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					                                    Twitter and Employment Law Issues

          This is a seminar paper authored by Vincent Pascual on Twitter and potential

Employment Law issues that employers and employees may face with regards to what users post

online and how those posts may have consequences. The paper was produced for a course

entitled “Employment Law and Technology,” taught at the University of San Diego School of

Law during Spring Semester 2009 by Rich Paul, Partner at Paul, Plevin, Sullivan &

Connaughton LLP, whose practice focuses on employment law.

          Special thanks to Rich Paul for helping the author develop ideas for this paper as well as

for course material used in this paper. Acknowledgements also go to Jerry Sherwin, Jennifer

Cohen, and Rex Gradeless for contributing articles, blog postings, and ideas used as the

foundation of the paper.



                                                What is Twitter?

          Twitter is a social network where one can post a short message of no more than 140

characters detailing what one is doing, what is on one’s mind, or something one finds to be

interesting. Messages are referred to as “tweets”, or short, bite-sized real-time updates. Twitter

can be accessed from a computer or from mobile devices such as a cell phone, BlackBerry, or

iPhone. Tweeting is faster than writing a blog post or email that takes time to process. Tweets

will usually only reflect an event long after the event has passed. Twitter has the intimacy of a

phone call or an email, but with a 140-character limit. One can share his or her status and what

he or she is doing live via Twitter.1




1
    Twitter in Plain English (2008), http://www.youtube.com/watch?v=ddO9idmax0o (last visited January 28, 2009).


                                                         1
        Many real-life examples illustrate how Twitter can be used to share real-time updates.

People who were present in Mumbai, India during the terrorist siege of 2008 could tweet about

what was occurring live.2 This allowed Twitter users to read about events as they unfolded. A

San Jose woman used her Twitter account to tell Demi Moore that she would commit suicide;

this prompted numerous calls from across the country to the police. The police were able to save

the woman and take her in for evaluation.3

        People are interested in knowing what users such as their friends, real persons,

corporations, politicians, and celebrities, do in their personal lives beyond their career or

profession. With a blog post or email, one will likely spend more than several minutes to reflect

on an event. That event will have concluded long before a blog post or email about an event is

completed. Politicians might tweet about how they are heading to a campaign rally or how they

feel about a vote on particular legislation. Friends might tweet about waiting in line at

Starbucks, an interesting sight, how bad a service is, or how slowly traffic is moving. Celebrities

might discuss their upcoming events. Technology enthusiasts might promote their latest video as

well as the latest technologies.

        As social media expert Jennifer Cohen says, “Twitter is about putting words in front of a

face, name or business.” Twitter allows all people to have an equal medium to communicate.

As soon as a user finds other users to interact and start a dialogue with, that user becomes “a real,

live person representing someone or something.” Users come to know others through tweets

about problems, thoughts, advice, and interesting facts. Once another user knows us, we want


2
  Gaurav Mishra, Real Time Citizen Journalism in Mumbai Terrorist Attacks (2008),
http://www.gauravonomics.com/blog/real-time-citizen-journalism-in-mumbai-terrorist-attacks/ (last visited May 14,
2009).
3
  Lori Preuitt, Demi Moore, Twitter Save Suicidal San Jose Woman (2009),
http://www.msnbc.msn.com/id/30030003.



                                                        2
more users to follow us, to read our tweets, and to enjoy them and find them valuable. After

proving we provide value in our tweets, we proceed to create an element of trust. 4



                                          How do you use Twitter?

        Sign up for free on twitter.com. Twitter pages look like blog pages, but with very short

posts.5 The user’s Twitter home page contains updates from other users the user follows. A

personal profile contains a record of tweets posted by the user. I can follow anyone I wish, but

whomever I follow can choose whether to follow me back. Conversely, anyone can follow me if

I allow it (privacy settings), but I do not have to follow the user back if the user is not interesting

enough. Users can tweet about what they’re doing, what they find interesting, or links to pages

they think are worth viewing.



                           What tools can be used to expand Twitter’s reach?

        In order to fit links into a 140-character constraint, one can shorten a link by plugging the

link into a URL-shortener such as TinyURL, which will provide a shorter link that connects to

the original link.6 This has been a more efficient method of sharing links while retaining the

ability to express one’s thoughts.

        Using TwitPic and my Twitter Username, I can post links to pictures I post on TwitPic.

When I post a picture, a link to that picture is automatically broadcasted on Twitter as a Tweet.




4
  Jennifer Cohen, Twitter – What's the point?, http://jencohen14.wordpress.com/2008/12/16/twitter-whats-the-point/
(last visited May 14, 2009).
5
  Twitter Home Page, http://twitter.com (last visited May 14, 2009).
6
  TinyURL, http://tinyurl.com (last visited May 14, 2009).


                                                        3
In a similar fashion, TwitterFeed allows me to broadcast a blog post to Twitter, automatically

providing a link to the blog post as soon as I publish a new post.7

         To refer to another user, or to communicate with another user, use the “@” symbol before

their user name.8 For example, if I want to post someone’s user name when referring to their

tweet or if I want to retweet, or retransmit another person’s tweet, something I found interesting

and worth sharing, I paste it as is and write in the prefix: “Retweeting” or “RT”.9

         One can search for current trends and most discussed topics by using the search bar on

the right-hand side of the screen and view a list of the topics users are tweeting about most

frequently. One can also search for users tweeting about his or her interests.10 In tweets, users

can add hashtags in order to link them to searchable words by using the “#” symbol before the

word. Examples of popular search terms and topics include #swineflu, #iphone, #superbowl,

#startrek, #g20, and #obama.



