New Jersey Law Journal            Volume 195, No. 7, Index 405              February 16, 2009



 By Jonathan Bick  Bick is of counsel to WolfBlock of Roseland and is an adjunct professor of Internet law at Pace Law School and Rutgers Law School. He is also the author of '101 Things You Need To Know About Internet Law' [Random House 2000].

Web logs (blogs) simultaneously provide Internet users with social network prospects and employers a source of information suitable for employment assessment decisions but previously inaccessible. While social networks users may argue that posted content is private, courts have unequivocally ruled that the revelation of personal information in a public manner results in the diminution or elimination of reasonable privacy expectations. To avoid legal difficulties, employers are well advised to employ three particular policies when using information mined from blogs.

Three policies which may help ensure the lawful use of blogs include specific actions associated with third parties, existing employees and potential employees. First, attempt to ensure the firm's personnel who research potential employee's background comply with the appropriate third-party terms of use agreements while data mining blogs. Second, update the firm's employee handbook to detail what data mined from blogs may be used, and what data mined from blogs may not be used. Third, update disclosures and background search permission acknowledgements used by potential employees and existing employees to appropriately cover blog review.

Lawful access to blogs requires compliance with a set of terms of use associated with the terms of use agreement associated with each blog mined. A terms of use agreement for a blog is a set of rules set up by the operator of a blog which govern how their blogs may be legally used. From a legal prospective, a blog's terms of use agreement is a contractual agreement between a blog operator and a third-party user. A blog terms of use agreement generally details the duties of each party. For employer researchers, this agreement identifies what a blog user may do with the content posed on the blog. In a court of law, agreeing to terms of use is tantamount to entry into a written contract.

From the employer's prospective a blog terms of use agreement is useful for justifying what can and cannot be done to the content of the blog with or without permission. Typically, with respect to content, a blog terms of use agreement normally is limited to stating that content may not be distributed by e-mail or other means. Thus, the blog terms of use agreement does not prohibit an employer from using the content as a basis for an employment-related decision.

To avoid legal difficulties, it is advisable for employers who review blogs as part of the employment process to require employee blog miners to include a copy of the terms of use agreement of each blog reviewed in the blog content file. Such information will assist the blog content user in making a proper decision with respect to the use of the content in question. Alternatively, have a third party certify that the employer's use of the blog complies with the appropriate terms of use agreement.

By providing basic information, including a valid email address, a blog may be established on many social network sites, such as Windows Live Spaces, MySpace, Facebook, etc. Blog users can freely post content which anonymous third parties, including employers, are equally free to read.

Among the many standard public profile used by most social networks are such terms as sex, drugs, porn and alcohol. These terms are use by social network users in their basic shared information files to allow others to search for, find, and connect with them. Additionally, social network sites allow users to post nearly anything they wish about themselves on their personal profiles, including political views, sexual orientation, interests, relationship status and religious beliefs. Employers may find such content useful to their decision-making process. However, employer data miners and employer employment decision makers must be trained as to what data they may collect and how such mined data may be used.

The use of Internet searches for employment decisions has been found to be lawful, see United States Court of Appeals for the Federal Circuit 06-3284 David Mullins v. Department of Commerce (May 4, 2007). Consequently, it is not surprising that the National Association of Colleges and Employers reported that more than 40 percent of employers reported that they regularly review potential hires' posted social network information and suggest that such information may influence their hiring decisions.

It is not lawful for an employer to use lawfully mined Internet information concerning race, age, gender, sexual orientation or religion for certain employment decisions purposes. Consequently, an employer should establish and promote policies which forbid the unlawful use of such information.

An employer should update the employee hand book to specifically state that in the course of reviewing blogs as part of the employee hiring process it is contrary to company policy to collect or use information for an unlawful motive -- for example, discrimination based on race, gender or age. Additionally, it is advisable to hold a training class, or include in any existing training class for those who hire for the employer information concerning the proper use of blog research. The combination of notice and training should protect an employer from the unlawful use of blog mining by a rogue employee.

It should be noted that if an employer learned on the Internet that a potential employee was engaging in conducting harmful activities, such as active involvement in numerous motor vehicle accidents, the company may use this information as a basis for rejecting the applicant as a company driver. In short, the company should only permits employees to use the results of blog research as grounds for employment action if the information is related to work.

In order for a person's privacy to be invaded, that person must have a reasonable expectation of privacy. While the mere fact that a person can be seen by someone does not automatically mean that he can legally be forced to be subject to being seen by everyone, see Sanders v. American Brdcst. Co., 978 P.2d 67, 72 (Cal. 1999).

However, most courts reject a plaintiff's invocation of a limited right to privacy regarding particular facts or information that the plaintiff disclosed to third parties. Consider Nader v. General Motors Corp., 255 N.E.2d 765 (1970), where the New York Court of Appeals found that people assumed the risk of public disclosure when they disclosed private information to others. Thus, it is generally found that as a matter of law, facts shared with others are no longer private, see Duran v. Detroit News, Inc., 504 N.W.2d 715 (1993) and Fisher v. Ohio Department of Rehabilitation and Correction, 578 N.E.2d 901 (1988).

Other cases have also dealt with the unauthorized use of an Internet site and are suitable for application to matters involving a violation of terms of use agreement. For example, in the case Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002), the Ninth Circuit determined that the unauthorized viewing of a secured Internet site by an employer could afford a plaintiff a cause of action under U.S.C. §§ 2701-2711 (2000), Title II of the Electronic Communications Privacy Act.

From a legal prospective, some sources suggest that an employer who does not search social networks for readily available information may be negligent in their hiring practices. Internet social networks provide employers with a low-cost, easy-to-use, high availability screening tool for job applicants. For the safety of existing employees it may argued that a blog search is necessary. In light of the cost and availability, it may be argued that an employer has a duty to mine blogs of potential and existing employees.

With the power and responsibilities employers have in the workplace, it is important that employers possess as much lawful information about their staff as practical. Employers must also train their Internet researchers to separate content related to work from content related to personal life. Despite the available technology that can potentially limit or block unwanted third parties from viewing social network profiles, most blog users do not activate their privacy settings, thus lawfully allowing employers to gain access to profiles seemingly protected by privacy settings.

Employers can access potential hires' social networking profiles in a variety of ways. Firms may simply hire graduates who kept their profiles and maintain connections to their colleges' social networks, thereby maintaining connections to the college students who make up the bulk of Facebook users. Alternatively, with an alumni e-mail address, employees can create profiles and become affiliated with their undergraduate universities' networks, thereby acquiring access to current students.

Finally, to avoid legal difficulties an employer should update disclosures and background search permission acknowledgements used by potential employees and existing employees to appropriately cover blog review. Evidence of consent will extinguish many causes of action with respect to blog mining.