No one made it through the last year without hearing about emails. Did you think “Well, I’m safe, I don’t have a private email server” or “Well, I’m safe, I’m not privy to top-secret government emails.” In reality, no one is really safe and everyone should be more aware of the quality and tenor of their online communications.
From a legal perspective, all relevant written communication, unless privileged, is discoverable in a legal action. A legal action can include a contract dispute, a personal injury action, a criminal matter, a divorce or custody matter, to name a few. Discovery is the mechanism by which one party is allowed to request evidence from the other party, and that other party must comply.
But what is written communication? Letters certainly. Records, like medical records, logs, tax returns, definitely. That’s all pretty standard stuff.
What about emails, text messages, private messages, social media posts and other means of electronic communications? You betcha.
The very nature of these types of communication is informal. Email and text threads read like a dialogue, more like the transcript of a telephone conversation than an old-fashioned letter. However, courts have ruled that you have a completely different expectation of privacy with your telephone conversations than with written electronic communication.
Here are some examples of how careless electronic communications can come back to haunt you.
A company has a poorly negotiated contract with a vendor. The only way to get out of its contractual obligations requires the vendor’s failure of performance. Through an email thread, the company’s management team decide to “set up” the vendor for failure, and sabotage the vendor’s performance. In the ensuing lawsuit by the vendor for breach of contract, all of those emails would be discoverable by the vendor’s legal counsel and the company would be on the hook for breach of contract.
A person sustains a severe injury at work, requiring surgery which is successful. The person makes a full recovery but claims a residual disability that keeps them from returning to work. The person seeks worker’s compensation coverage for the money lost from work. At trial, you can be sure that the employer will be using the social media posts of the employee, post-surgery, vacationing in tropical locales, skydiving, surfing and otherwise performing some pretty physical activities.
Recently in Pennsylvania, private emails carelessly forwarded as jokes cost politicians and judges high scrutiny and in some cases, their positions. It is important to note that while some of the off-color emails went to and from official government email accounts, some of them went to and from private email accounts as well. While no criminal charges stemmed from these exchanges, the possibility loomed.
People are recording crimes and posting them. Crimes. Criminal activity. Then posting it. Publically. Nothing can be said about them. You can joke around and ask Siri for good places to hide a body, but give it time and someone is going to ask her for real. And that search, as recorded by Siri, will be used as evidence in the ensuing murder trial.
Text messages between paramours become evidence in divorce and custody cases. Text messages between spouses become evidence in divorce and custody cases as well. Messages between parents and children. Geo-tags in social media posts together with the media time stamps are admitted as evidence. Pretty much once you end up in family court, everything is fair game.
Employers search your social media presence before making hiring decisions.
They also Google you. Although it hasn’t been tested in the Courts yet, what you post and share may legally be able to implicate hiring practices. It may not raise ethical implications if they are looking for evidence of trashing former employers or bosses or revealing corporate secrets and information. They may even have justification to base an adverse decision on posts evidencing alcohol and drug use or abuse (how about simply the poor judgment of making such posts?).
What about using search history research to gauge a candidate? There are studies that suggest it is on its way, or already happening. For example, if research shows a correlation of IQs to certain pages that are followed on social media, and lower IQs to other topics, this would give employers a barometer to measure IQ (and ostensibly job performance) based on what pages you like on Facebook.
And keep in mind that the line between work and personal gets blurrier and blurrier every day. People send work emails to their personal email. People fail to realize what account they are logged into and send personal messages from their work accounts.
So, how can you protect yourself?
First of all, be selective about what you share on social media if you even choose to have a personal presence. Be even more selective about comments. Do not get into social media wars – nothing good can come of it. Keep in mind that what you shared could end up as lawsuit fodder or public scrutiny, even if you only share it with a small universe of “friends.” Everyone is a friend of someone, and one of those people is bound to not be your friend.
When in doubt, either err on the side of caution and don’t publish it or ask for feedback from a trusted friend or colleague. Same goes for emails. Write it as a draft if you must, and save it for a day. Go back and revisit. What may have seemed appropriate in the heat of the moment may not look as attractive 24 hours later.
Remember geotags. People can find you. It is fine when you are behaving. Are you comfortable with being locate-able 24/7? People will always find you when you don’t want to be found.
Be careful in your emails!
Keep them professional and business-like. Treat email like snail mail – if you wouldn’t write it and put a stamp on it and show it to your mother, don’t send it. If it is questionable at all, err on the side of caution. You can always text or email two simple words. “Call me” works wonders. It also takes conversations out of the unprotected realm and into a realm with the expectation of privacy.
Text messages may be instant and convenient, but don’t use them to discuss business or even important matters. Text messages, by their very nature, are meant to be quick communications. Tone, context, voice all get lost. Text messages leave a very real footprint behind. Most cellular service providers can (and will) provide a transcript of all of your text messages and a history of phone numbers that you are texting.
Also, consider revisiting your social media friend list. Do you really know and trust these people? Are they acquaintances, friends, friends of friends, colleagues, your clients, your bosses? While some content may be appropriate for consumption by some of these circles, is it appropriate for all of them? Do you even consider that before you post the pictures of your vacation in Punta Cana?
If you are actively involved in any sort of lawsuit, please have a frank discussion and disclosure with your lawyer. Trust me, nothing is worse than your client swearing that he didn’t know that woman, only to be confronted with posts of the two all snuggled up at a romantic dinner. Or having photographs of your disabled client carrying 50 pound bags of concrete up multiple flights of steps reproduced from his social media pages produced as evidence he is faking or at least exaggerating his injury.
We are living in this oversharing era. A time where people think that everything they have to say is worthwhile and that people want to know every little detail about them. A little caution, a little good sense and a lot of thought go a long way to keeping you safe. While this is always true in the real outside world, it is a good rule of thumb in the online virtual world as well.