatement of a student suspended for cyber bullying. Kara Kowalski was a senior at Musselman High School in West Virginia when she launched her vicious attack against a classmate. Kara’s weapon of destruction was a personalized MySpace page entitled “S.A.S.H.”

cyber%20bully.jpgAt subsequent court hearings, Kara stated that S.A.S.H was an acronym for “Students Against Sluts Herpes.” She went on to allege that another student started a false rumor that the title really represented “Students Against Shay’s Herpes.”

Nonetheless, numerous youth immediately posted images of Shay on S.A.S.H. All of the intentionally altered pictures suggested that Shay had a venereal disease. Shay suffered severe harassment and ostracism as a direct and proximate cause thereof.

When Shay’s parents complained to authorities about this offensive content, school administrator deemed that S.A.S.H. was indeed a “hate website.” Official school policy prohibits cyber bullying. Accordingly, Kara received a five-day disciplinary suspension.

The ensuing litigation posited that this punishment violated Kara’s constitutional rights to due process and free speech.

The court rejected those claims, however. The sole purpose of S.A.S.H. as a forum for defamatory publication and derogatory depictions seems to have been the underlying rationale.

Thus, the Fourth Circuit jurists ruled that school officials did not usurp their legal authority by suspending Kara. Judge Paul V. Neimeyer penned the majority view. In it, he opined that school officials acted appropriately by taking Kara’s callous disregard for a fellow student very seriously.

In addition to being suspended, Kara was prohibited from crowning her successor to the “Queen of Charm” throne. She also lost a cheerleading post.

Ironically, Kara also claimed to have suffered severe depression and social isolation as collateral consequences. The court was apathetic to those assertions, however.

This is a great example of school authorities doing the right thing for the right reasons.

The last paragraph of the Court’s decision says it best: “Rather than respond constructively to the school’s efforts to bring order and provide a lesson following the incident, Kowalski has rejected those efforts and sued school authorities for damages and other relief. Regretfully, she yet fails to see that such harassment and bullying is inappropriate and hurtful and that it must be taken seriously by school administrators in order to preserve an appropriate pedagogical environment. Indeed, school administrators are becoming increasingly alarmed by the phenomenon, and the events in this case are but one example of such bullying and school administrators’ efforts to contain it. Suffice it to hold here that, where such speech has a sufficient nexus with the school, the Constitution is not written to hinder school administrators’ good faith efforts to address the problem."

The entire decision may be viewed HERE.

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November 9, 2009

ACLU Files Lawsuit Over Slumber Party Photos

The American Civil Liberties Union of Indiana has filed a lawsuit on behalf of two students who were suspended from athletic activities after their principal found sexually suggestive photos from a slumber party. In the lawsuit, the ACLU claims that Smith Green Community School Corporation and the Churubusco High School Principal, Mr. Austin Couch violated the students' rights by suspending them for out of school activities. The photos were posted to the student's MySpace pages.

pajama_party.jpgAccording to the lawsuit documentation, the pictures were taken during a slumber party that occurred during the summer months. The students took photos of themselves kissing and licking a novelty lollipop and pictures of themselves wearing lingerie with dollar bills stuck within the clothing. There was no identification with the photos suggesting that the students attended the high school. The lawsuit states that the students were being humorous and that the actions were "irrelevant" to school functions.

After someone accessed, copied and supplied the photos to the principal, the principal suspended the students from all extracurricular activities for the school year. After parents spoke to the principal, the principal agreed to reduce their suspensions if the students attended several counseling sessions and apologized to the athletic board.

Although the school and principal stated they are unable to comment, they did release a statement stating that the pictures "caused a disruption within our athletic teams at the beginning of this year's sessions." The school states the students did not meet extracurricular expectations.

While the parents appealed the ruling, the students attended the counseling sessions so they could participate in fall activities. They also apologized for their behavior in front of the all male athletic board. The ACLU states that this was humiliating and embarrassing.

The ACLU states that this is only one case, out of many similar cases playing out across the country. The organization claims that private moments like these should stay there and out of school administrator's hands.

The school uses a code of conduct that states that the principal "may exclude any student athlete from representing Churubusco High School if his/her conduct in or out of school reflects discredit upon Churubusco High School or the IHSAA or creates a disruptive influence on the discipline, good order, moral or educational environment at Churubusco High School."

The ACLU is hoping to classify the case as a class action suit, since many parents could be part of it. The lawsuit asks for the district to no longer be allowed to punish students for such behaviors and asks that the incident be expunged from the two student's records.

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