                            How is Twitter applied in the employment world?

         Cohen blogs that Twitter is used “so people can get to know you, like you, and trust

you.”11 The 140 Character Limit means a user must make his or her point(s) swiftly. A user

must also entice an audience to link for more information.12




7
  Twitpic, http://twitpic.com (last visited May 14, 2009).
8
  HOW TO: #Hashtags on twitter, http://blog.complimedia.com/2009/04/how-to-hashtags-on-twitter-quote-
followfriday-etc/ (last visited May 14, 2009).
9
  Twitter etiquette and shorthand, http://getsatisfaction.com/twitter/topics/twitter_etiquette_and_shorthand (last
visited May 14, 2009).
10
   Twitter Blog, Testing A More Integrated Search Experience, http://blog.twitter.com/2009/02/testing-more-
integrated-search.html (last visited May 14, 2009).
11
   Jennifer Cohen, Twitter – What's the point?, http://jencohen14.wordpress.com/2008/12/16/twitter-whats-the-
point/ (last visited May 14, 2009).
12
   HR World Not Immune From Twitter Craze, http://www.workforce.com/section/00/article/26/30/43.php (last
visited April 11, 2009).


                                                          4
        The business and employment uses of Twitter are myriad. Businesses such as Home

Depot may use Twitter to connect with customers on a personal level outside of business.13

Starbucks and Dell may connect with customers in order to discuss products and/or services. 14 15

Trader Joe’s may share new ideas and products, while Rubbermaid shares how-tos and tips for

organizing one’s closet.16 17 General Motors has used Twitter to tweet live from events

showcasing new products.18

        Twitter may be used to track trends via search.twitter.com. A business will want to know

what users care most about. The business will ask some of the following questions. “How hot is

my product?” “Is my PR campaign effective?”19 Twitter allows people to become more

engaged with the political process and to monitor current events closely. They may do so by

following the Twitter profiles of the White House, 10 Downing Street, lawmakers, federal

agencies, government officials, and public affairs journalists such as David Gregory, moderator

of NBC’s Meet the Press.20 Twitter allows public figures such as Barack Obama, Shaquille

O’Neal, and Britney Spears to discuss upcoming and current events.21 22 23




13
   Twitter – Home Depot, http://twitter.com/homedepot (last visited May 14, 2009).
14
   Twitter – Starbucks, http://twitter.com/starbucks (last visited May 14, 2009).
15
   Twitter – Dell Computer, http://twitter.com/Direct2Dell (last visited May 14, 2009).
16
   Twitter – Trader Joe’s, http://twitter.com/traderjoes (last visited May 14, 2009).
17
   Twitter – Rubbermaid, http://twitter.com/rubbermaid (last visited May 14, 2009).
18
   Twitter – General Motors, http://twitter.com/GMblogs (last visited May 14, 2009).
19
   Mark Gibbs, Analyzing Twitter with Excel, Part 1, COMPUTERWORLD, April 3, 2009,
http://www.computerworld.com/action/article.do?command=viewArticleBasic&articleId=9131044.

20
   Frank Davies, Congress and Twitter: Representatives Run With New Technology, CHICAGO TRIBUNE, April 9,
2009, http://www.chicagotribune.com/business/chi-tc-biz-thu-twitter-congress-apr09,0,4270600.story.
21
   Twitter – Barack Obama, http://twitter.com/BarackObama (last visited May 14, 2009).
22
   Twitter – Shaquille O’Neal, http://twitter.com/THE_REAL_SHAQ (last visited May 14, 2009).
23
   Twitter – Britney Spears, http://twitter.com/BritneySpears (last visited May 14, 2009).


                                                     5
                                Pitfalls as Related to Employment Law

        Users must be careful what they tweet. Twitter is subject to vast potential liability, as is

any electronic communication tool. Tweets are no different from letters, e-mails, or text

messages. Tweets may be damaging and discoverable. This poses significant problems for

heavily-regulated companies who are required to preserve and maintain electronic records.

Examples of such companies include the securities industry and federal contractors. These

companies will have an additional compliance step to handle, not even considering the potential

for privileged and/or private information to be leaked out.24



                                        Limit of 140 Characters

        Shorter tweets are more likely to be misinterpreted. The 140-character limit allows users

to fall into trouble. When a user tweets something, sometimes the user does not realize that the

tweet creates a permanent record on the Internet. Tweets are quick and instantaneous sound

bites. Instantaneous messages are not the most well-thought out. Someone could say something

when they are angry or frustrated. Tweets not well-thought out open the door to poor judgment.

Once something is tweeted, it cannot be taken back.25 One example illustrating Twitter’s 140-

character limit involves FedEx and Memphis. A marketing guru criticized Memphis, Tennessee,

where FedEx is based, and when he visited Memphis, he faced the scorn of FedEx employees

who are proud of Memphis despite the city’s shortcomings.26 Another example where a tweet

could be misinterpreted due to its brevity is in retweeting someone else’s already-posted tweet.

This raises the question: is a user responsible for what is retweeted? Twitter user @Rex7


24
   Tresa Baldas, Beware: Your 'Tweet' on Twitter Could Be Trouble, THE NATIONAL LAW JOURNAL, December 22,
2008, http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202426916023.
25
   Id.
26
   Shankman.com, Be Careful What You Post, January 15, 2009, http://shankman.com/be-careful-what-you-post/.


