Case Against NJ Woman Charged With Identity Theft Via Facebook Will Go Forward

After setting up a fake Facebook profile for her ex, Dana Thornton finds herself fighting a fourth-degree identity theft charge in New Jersey courts. 

She's accused of impersonating her ex-boyfriend, and making personal statements she attributed to him -- reportedly saying he was "high all the time," had herpes, and liked prostitutes. 

The New Jersey Code of Criminal Justice defines the offense of impersonation/identity theft to include "impersonat[ing] another or assuming a false identity and do[ing] an act in such assumed character or false identity . . . to injure or defraud another." Thornton tried to get the case dismissed because the statute makes no mention of electronic communications.  The judge didn't buy the argument, and on Wednesday, ruled the case will go forward.

In my opinion, this court reached the right decision.  The statute unambiguously says that assuming a false identity to injure another person is against the law -- it shouldn't matter what tools are used in the process.

Interestingly, a bill was proposed in the NJ legislature last year that (if passed) would clarify that criminal impersonation using electronic means or the internet is covered by the law.  As I told the Associated Press, amending this particular statute could complicate future prosecutions.  For example, if the legislature amends the identity theft statute to specifically say it covers online conduct, would a court later assume the state’s harassment statute isn’t meant to encompass online communications because it hasn’t been amended to specifically say so?  If this statute is revised to specifically reference online conduct, should the legislature try to amend all other laws that could be implicated in the context of online communications? 

See All Friends & Pages In Your Facebook News Feed -- For Real This Time

OK, so this post may not appear all that law-related . . . but I’ve received the same Facebook-related question from a couple different lawyer friends, so that’s enough for me to assume this is worth sharing!

You may or may not have noticed that not all your Facebook friends show up in your Facebook News Feed. Facebook’s default setting is to publish items from friends and pages you’ve recently interacted with. No one’s quite sure what that means exactly. Presumably, it has something to do with whether you’ve liked someone’s status, posted on someone’s wall, and so on – but it’s not clear what degree of interaction is required. There’s been a Facebook status floating around for quite a while about how to correct this, suggesting users address the issue through their account settings and asking users to copy and paste the setting to spread the word. I, too, copied and pasted this advice because common sense says it should have worked. But alas. Common sense has no place in the world of Facebook. A couple lawyer friends pointed out that this change in account settings didn’t appear to be working. The next time they’d log in, the settings went back to the “recently interacted” instead of “all.” So, I did a little investigating. Turns out, there’s a better way to make this change (at least until Facebook makes its next surreptitious change to our default privacy settings), by editing your News Feed settings specifically. So, if you’d like to see news from all your friends and pages, try this:

Go to your News Feed and click on “Most Recent” at the top of that page. You should see a little drop down box option; select “Edit Options” at the bottom of that drop-down list.

The default says it is showing posts from “Friends and pages you interact with the most.” Change that to “All of your friends and pages.”

I made the change and it made a huge difference in my News Feed!

Missouri Law Bans Certain Teacher/Student Online Communications

Missouri has just passed a law prohibiting certain online communications between teachers and students.  The Amy Hestir Student Protection Action more broadly aims to protect students from sexual abuse, but the controversial provision in the law reaching student and teacher social media usage and online activity is section 162.069, which provides:

By January 1, 2012, every school district must develop a written policy concerning teacher-student communication and employee-student communications. Each policy must include appropriate oral and nonverbal personal communication, which may be combined with sexual harassment policies, and appropriate use of electronic media as described in the act, including social networking sites. Teachers cannot establish, maintain, or use a work-related website unless it is available to school administrators and the child's legal custodian, physical custodian, or legal guardian. Teachers also cannot have a nonwork-related website that allows exclusive access with a current or former student. Former student is defined as any person who was at one time a student at the school at which the teacher is employed and who is eighteen years of age or less and who has not graduated.

Although it's been coined the "Facebook law," it reaches other online communication tools, as well.  And it doesn't necessarily ban all contact between students and teachers online -- just communications on a "website that allows exclusive access with a current or former student."  The law doesn't define what this is, but it presumably aims to prevent private, direct communications between student and teacher.  This would also seem to prevent a teacher with a private Facebook profile from "friending" a student on Facebook.  (Or would it?  If the only communication between a teacher and student occurred on a publicly visible "wall"?)  A number of analysts have suggested teachers who want to communicate with students on Facebook should create public Facebook fan pages, which students can "like."  This way, students and teachers can communicate on its wall, allowing their exchanges to be publicly visable.  (But this wouldn't take away the ability to send a private message -- that capability is available on Facebook by default, whether you're friends with the person you want to message or not.)

Sure, it may be a decent policy for teachers not to Facebook friend students.  But requiring it by law (a relatively ambiguous law, no less) sets the stage for some likely problems.  Although well intended, the law sure seems to leave open a lot of questions.  What exactly is "exclusive access"?  Does this law go too far?  Does it infringe on students' or teachers' free speech or freedom of association rights?  Does this prohibit communication with students the teacher actually teaches or taught?  Or all students within the district?  What about retired teachers?  Retired teachers who still substitute teach in the school district?  Doesn't this law go much further than necessary to stop improper sexual conduct between student and teacher?  If teachers aren't sure what it means, won't it chill their speech?  The law discusses communications on "websites" -- so it wouldn't reach text messages, or phone calls for that matter.

The law goes into effect later this month, but gives school districts until January 1 of 2012 to implement their new policies.

