Employers Beware: ‘Cyber Snooping’ An Employee’s Private MySpace Account May Not Fit The Bill

Employers Beware: ‘Cyber Snooping’ An Employee’s Private MySpace Account May Not Fit The Bill

Personal items. Patient health information. The lockbox. The bedroom. Password protected online content?

People generally associate these things with a sense of privacy. They seem secure in the sense that others need permission to view or handle the information contained within. At the very least, one does not expect that his or her boss would be able to stumble upon this kind of information through a simple search on Google. But with the increasing number of employees who are terminated because of their online social networking profiles, how far is an employer’s reach into an employee’s personal information? Brian Pietrylo’s lawsuit against Houston’s Restaurant, which is scheduled for trial next month in New Jersey, may bring some clarity to the issue as it relates to online social networks.

Pietrylo worked as a restaurant server for Houston’s Restaurant. During his personal time, Pietrylo maintained a MySpace account wherein he created a private message forum, the purpose of which was to “talk about all the crap/drama/and gossip occurring in our workplace, without having to worry about outside eyes prying in.” Access to the forum was designed to be by “invitation only,” and once users were invited, they had permanent password-protected access to the forums. One such privileged user was a Houston’s coworker, who, either voluntarily or through coercion, gave her login information to senior managers at Houston’s who later accessed the forum.

Needless to say, the forum’s conversations regarding sexual and criminal acts and fantasies pertaining to coworkers and customers were not well received by Houston’s upper management. The result was the termination of Pietrylo and another Houston’s employee involved in the online banter.

A key issue in the case is whether Houston’s management properly obtained the password needed to access the forum. This case thus represents an important precedent in the realm of employee privacy

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rights in the context of password-protected online content. Content found on blogs and public social networking profiles may still enjoy the benefit of protected privacy when restrictions on access are implemented. Furthermore, the court has the chance to establish whether such privacy is granted to anyone using the invited username or avatar (“ItalianStallion732”), or implicitly granted only to the registered owner of that identity (“John GuiDoe”). Finally, employers should exercise caution when approaching employees about asking for access to private information. As a rule of thumb, don’t coerce the employee for information and always document your (non-coercive) requests.

By following these simple rules, employers can avoid costly litigation when the validity of their methods of obtaining such information is called into question.

UPDATE: Employer’s “Cyber-Snooping” on MySpace Results in Verdict in Ex-employee’s Favor

Comments (1):

  1. To deter employers from viewing social networking pages, employees might post on their pages explicity legal terms of service under which employers agree to scram. This idea should not be taken as legal advice for any particular situation, just a topic for public discussion. Details: http://hack-igations.blogspot.com/2007/11/privacy-advocates-such-as-nyu-professor.html –Ben

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