Consent Key When Accessing Employees’ Protected Web Sites

October 1, 2009 – In The News
Inside Counsel

© October 2009 Inside Counsel, author Lauren Williamson.

In June, a federal jury ruled that a restaurant's management violated the Stored Communications Act (SCA) by accessing a password-protected social networking site without proper authorization. The case highlights a dilemma facing many employers as workers post nasty work-related comments onto password-protected social networking sites such as MySpace, Facebook or Twitter. When an employee’s web writings violate company policy, his employer needs to know—even if it’s on a "private" site. But accessing those musings without proper authorization can leave a company in hot water.

While the SCA protects web scribes who secure their writing with a password, the statute permits an authorized user to show the comments to whomever she wants. While in this case originally the showing of the site was voluntary, it became involuntary when management asked for the password. "The case would have gone completely differently if [the employee] permissibly allowed someone to access the group," said Mark McCreary. "Then there’s no real issue as far as gaining improper access." McCreary says employers must do their research before even attempting to gain access to such sites. "If you suspect there’s some wrongdoing, then you better have your facts straight," he says. "You need to document it well and set forth the basis for why [the investigation] needs to happen so it doesn’t appear to be a witch hunt."

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