                                                     6
retweeted others’ tweets because he thought they were worth reading and worth considering.

Some might misconstrue his tweets as an endorsement of the tweets’ content.27 This raises the

problem of Foreseeable Republication for Defamation. That means the person who posted the

original tweet can be held liable not only for their own publication, but also for damage caused

by foreseeable retweeting of allegedly defamatory statements.




                      Trust that (quasi-live) two-way communication engenders



                                        Protection of Trade Secrets

        Trade secrets and other company secrets could potentially be exposed via Twitter,

especially via corporate profiles. Such conversations are legally binding and subject to the legal

rules of electronic discovery. This means tweets could be subpoenaed. At greater peril to

companies, secrets could be retweeted and publicized. One suggestion to deal with this problem

is to establish guidelines under which employees may Tweet, whether from a corporate profile or

a personal profile. If at all possible, employees should be prevented from or use extreme caution

in tweeting from a corporate profile or network.28

        Recall the Whole Foods scenario, where the CEO of Whole Foods disparaged another

company in his blog. The blog engendered trust with the readers, who enjoy reading about the

intimate and personal details about a CEO’s life.29 Twitter engenders a greater kind of trust,

because one can read someone’s thoughts at an instant point in time; those thoughts as expressed

27
   Twitter – Rex7, http://twitter.com/Rex7 (last visited May 14, 2009).
28
   AndaPR, Twitter in and about the workplace can bring trouble, December 24, 2008,
http://andapr.wordpress.com/2008/12/24/twitter-in-and-about-the-workplace-can-bring-trouble/.
29
   Richard A. Paul & Lisa Hird Chung, Brave New Cyberworld: The Employer’s Guide to the Interactive Internet,
24 THE LABOR LAW. 109, 119 (2008).


                                                      7
in tweets may not necessarily be well considered before editing.30 For example, Rep. Pete

Hoekstra (R-MI), the top Republican on the House Select Committee on Intelligence, tweeted

about a visit to Iraq that was not to be publicized. He tweeted about what he was hoping for and

what he was expecting.31 This is analogous to revealing trade secrets in public because the

United States has an interest in keeping intelligence-related information secret because to do

otherwise would be to empower enemies of the U.S. Hoekstra stopped Tweeting about his visit

as soon as his actions met scorn. The Pentagon has ordered a review of Twitter and other

electronic devices in this fashion.32 In another example, a juror used Twitter to discuss what he

was doing in an ongoing trial.33 The juror sent eight tweets indicating that he gave away $12

million of a company’s money in an award to plaintiffs who invested in that company and

became victims of a Ponzi Scheme. The juror discussed aspects of an ongoing trial with the

public. This might be cause for calling for a mistrial. In another real-world scenario, the

Virginia Republican Party Chairman thwarted his own party’s coup by tweeting that a Senate

Democrat would either switch parties or leave the caucus and negotiations for power-sharing

were under way. However, he never figured that Democrats were following his feed, and

subsequently, the Democrats said that negotiations were quashed.34




30
   David Pogue, If you Tweet It, They Will Come, The New York Times, April 15, 2009,
http://pogue.blogs.nytimes.com/2009/04/15/if-you-tweet-it-they-will-come/.
31
   Helen A.S. Popkin, Twitter Gets You Fired in 140 Characters or Less, MSNBC, March 23, 2009,
http://www.msnbc.msn.com/id/29796962/.
32
   Kyla King, Congressman Pete Hoekstra's Twitter Flap Prompts Pentagon Policy Review, MLive, February 11,
2009, http://www.mlive.com/news/grand-rapids/index.ssf/2009/02/hoekstras_twitter_flap_prompts.html.
33
   The Associated Press, What a Twit! Twitter-using Juror May Cause $12.6 Million Mistrial, New York Daily
News, March 13, 2009, http://www.nydailynews.com/news/us_world/2009/03/13/2009-03-
13_what_a_twit_twitterusing_juror_may_cause.html.

34
   Helen A.S. Popkin, Twitter gets you fired in 140 characters or less, March 23, 2009,
http://www.msnbc.msn.com/id/29796962/.


                                                         8
                                          Privacy and Defamation

        Twitter also raises privacy and defamation issues. If Twitter users have an apparent

relationship with a company or product where such a relationship does not exist in reality or

where a company profile might tweet to dilute a trademarked name, then there may be action for

trademark violations.35 In order to resolve such issues, rules of engagement must continue to be

created regularly. Twitter is part of a new frontier where the rules of engagement are not clearly

laid out and are still evolving.36 One rule of engagement, according to Twitter user

@danmartell, is a suggestion not to follow “anyone who doesn’t have a URL associated with

their Twitter profile” in order to guarantee legitimacy.37 A simple cease-and-desist order to

someone misrepresenting a person or company appears to be sufficient.38 In regards to watering

down a trademarked name, companies would be better served by bringing those who are talking

about them into the fold than trying to silence them. 39 Questions of usage and etiquette will

work themselves out as the medium evolves, said Chris Sacca, one of the original investors in

Twitter.40

        Some examples of etiquette guidelines include the following. First, one should

strategically follow and un-follow People. One should follow users based on common interest,

trust, and potential for learning from that user.41 Second, a user should be up-front about his or

her Twitter aspirations. The user must indicate what his or her focus is and tweet on topics

35
   AndaPR, Twitter in and about the workplace can bring trouble, December 24, 2008,
http://andapr.wordpress.com/2008/12/24/twitter-in-and-about-the-workplace-can-bring-trouble/.
36
   Id.
37
   Id.
38
   Id.
39
   Id.
40
   Frank Davies, Congress and Twitter: Representatives Run With New Technology, CHICAGO TRIBUNE, April 9,
2009, http://www.chicagotribune.com/business/chi-tc-biz-thu-twitter-congress-apr09,0,4270600.story.

