Employees have two potential avenues of protection from employers monitoring their employees\u2019 social media activities.[4]<\/a> The first is a cause of action under a common law intrusion upon seclusion tort claim arguing that the employer intruded on the employee\u2019s private affairs.[5]<\/a> The plaintiff would have to prove that their employer (1) intentionally intruded on the employee\u2019s solitude, seclusion, or private affairs and (2) that the intrusion would be highly offensive to a reasonable person.[6]<\/a> Courts have held that if a person posts something on the internet without restricting access to the post, the individual does not have a claim to privacy for that post.[7]<\/a> However, if an individual takes steps to control who can access their Facebook posts, then a court may find that the person had a reasonable expectation of privacy for their Facebook post.[8]<\/a> Still, some states do not recognize a common law intrusion on seclusion cause of action but have a privacy statute.[9]<\/a> For example, the Massachusetts Privacy Act creates a right against a serious interference of their privacy which primarily protects the dissemination of private information.[10]<\/a> Additionally, some states like Virginia do not recognize an intrusion of seclusion tort claim.[11]<\/a> Therefore, employees in Virginia would need to find protection for their private social media posts from another source.<\/p>\n The second potential source of protection for an employee\u2019s private social media post is under the Stored Communications Act (SCA).[12]<\/a> The SCA protects a person\u2019s stored communications, such as a person\u2019s email.[13]<\/a> While a criminal statute, the SCA does create a civil cause of action.[14]<\/a> The plaintiff would need to show that the defendant \u00a0“(1) intentionally accesses (2) a facility through which an electronic communication service is provided (3) without authorization or by exceed[ing] an authorization given and (4) thereby obtains . . . a wire or electronic communication (5) while that wire or electronic communication is in electronic storage.”[15]<\/a> However, the SCA does not protect electronic communication that is \u201creadily accessible to the general public.\u201d[16]<\/a> So, the plaintiff would need to show that their social media post was not accessible to the general public.[17]<\/a><\/p>\n Courts have held that posts made on private Facebook accounts, private online bulletin boards, and private websites may be protected under the SCA.[18]<\/a> This is because the owners of the private sites took steps to control and limit access to their sites, which would make the information not readily accessible to the public.[19]<\/a> However, courts are not likely to find SCA protections for posts made on private Facebook groups because the initial poster does not have control over who can be a member of the group and see their post.[20]<\/a> Thus, the poster’s lack of control made the post \u201creadily accessible to the public.\u201d[21]<\/a><\/p>\n If an employer accesses an employee\u2019s private social media post, the next step is determining whether the employer has authorization to access the employee\u2019s post.[22]<\/a> Courts have held that the employer violated the SCA if an employer did not have authorization to private posts and manages to access the private communication.[23]<\/a> For example, in Pietrylo v. Hillstone<\/em>, a group of employees created a private MySpace group to vent their problems with restaurant management.[24]<\/a> A member of the MySpace group felt coerced by management to provide their MySpace login information so the management could access the employee group.[25]<\/a> The court held that the coercion from the management did not have authorization to access the MySpace group.[26]<\/a> Several state legislatures have passed statutes prohibiting employers from requiring their employees to provide their social media usernames and passwords.[27]<\/a> However, these statutes do not prohibit employers from accessing social media posts that are publicly accessible.<\/p>\n In Ehling<\/em>, the court stated that \u201c[p]rivacy in social networking is an emerging but underdeveloped area of case law.\u201d[28]<\/a> As social media continues to be a constant part of our day-to-day life, courts must ensure that the law and protections do not fall too behind technology.<\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n [1]<\/a> Stephanie Smith, 11 Photos you should never post on social media<\/em>, Business Insider (May 1, 2018, 5:24 PM), https:\/\/www.businessinsider.com\/photos-you-should-never-ever-post-on-social-media-2018-5.<\/p>\n [2]<\/a> Press Release, Meta, Reports Third Quarter 2022 Results (Oct. 26, 2022), https:\/\/investor.fb.com\/investor-news\/press-release-details\/2022\/Meta-Reports-Third-Quarter-2022-Results\/default.aspx; Instagram Statistics and Trends<\/em>, DataReportal, (Aug. 15, 2022), https:\/\/datareportal.com\/essential-instagram-stats; Twitter Statistics and <\/em>Trends, DataReportal, (Aug. 15, 2022), https:\/\/datareportal.com\/essential-twitter-stats.<\/p>\n [3]<\/a> 8 Reasons to Keep your Social Media Set to Private<\/em>, Eset (Jun. 16, 2022), https:\/\/www.eset.com\/uk\/about\/newsroom\/blog\/8-reasons-to-keep-your-social-media-set-to-private\/.<\/p>\n [4]<\/a> Marion G. Crain et al., Work Law: Cases and Materials, 407\u00ad\u201409 (4th ed. 2020).<\/p>\n [5]<\/a> See<\/em> Ehling v. Monmouth-Ocean Hosp. Serv. Corp., 872 F. Supp. 2d 369, 373 (D. N.J. 2012).<\/p>\n [6]<\/a> Restatement (Second) of Torts \u00a7 652B (Am. L. Inst. 1977).<\/p>\n [7]<\/a> Ehling<\/em>, 872 F. Supp. 2d at 373.<\/p>\n [8]<\/a> Id.<\/em> at 374.<\/p>\n [9]<\/a> Portnoy v. Insider, Inc., No. 22-10197-FDS, 2022 U.S. Dist. LEXIS 2020080, at *26 (D. Mass. 2022).<\/p>\n [10]<\/a> Mass. Ann. Laws Ch. 214, \u00a7 1B (LexisNexis 2022).<\/p>\n [11]<\/a> Cockrum v. Donald J. Trump for President, Inc., 365 F. Supp. 3d 652, 670 (E.D V.A. 2019).<\/p>\n [12]<\/a> Marion G. Crain et al., Work Law: Cases and Materials, 407\u00ad\u201409 (4th ed. 2020).<\/p>\n [13]<\/a> 18 U.S.C. \u00a7 2701.<\/p>\n [14]<\/a> 18 U.S.C. \u00a7 2707.<\/p>\n [15]<\/a> Backhaut v. Apple, <\/em>Inc., 74 F. Supp. 3d 1033, 1041 (N.D. Cal. 2014).<\/p>\n [16]<\/a> 18 U.S.C. \u00a7 2511(2)(g).<\/p>\n [17]<\/a> See<\/em> Davis v. HDR Inc., No. CV-21-01903, 2022 U.S. Dist. LEXIS 102949, at *10 (D. Ariz. 2022).<\/p>\n [18]<\/a> Id.<\/em><\/p>\n [19]<\/a> See<\/em> id.<\/em> at *11.<\/p>\n [20]<\/a> Id.<\/em> at *22\u201423.<\/p>\n [21]<\/a> Id.<\/em> at *11.<\/p>\n [22]<\/a> Pietrylo v. Hillstone Rest. Group, No. 06-5754, 2009 U.S. Dist. LEXIS 88702, at *7 (D. N.J. 2009).<\/p>\n [23]<\/a> Pietrylo<\/em>, 2009 U.S. Dist. LEXIS 88702, at *8.<\/p>\n [24]<\/a> Pietrylo v. Hillstone Rest. Group, No. 06-5754, 2008 U.S. Dist. LEXIS 108834, at *1\u20142 (D. N.J. 2008).<\/p>\n [25]<\/a> Pietrylo<\/em>, 2009 U.S. Dist. LEXIS 88702, at *8\u20149.<\/p>\n [26]<\/a> Id.<\/em> at *9.<\/p>\n
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