NLRB Continues Aggressive Response to Employers' Social Media Policies It Deems Overbroad

The National Labor Relations Board recently issued two more complaints against employers that fired employees in response to the employees’ Facebook posts.

On May 9, the NLRB lodged a complaint against a non-profit organization in New York, saying it improperly fired five employees for Facebook posts that amounted to protected concerted activity. According to the press release, an employee posted on her own Facebook wall an allegation by a coworker that employees weren’t doing enough for clients. A group of employees responded to the Facebook post, defending their job performance and complaining about their working conditions (including work load and staffing issues). The employer fired the five employees who participated in the online discussion, saying the remarks amounted to harassment of the employee mentioned in the original post. The NLRB’s complaint claims the Facebook discussion was protected under the National Labor Relations Act because it involved a conversation among coworkers about the terms and conditions of employment, including their job performance and staffing levels.

The NLRB also issued a complaint last month against a Chicago BMW dealership that terminated the employment of a car salesman who posted pictures and commentary on his Facebook page criticizing a promotional event hosted by the dealership. (It sounds like he thought serving customers hot dogs and bottled water was a little lame and might negatively affect sales commissions.) The employee removed the posts immediately after management asked him to, but shortly thereafter, the car dealership still fired him. The NLRB alleges that this employee’s use of social media was also protected under the National Labor Relations Act. The dealership came forward to say the salesman was fired reasons other than his Facebook posts.

The NLRB has been increasingly involved in these Facebook firing cases. You may recall the NLRB complaint filed late last year charging a Connecticut employer with unfair labor practices when it discharged an employee who complained about her supervisor on Facebook. That case settled earlier this year.

These aren’t the only cases out there, and it seems the NLRB intends to keep a keen eye on social media issues. Employers should be careful when disciplining employees for their social media or online activities -- and should also ensure their social media policies or practices aren’t overbroad.

Check Out A Few of Erickson's Posts for IowaBiz on Technology, Internet, & Law

For those of you who may be interested, I thought I'd share a few posts I've written recently for IowaBiz, the official blog for the Des Moines Business Record, that touch upon technology, the internet, and the law:   

• May 31, 2011 post on a bill signed by Iowa's Governor that authorizes a study on online gaming.

• May 13, 2011 post discussing how employers may respond to the fairly common practice of employees including information about their workplace on Facebook or other social networking profiles. 

• April 13, 2011 post discussing the largely symbolic vote in the House to repeal the FCC's net neutrality rules (the measure isn't expected to pass the Senate).

• March 29, 2011 post discussing the importance of early planning stages in a company's creation of or updates to social media or social networking personnel policies.

Coming Up in NYC: ABA National Symposium on Technology in Labor and Employment Law

Attention attorneys!  The ABA National Symposium on Technology in Labor and Employment Law will be held April 27-29 at the New York University School of Law in New York, New York.  The event is presented by the Technology in the Practice and Workplace Committee and co-sponsored by the NYU Law School's Center for Labor and Employment Law.  The meeting kicks off with a welcome reception on Wednesday, April 27 from 6:30p-8:30p.  General sessions will be held Thursday, April 28 and Friday, April 29.

See the committee's announcement for more details.  And if you're a lawyer who plans to attend, leave a comment!

Update, Update, Update Your Document Retention Policies!

With the increased online activity in business, companies should take time to review and update document retention policies sooner rather than later. Many companies probably already have policies addressing email systems, but these may need refreshing. Because more and more companies have become active on social media sites like Facebook and Twitter, it’s also wise to review or update document retention polices to ensure the scope will cover such social media activity. To the extent you have different policies addressing different technologies or communications, businesses should ensure they’re consistent. (Companies may want to avoid multiple policies if it’s possible to draft one that’s broad and flexible enough to capture all electronic communications.)

Keep in mind any special obligations that might exist for your particular business or industry. Federal and/or state regulations may impose special recordkeeping obligations or considerations. For example, and as I’ve mentioned before, the U.S. securities regulator, FINRA, has regulatory guidance regarding certain record-keeping obligations brokerage firm’s business-related communications online (including on social media sites and blogs).

Companies may struggle with apparent tensions that arise between obligations to preserve relevant communications versus associated privacy concerns.  (For example, privacy issues may arise when a company attempts to collect or store communications by employees or customers.)  Businesses would be wise to seek legal counsel in navigating these waters.

Remember online communications may become relevant in litigation – and companies have an obligation to preserve all relevant communications, documents, and information if litigation is pending or reasonably anticipated. A company that fails to properly preserve relevant information can face hefty sanctions by the court.

Connecticut Employer Settles Facebook Firing Case With NLRB

Yikes. My apologies for the massive delay since my last couple posts. Speaking of my last couple posts . . . remember that time American Medical Response of Connecticut fired an employee after she complained about her boss on Facebook? Shortly after the termination, the NLRB’s Hartford regional office issued a complaint against AMR, alleging the firing violated federal labor law. According to the complaint, the employee’s online comments constituted protected activity.  The complaint also alleged that the company's policies addressing online communications were overly broad.  Yesterday, the NLRB announced the case has been settled.  (Fun fact:  not only did the NLRB issue a press release, it also tweeted the update!)

twitter.com/nlrb

To review a few considerations employers may want to take into account, you may want to revisit my blog post, "Social Media Policies for Employers:  A Few Notes on the NLRA."