41
   C.G. Lynch, Twitter Etiquette: Five Dos and Don'ts, CIO, February 10, 2009,
http://www.cio.com/article/480318/Twitter_Etiquette_Five_Dos_and_Don_ts_.


                                                        9
primarily in accordance with those aspirations.42 That is not to say that the user should not tweet

about topics beyond the focus. Third, a user should be personal (to a point). Twitter has the

potential to humanize you or your company in the eyes of another user, but users should exercise

caution in tweeting messages or content that may be considered to be too personal. 43 Fourth, a

user should reciprocate gracefully.44 This means that users should be honest and willing to share

ideas and information. Fifth, a user should use the Direct Message correctly. It is intended to

convey a private message or to facilitate one-on-one conversations. Direct Messages are not

intended to be publicized or to spam users with product pitches.45



                                       Use of tweets in hiring/firing

        Once a user has built trust, a user will be more willing to share more intimate details

about his or her day-to-day life, such as what he or she eating at the moment or the random sign

he or she saw on the street. Other intimate details may include what a user thinks of his or her

employer (as in “I hate him”).46 This willingness to share intimate details raises some questions.

Will potential future employers see this user as having a negative attitude about the work? Is it

fair to use these intimate details in the hiring or firing process?47 When a user is willing to share

details, the user is likely to be tweeting frequently.

        Tweets could be fodder for opposing campaigns to use against a politician in an

upcoming election. One moment may be used repeatedly (“viral”) against an incumbent


42
   Id.
43
   Id.
44
   Id.
45
   Id.
46
   Josh Camson, What Career Service Office Advisors Should be Telling Students About Social Media [Part 2/2],
Social Media Law Student, February 9, 2009, http://socialmedialawstudent.com/twitter/what-career-service-office-
advisors-should-be-telling-law-students-about-social-media-part-22/.
47
   Id.


                                                       10
Congressman/Senator.48 For example, former Senator George Allen (R-VA) made an off-hand

racist remark (“Macaca”) to his opponent’s cameraman, who was of Indian descent.49 His

remark was recorded and posted to YouTube, where it could be played repeatedly.50 This

incident largely contributed to his narrow defeat to Democrat Jim Webb.51 Even an instant

Tweet or off-hand remark may be damaging to the point that it is too late to control the damage

and can lead to the loss of one’s job.



                                            “Un-Productivity”

        Twitter will post a time stamp for each tweet indicating when a user tweeted and how

often the user tweets. Potential future employers may see this as a sign of an unproductive

employee and that the employee has nothing better to do with his/her time.52 This raises the

question: May employers use a job applicant’s tweets to assess that applicant’s work ethic?

        In a prominent example of un-productivity, lawmakers were Tweeting via their

Blackberry devices or Cell Phones during President Barack Obama’s first Address to Congress. 53

This indicates that they weren’t fully paying attention to President Obama’s speech. 54 One

lawmaker who was criticized for tweeting during the address was Senator Claire McCaskill (D-




48
   More Than Fine, The Top 5 Viral Videos That Changed Someone's Life (For the Worse),
http://nomorequo.blogspot.com/2007/04/top-5-viral-videos-that-changed.html (last visited May 14, 2009).
49
   Tim Craig & Michael D. Shear, Allen Quip Provokes Outrage, Apology, The Washington Post, August 15, 2006,
http://www.washingtonpost.com/wp-dyn/content/article/2006/08/14/AR2006081400589.html.
50
   More Than Fine, The Top 5 Viral Videos That Changed Someone's Life (For the Worse),
http://nomorequo.blogspot.com/2007/04/top-5-viral-videos-that-changed.html (last visited May 14, 2009).
51
   Id.
52
   Molly McDonough, Think of Twitter as ‘Megatexting,’ But Proceed With Caution, ABA Journal, April 8, 2009,
http://www.abajournal.com/news/think_of_twitter_as_megatexting_but_proceed_with_caution/.
53
   Malia Rulon Gannett, Lawmakers part of social craze, Great Falls Tribune, March 30, 2009,
http://www.greatfallstribune.com/article/20090330/NEWS01/90330010.
54
   Id.


