Archive for the ‘Stored Communications Act’ Category

I have previously posted on the topic of employees getting into trouble for things they post on their Facebook, LinkedIn and other social networking sites.  In some cases they have been sued or fired based upon whats on their site.  Seems to me though there is a very simple solution to this problem, make your settings private on your Facebook and other sites and don’t invite your boss to be your friend if you are gonna say bad things about him/her or your job.

By  keeping your information on these sites private, if the employer accesses this information in a underhanded fashion or though a co-worker, the employer is violating in most cases state privacy laws as well as the Federal Stored Communications Act, which prohibits employers from accessing, without the employee’s consent, an employee’s secure website bulletin board or private chat room to search for posts critical of the employer, union or customers.  The Stored Communications Act, 18 U.S.C. § 2701 et seq., (the “SCA”) regulates when an electronic communication service (“ECS”) provider may release the contents of or other information about a customer’s emails and other electronic communications to private parties. Congress passed the SCA to prohibit a provider of an electronic communication service “from knowingly divulging the contents of any communication while in electronic storage by that service to any person other then the addressee or intended recipient.”

Under 18 U.S.C. § 2701 , an offense is committed by anyone who: “(1) intentionally accesses without authorization a facility through which an electronic communication service is provided;” or “(2) intentionally exceeds an authorization to access that facility; and thereby obtains…[an] electronic communication while it is in electronic storage in such system.” 18 U.S.C. § 2701(a)(1)-(2). However, it does not apply to an “electronic communication [that] is readily accessible to the general public.” 18 U.S.C. § 2511(2)(g).

Court have generally held Facebook, MySpace and other social networking sites to be subject to the SCA where the user has designated their information as private.  So keep your information private, don’t invite your employer to review the information and at least your back will be covered in the event your employer surreptitiously gains access to the information.  One exception would be if you consented to your employer’s access to such information so be on the look out for your employer trying to get you to sign a document that would allow it to access your private online information.

If your employer improperly accesses your private information, consult with an attorney about your possible options.