On January 20, 2011, a federal class action lawsuit was filed against MySpace in the United States District Court for the Eastern District of New York. If successful, this new lawsuit could have dramatic implications for social networking sites and their users. Either way, it provides another opportunity to make a couple of privacy-related points for employers.
The MySpace lawsuit was filed on behalf of all former and current users of MySpace, who seek damages for the alleged improper and voluntary disclosure of personal and private information and data in response to foreign court search warrants without the knowledge or authorization of the MySpace users. The class alleges that search warrants issued by state judges for certain information have no force and effect when they are issued to MySpace’s California headquarters from other states, but that MySpace nevertheless provided responsive information and data voluntarily.
Among the information produced were credit card information, address and telephone numbers, private message content, IP addresses, and relationship information. The class alleges that MySpace’s voluntary disclosure in the face of unenforceable warrants violated the federal Electronic Communications Privacy Act, the federal Stored Communications Act, New York’s General Business Law, and MySpace’s own terms of use and privacy policies. MySpace has not yet responded to the Complaint, however we will continue to follow this case as it proceeds.
Employer Take Away: What should you as an employer take away from this development? To the extent the Court ultimately issues a decision on any of the merits of this case, there may be significant implications for this apparent tension between disclosure obligations of social networking sites on the one hand, and the privacy of their users on the other. This case also raises a couple of issues that should be considered by employers as well.
The right to privacy is continuing to emerge as a significant social media and employment law issue. With regard to your employees, many states (including New York) now have their own statutes imposing obligations on employers for the handling, disclosure and disposal of private employee information and data, such as social security numbers and medical-related information. You should also create and maintain the appropriate policies and practices to ensure that sensitive, private information belonging to your customers and clients is not improperly disclosed by your employees. The use of social media by your employees, whether blogging, tweeting, or other social networking, increases the risk that such information can be disclosed to third parties, even inadvertently.
Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.
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