                                                     11
MO).55 Some Congressional Tweets went out during applauses. These Tweets were likely

intended to give readers a live look at a perspective on an event from someone who is there in

the House Chamber. It is understandable to share a unique perspective to everyone else who

isn’t there, much like live-blogging history as it is unfolding. However, Tweeting while at a

speech may indicate that one doesn’t care about what the President says or is too busy to pay

attention to some critical issues. Lawmakers look impolite for tweeting during the President’s

address.56

        One possible solution to alleviating un-productivity is to allow short breaks during the

day when employees can use the Internet. A new study claims that employees are more

productive when they can take short breaks during the day to surf the internet. Allowing this

rather than restricting use can lead to higher employee morale.57



                                      Medical and Personnel Records

        Surgeons tweeted so the whole world could see how a certain surgery works in real

time.58 This starts to encroach on the issues of waivers under the Health Insurance Portability and

Accountability Act (HIPPA) as well as patient privacy. Moreover, this raises the question of

whether doctors should be sharing medical processes or potentially someone’s medical




55
   Id.
56
   Frank Davies, Congress and Twitter: Representatives Run With New Technology, CHICAGO TRIBUNE, April 9,
2009, http://www.chicagotribune.com/business/chi-tc-biz-thu-twitter-congress-apr09,0,4270600.story.
57
   Lisa Hoover, Finally, an official excuse to use Twitter at work, ComputerWorld, April 3, 2009,
http://blogs.computerworld.com/finally_an_official_excuse_to_use_twitter_at_work.
58
   Health Care Law Blog, The Implications for Live Tweeting Surgery,
http://healthcarebloglaw.blogspot.com/2008/11/implications-for-live-tweeting-surgery.html (last visited May 14,
2009).


                                                        12
information in this fashion, even with a HIPPA waiver?59 May these tweets be discoverable as

evidence in litigation? Would Twitter face subpoenas for tweets to be used as evidence?60



                                     Celebrities with Ghost Writers

        Celebrities such as Barack Obama have Twitter profiles.61 This allows them to

communicate with their fans and supporters without involving the media.62 However, many

celebrities, including Obama, use Ghost Writers to tweet to followers.63 We feel like we share a

connection with the celebrity when they communicate their thoughts via Twitter in near-real

time.64 If I felt like I was actually seeing and communicating with the celebrity, and then

realized that the celebrity’s spokesperson is the one who updates the profile, not the celebrity

himself/herself, then I might feel disappointed.



                  Fake Profiles: The Potential for Identity Theft and/or Defamation

        Because of the trust engendered with users, users might be apt to believe any information

tweeted from fake profiles.65 People might trust these fake profiles of companies and/or

company employees as sources of information. The fake profile might leak out secrets (whether

true or false), defamatory information, or false information, etc. Followers might believe

whatever is posted by the fake profile. It is possible for the real company or person to contact


59
   Id.
60
   Id.
61
   Andrew Johnson and Ian Griggs, Love's Online Spat Sparks First Twitter Libel Suit, THE INDEPENDENT, March
29, 2009, http://www.independent.co.uk/news/media/online/loves-online-spat-sparks-first-twitter-libel-suit-
1656621.html.
62
   Id.
63
   Id.
64
   Id.
65
   AndaPR, Twitter in and about the workplace can bring trouble, December 24, 2008,
http://andapr.wordpress.com/2008/12/24/twitter-in-and-about-the-workplace-can-bring-trouble/.


                                                     13
Twitter to shut down fake profiles.66 However, such damage control might be too late. Other

users may be skeptical and may seek to trust but verify. In order to establish authenticity, users

should list the URL of their companies in their profile.67

        Examples of fake profiles are numerous. For example, someone impersonated the

Austin, Texas Police Department, which gained greater attention during a national conference

known as SXSW.68 Some tweets included indications of more speeding stops at SXSW as well

as police jargon based on gangsta rap lyrics rather than actual law enforcement.69 In another

impersonation profile, a Mexican-Korean food joint in Los Angeles has a fake profile in its name

that posts fake locations of the food truck, menu items, and specials.70 The Dalai Lama Profile

turned out not to be the Dalai Lama and was suspended, but later reinstated with a disclaimer that

this is just an unofficial Dalai Lama news feed.71




                           Issues Covered by both Character Limit and Trust



                           Wrongful Termination and Workplace Retaliation

        Twitter could be a catalyst for more workplace retaliation and wrongful termination

claims.72 Users may claim that they were retaliated against or fired because of protected

information they shared on Twitter, such as harassment they faced in the workplace or a safety

66
   Id.
67
   Id.
68
   Caroline McCarthy, Austin 911! Fake police Twitter account gets busted, CNET,
March 25, 2009, http://news.cnet.com/8301-13577_3-10204228-36.html.
69
   Id.
70
   Id.
71
   Id.
72
   AndaPR, Twitter in and about the workplace can bring trouble, December 24, 2008,
http://andapr.wordpress.com/2008/12/24/twitter-in-and-about-the-workplace-can-bring-trouble/.


                                                       14
violation.73 However, workplace retaliation and wrongful termination claims are difficult to

prove.74



                                  Is Twitter a relatively closed universe?

        Is there a reasonable expectation of privacy within a Twitter community? No. Is there a

reasonable expectation of privacy in the case of a restricted account? No. Say you have an

employee who Tweets to a closed group criticizing an employee for sleeping w/ the boss to get

ahead, and that employee responds to you, escalating into an all-out flame war. Does the

employer have an obligation to investigate in this case?

        In another example, an advertising agency announced mass layoffs via Twitter.75

Employees did not expect to hear about a firing first via Twitter. An employee would expect a

notice in writing or an early verbal note.76 This example illustrates how Twitter cannot always

be trusted without verification.

        The “Cisco Fatty” story illustrates how someone’s instant thought can be publicized.77

“Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the

daily commute to San Jose and hating the work.”78 The “Cisco Fatty” did not protect her profile,

and thus this tweet was laid out for the whole world to see.79 Someone claiming to be a Cisco

associate responded that her sentiment as reflected in the Tweet would be passed along to her




73
   Id.
74
   Id.
75
   First Recorded firing by Twitter!?!, Tribble Ad Agency, April 8, 2009, http://www.tribbleagency.com/?p=4705.
76
   Id.
77
   Helen A.S. Popkin, Getting the skinny on Twitter's 'Cisco Fatty', MSNBC, March 27, 2009,
http://www.msnbc.msn.com/id/29901380/.
78
   Id.
79
   Id.


