by Fred Abramson on May 10, 2010
You probably spend much of your time at work in front of a computer. When you are on the run, you use your Blackberry or iPhone for both work and pleasure. But who owns the data that is created, viewed and stored while working?
If you work in New York for a private company, you have a reasonable expectation of privacy for your electronic devices, work computers and cellphones. This is especially the case when the company that you work for does not have a policy regarding internet usage. As a result, I have been advising companies to cover their bases by clearly and specifically drafting internet usage policies that explains their employees expectation of privacy.
Restrictive internet usage policies usually include the following:
- All the data that is stored on work computers is company property;
- Employee’s have no expectation of privacy;
- The Employer may monitor its employees computer usage without their knowledge.
The law regarding restrictive internet usage policies have been looked at with increasing scrutiny by the courts. For example, a recent court ruling did not allow an employer to access the Hotmail account of its employee.
Despite a written internet usage policy, employers are not immune from potential lawsuits from employees. Listed below are restrictions that employers should be aware of:
- PRIVILEGED DISCUSSIONS. Discussions regarding attorney-client communications may continue to be privileged. If an employee is using the internet for legally permitted employee, like union organizing her communications may be privileged.
- DISCRIMINATION. Be aware that you cannot treat your employees differently while monitoring their computer usage.
- ACCESSING PRIVATE ACCOUNTS. You cannot access your employee’s Twitter account simply because they accessed their account at work.
- NEW YORK STATE LAW. Believe it or not, New York State does not have an invasion of privacy law. Be aware that you cannot fire an employee simply because she tweets.
Be aware that case law is changing on this subject. As a word of caution, use your common sense and think about the golden rule.
For more reading: Who Owns all the data in the Workplace
If you have any questions about who owns your data at work, contact me at the Law Office of Frederic R. Abramson at 212-233-0666.
What privacy rights do you have on social networks? Nearly everyday, civil litigators like myself and law enforcement officials request information from Facebook regarding user information. Understandably, Facebook has been very difficult in responding to such requests, believing that users have a right to privacy concerning its users information. But how much right should users of social networks have over information that is of public record?
Many social networking sites have taken the position that they will not respond to requests for information without a subpoena. This is a problem because users cannot obtain access to their accounts even if their account has been hacked.
This is especially problematic when it comes to the problem of cyber bullying. I have been trying to obtain records from Facebook for a client whose child whose account has been hacked by a cyber bully. Facebook has been unwilling to provide information to me about my clients own account.
According to Law.com, the Deputy General Counsel of Facebook, Mark Howitson told lawyers at the Legal Tech Conference in New York today that they are ready to fight requests for user information without a subpoena.
Unfortunately, you can only serve that subpoena in California which is problematic if you live in New York. Even with a subpoena, they will only provide basic subscriber information unless that user gives his or her consent. The company believes that it does not have to provide user information under the Electronic Communications Privacy Act which was passed before Mark Zuckerberg, the founder of Facebook, danced to his first disco tune at his bar mitzvah. Since this issue is relatively new, a congressional hearing is forthcoming.
Mr. Howiston suggests that the best way to obtain information from Facebook is to make a simple friend request, which is of little utility.
What do you think? What right of privacy should you have on social networks? Should there be a cyber bullying exception?
There is a growing trend for companies to store information at a remote location, or a “cloud.” Whether you are using Google Docs or have remote servers physically located elsewhere, if you are collaborating with other people and information is not stored on your hard drive, you are probably “cloud computing.”
So who is effected by the move to Cloud Computing? The move could impact companies such as software companies, internet service providers and hardware manufacturers. Companies in each of these industries will face a big change if more people turn to cloud computing to store their data.
Cloud computing is a terrific alternative for companies who have people working together on a project at different locations. Because the costs are relatively low, cloud computing makes it easier to conduct business. However if your business is engaged in posting user information online, you should be mindful of privacy and litigation issues.
Be aware of the types of documents that you post in the cloud and how it can be used by others. Businesses should be especially concerned about posting:
- Business presentations
- Employee work and health information
- Tax and accounting records
- Schedules and Calendars
- Contracts
- Trade Secrets
- Confidential Consumer Information
If your company becomes involved in a litigation, your opposing counsel may ask your cloud hosting provider for access to company records. A business engaged in cloud computing must know that privacy laws vary depending on the physical location of your provider.
The liability and responsibility for any breach of privacy claims is something that a business needs to protect itself against. Companies can limit liability by having a properly drafted document retention policy.
For more reading about legal issues in cloud computing for lawyers, read Niki Black’s article in the Lawyerist.
If you have any questions regarding cloud computing, litigation and privacy law, contact me at the Law Office of Frederic R. Abramson at 212-233-0666.
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