                                                       15
hiring manager.80 This Tweet was taken out of context, according to the Cisco Fatty, because the

paycheck was for an internship she didn’t want and already turned down.81 Cisco does not

publicly comment on its employees, prospective or current, but they do post their philosophy

regarding social networking: Don’t post something unless you want it publicized and repeated

(viral) and you are prepared to defend yourself.82



                         How a Locker Room Tweet Can Get You in Trouble

        Charlie Villanueva is an NBA player for the Milwaukee Bucks. Villanueva is a fan of

UConn and tweeted during an NBA game about how he was bitter that Michigan State moved on

to the NCAA National Championship Game.83 He also bashed Michigan State as not deserving

to be there. This recalls the old adage of “keep your comments [and feelings] to yourself.”

        In a similar situation, Green Bay Packers linebacker Nick Barnett tweeted about the need

for more defensive linemen.84 Some might interpret his tweet as criticizing the coaches’

strategies or the players chosen to be defensive linemen.85 Barnett defended his comments by

saying that “we need more guys after losing some players in free agency.”86 Barnett claimed he

was not criticizing the players there, but was saying that all of them could get better and that

everyone knows that they need more players.87 Barnett likes to say whatever is on his mind.88


80
   Id.
81
   Id.
82
   With Social Media, Cisco is listening, participating…and learning, The Platform, March 24, 2009,
http://blogs.cisco.com/news/comments/with_social_media_cisco_is_listening_participating...and_learning/.
83
   Ryan Corazza, Twitter Overkill, ESPN, http://sports.espn.go.com/espnmag/story?id=4052899 (last visited May
14, 2009).
84
   Greg A. Bedard, Linebacker Chirps Up, Milwaukee Journal-Sentinel, April 1, 2009,
http://www.jsonline.com/sports/packers/42304202.html.
85
   Id.
86
   Id.
87
   Id.
88
   Id.


                                                      16
Tweeting could get an athlete or employee in trouble with coaches and/or superiors. Barnett’s

tweet could have been seen as being out of line.



                                       The First Twitter Libel Suit

        The beauty of Twitter is that users can upload their thoughts as and when they think of

them.89 This is a serious disadvantage for those of a belligerent disposition.90 Courtney Love’s

angry tweets have landed her in court.91 Love’s former fashion designer, Dawn Simorangkir,

lodged a libel claim against Love in Los Angeles Superior Court in March 2009.92 Simorangkir,

who lives in Austin, Texas, claims Love tweeted the following. Love accused her of being a

“nasty, lying, hosebag thief”; having “a history of dealing cocaine”; having “lost all custody of

her child”; and, being guilty of “assault and burglary.” Love also says designer would be

“hunted til your [sic] dead.”93 Love then allegedly posted on a fashion site where Ms.

Simorangkir sells her clothes: “The nastiest lying worst person I have ever known ... evil

incarnate, vile horrible lying bitch.”94 Simorangkir seeks punitive damages, citing that Love’s

comments have destroyed her reputation and her business.95 The court papers state the

following: “Whether caused by drug-induced psychosis, a warped understanding of reality, or

the belief that money and fame allow her to disregard the law, Love has embarked on what is

nothing short of an obsessive and delusional crusade to destroy Simorangkir’s reputation and her



89
   Andrew Johnson and Ian Griggs, Love's Online Spat Sparks First Twitter Libel Suit, THE INDEPENDENT, March
29, 2009, http://www.independent.co.uk/news/media/online/loves-online-spat-sparks-first-twitter-libel-suit-
1656621.html.
90
   Id.
91
   Id.
92
   Id.
93
   Id.
94
   Id.
95
   Id.


                                                     17
livelihood.”96 The court papers also indicate Love was furious that Ms Simorangkir stopped

working for her after Love failed to pay her bill; this led to “an intense level of animosity ... well

beyond what any reasonable person would consider acceptable behaviour.”97 This incident

illustrates the need for us to have good relations with our colleagues, lest they libel us via Twitter

or Facebook or anywhere else on the web.98



                           How do we proceed given existing legal doctrines?

        Should employers place restrictions on the usage of Twitter? How should Twitter be

regulated, if at all? Do employers have a right to monitor or even access your computer or

Twitter feed? Can employers require you to produce your personal Tweets? Can employers ask

Twitter to produce your Tweets? Giving employers the ability to access this information

diminishes the expectation of privacy.



                                           Private Twitter Accounts

        What if you keep your Twitter account private so that other users are required to request

to follow you? One scenario may involve the employer/HR personnel posing as a random

Twitter user interested in an applicant’s tweets. Could employers/HR personnel spy on

applicants in this fashion if applicants refuse to disclose their online accounts? This practice is

also known as ghosting.99 “Ghosting” involves NFL Teams becoming fans of potential draft




96
   Id.
97
   Id.
98
   Chris Matyszczyk, Courtney Love in 'hosebag thief' Twitter libel suit, CNET, March 30, 2009,
http://news.cnet.com/8301-17852_3-10207680-71.html.
99
   Charles Robinson, Social networking a potential trap for prospects, Yahoo! Sports, April 7, 2009,
http://sports.yahoo.com/nfl/news?slug=cr-socialnetowrking040709.


                                                        18
picks who have private/protected profiles.100 The NFL Team/Coach creates a ghost profile in

order to spy on potential draft picks and see whether they have any incriminating information or

photos.101 Once the draft is concluded, ghost profiles disappear.102 In recent years, it has not

been uncommon to see incriminating photos of some high-profile NFL players.103 Half of the

NFL’s starting quarterbacks have incriminating and embarrassing social photos and

information.104 A private college video of NFL players singing songs with offensive language

and derogatory lyrics about women was stolen and leaked on YouTube.105 They could explain

past behavior by saying that they were in college and we have moved on.106

           Users should be careful about what they say and do around people, and should be aware

of their audience(s). The NCAA and most major college programs lay out parameters for what

athletes can and cannot put on the internet.107 Some colleges have considered banning social

networks completely.108 Potential draft picks scrub their pages of any incriminating and/or

embarrassing information that could be used against them.109

           This recalls Hill v. Nat'l Collegiate Athletic Ass'n, where the privacy analysis is a balance

between privacy and the need to obtain information.110 How would waivers of privacy be

handled? Is there a zone of privacy in cyberspace that should not be violated? Examples include

your backpack and your car’s trunk. Twitter, like SMS Text Messages, has a 140-character



100
      Id.
101
      Id.
102
      Id.
103
      Id.
104
      Id.
105
      Id.
106
      Id.
107
      Id.
108
      Id.
109
      Id.
110
      Hill v. Nat'l Collegiate Athletic Ass'n, 865 P.2d 633 (Cal. 1994)


                                                            19
limit. Can Twitter be regulated like Text Messages because of these similarities, or should

Twitter be treated differently?

        Should employers follow the Pentagons lead in deciding how to regulate the use of

Twitter in the employment context after Rep. Pete Hoekstra’s live-tweeting from Iraq? Are

there reasonable steps that could be taken to protect private information? Should Twitter be

treated as something to be monitored by employers or should it be treated like a personal

voicemail system? Look at Quon v. Arch Wireless Operating Co., Inc., which involved a SWAT

officers use of a work pager to send personal and sexually explicit messages.111 The officer paid

for overages, which would prevent others from viewing his messages stored on the service

provider’s server.112 Should employers be allowed to request from a service provider the

electronic messages/transactions of the employee? The 9th Circuit said that employers may not

seek production of electronic messages stored on a service providers server.113 The Dissenting

opinion indicated that SWAT members should not have a reasonable expectation of privacy in

messages sent on pagers provided to officers for use in SWAT emergencies.114 The dissent also

indicated that the reasonableness of a special needs search does not require the least intrusive

means, which the 9th Circuit did and the Supreme Court and seven other Circuits did not.




111
    Quon v. Arch Wireless Operating Co. Inc., 554 F.3d 769, 771 (9th Cir. 2008)
112
    Id. at 770.
113
    Id. at 773.
114
    Id. at 774.


                                                       20
                Scenarios for Dealing with Protected Twitter Profiles and Tweets



   Scenario 1: Tweets should not be Discoverable for Use Against an Employee or Applicant

       Use of a spy to conduct reconnaissance work for a lawyer to dig up electronic data that

are clearly intended to be protected should probably be disallowed. Consideration of whether

reasonable steps were taken to preserve the privacy of private tweets in whether to allow the use

of private tweets may vary by jurisdiction. Some jurisdictions could bar the use of protected

tweets regardless of reasonable steps taken to protect those tweets. Others may allow the use of

protected tweets if reasonable steps were not taken to protect the data.



      Scenario 2: Tweets should be Discoverable Under Primarily Extreme Circumstances

       Is the search reasonable? Can a search be accomplished by the least invasive means?

What a search requires, why that search is required, and the least invasive means will likely need

to be analyzed on a case-by-case basis.



                Scenario 3: Tweets are Discoverable Under Most Circumstances

       As with Scenario 2, the reasonableness and least invasive means analyses would apply on

a case-by-case basis. Even if one intended to protect tweets, one cannot expect privacy, since

somebody could retweet what has already been posted even under a protected account. If

something is retweeted and leaked, that breaches privacy. If the user intended to protect his or

her profile, could a private tweet be considered inadmissible? Someone could retweet what has

already been posted. This recalls the “unringing a bell” analogy. Once something is posted, it

cannot be undone, leaving a record of what was posted.




                                                21
                Scenario 4: Tweets are Discoverable Under Virtually Any Circumstances

           Protected Twitter Profiles are not protected, since somebody could retweet what has

already been posted. There is effectively no privacy in this Scenario. However, others might

argue that the size of one’s social network may be a factor in determining whether a user could

expect a profile to be protected.115 In other words, the more users a person follows and/or is

connected to in a social network, the lower that person’s expectation of privacy will be.

However, this raises the question of what number of users is considered appropriate to argue that

someone’s profile and postings is no longer protected. Even if only a few people are in one’s

social network, they still have the potential to repost information for the whole world to see.

This also raises another question: Should private information released only to a few people

remain private, since the probability of sharing such information outside of those few people is

very low?116



                                   What should employees do at this point?

           Without much case law to guide people one way or another, employees and job

applicants should be highly vigilant about what they post and think twice before they post

something. If they have already posted something, then they should be prepared to defend their

post and to take the heat for posting it, whether a legal challenge comes their way.

Employees/Applicants can say, “I made choices in the past that I wouldn’t make now,” rather

than denying their cyberspace actions. (Social Media Best Practices for Law Schools [Part 2])

Anything posted online will be archived forever. If one wants to use Twitter for both personal

115
      Lior Jacob Strahilevitz, A Social Networks Theory of Privacy, 72 U. CHI. L. REV. 919, 974 (2005).
116
      Id. at 977.


                                                          22
and business purposes, then one must be very wise about the type of information being

displayed, says Dan Schawbel (@danschawbel), who authored the new book Me 2.0: Build a

Powerful Brand to Achieve Career Success. Either way, one’s updates are all crawled by Google

and can hurt one’s reputation if they negatively portray one’s brand.117 Thus, one cannot expect

tweets to be kept private.118 The “only safe way for a lawyer to operate is to assume there is [no

security].”119 Tweeting should be treated as publishing a story to the front page of a newspaper

or website for everyone to see.



                                                Conclusion

        I agree employers should be able to regulate employee technology usage with respect to

protecting trade secrets and private information. On the issues of privacy and defamation,

lawyers may consider tweets in the hiring and firing process if those tweets have been publicized

and are clearly unprotected. Tweets that are protected would probably fall under Scenario 2.

However, there is a potential for a slippery slope. If one were to define extreme circumstances,

exceptions might be made to fit this category, and protected Tweets would slide towards

Scenario 3.

        What if someone retweets something from a protected account? How can employers lay

down some ground rules in order to prevent incidents or mitigate any damage that results from

incidents? Employers can limit technology usage when entering rooms that contain private

information. Employers can also warn that any unprotected Twitter account profile is fair game


117
    C.G. Lynch, Twitter Tips: Safely Blend Personal and Professional, ComputerWorld, April 8, 2009,
http://www.computerworld.com/action/article.do?command=viewArticleBasic&taxonomyName=&articleId=91313
24&taxonomyId=&intsrc=kc_feat.
118
    Molly McDonough, Think of Twitter as ‘Megatexting,’ But Proceed With Caution, ABA Journal, April 8, 2009,
http://www.abajournal.com/news/think_of_twitter_as_megatexting_but_proceed_with_caution/.
119
    Id.


                                                     23
and to think before posting. Employers can set a policy of leaving technology behind and

checking it in. While some might argue that there might be important business calls, setting

aside one’s BlackBerry for a period of time may encourage you to focus only on your work and

be more productive. Employers can take advantage of programs that encourage employees to

avoid using technology at random times of the day and focus on work, such as AwayFind.com.

Employers can set aside certain break times to use Twitter and other technologies.120 Set policies

for social media usage and how to be careful. The NCAA and most major college programs lay

out parameters for what athletes can and cannot put on the Internet.121 Perhaps it would be

useful to show examples of what NOT to do. Some colleges have considered banning social

networks completely.

       A complete ban on social networks would possibly result in the following. Some people

might actually concentrate on their work rather than gossip about what happens on a social

networking site. Some people might rebel and access the social network on their mobile device.

Some might rebel against such a ban by misbehaving. Contrary to conventional wisdom -

created via horror stories of people getting fired for outlandish Facebook or Twitter messages -

sharing personal messages (intelligently) can be advantageous to your business.122 If many

people follow a user because of the user’s profession, then the user will want to populate his or

her Twitter stream with many business related messages.123 But a user shouldn’t be afraid to hit




120
    Lisa Hoover, Finally, an official excuse to use Twitter at work, ComputerWorld, April 3, 2009,
http://blogs.computerworld.com/finally_an_official_excuse_to_use_twitter_at_work.
121
    Charles Robinson, Social networking a potential trap for prospects, Yahoo! Sports, April 7, 2009,
http://sports.yahoo.com/nfl/news?slug=cr-socialnetowrking040709.
122
    C.G. Lynch, Twitter Tips: Safely Blend Personal and Professional, ComputerWorld, April 8, 2009,
http://www.computerworld.com/action/article.do?command=viewArticleBasic&taxonomyName=&articleId=91313
24&taxonomyId=&intsrc=kc_feat.
123
    Id.


                                                 24
on themes in that user’s business life that intersect with the personal.124 The dreaded too-much-

information tweet can be avoided by understanding the difference between personal tweets and

private information that shouldn’t be published anywhere.125 Avoid discussing fights with

significant others and talking about nitty-gritty details involving children.

          For many people who work at big scary companies, the decision to inject personal

information into their Twitter stream can be especially agonizing, especially if your Tweets

express opinions about business, politics and other hot-button issues.126 As a result, experts say

you can put a disclaimer in your Twitter profile, noting that the Twitter stream reflects your

opinions, not your employer’s. To be clear, you can still be up front that you work for that

company. The following is a sample of such: “This is a personal Twitter feed. The opinions

expressed here represent my own and not those of my employer. No warranties or other

guarantees will be offered as to the quality of the opinions or anything else offered here.”

          Until further rules of engagement have been developed, anybody who uses Twitter or any

other social network is strongly advised to think before tweeting. Users must consider whether

whatever they tweet will be misconstrued or taken out of context. If users tweet carelessly and

without regard for potential consequences, then those users can expect possible action taken

against them by an employer, prospective employer, employee, or even friend.




124
    Id.
125
    Id.
126
    Id.


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