If checking Facebook at work were a federal crime, the government may as well outlaw office gossip and coffee breaks.
These days, Congress and corporate America seems to be pigeonholing the Internet as a workplace tool—and nothing more. But, for gamers, social media-istas, and chronic procrastinators, this determination is like being stuck between a rock and a hard-drive.
Why can’t the Internet be both a business tool and a conduit for leisure?
Mostly because the government would love to regulate the suspicious and potential dangerous online activities of its population, the way it can’t personal pleasure or freedom.
Yesterday, Chief Judge Alex Kozinski, in an opinion of the U.S. Court of Appeals for the Ninth Circuit, decided the government had gone too far in interpreting an anti-hacking statute called the Computer Fraud and Abuse Act (CFAA).
According to Judge Kozinski’s opinion, no, it is not a federal crime to check facebook at work—despite workplace policy. And, no, it is not a federal crime to gchat with friends, play online games, shop, or watch sports highlights in violation of employer policy.
“While it’s unlikely that you’ll be prosecuted for watching Reason.TV on your work computer, you could be. Employers wanting to rid themselves of troublesome employees without following proper procedures could threaten to report them to the FBI unless they quit,” explained Judge Kozinski.
“Ubiquitous, seldom-prosecuted crimes invite arbitrary and discriminatory enforcement.”
The WSJ Law Blog points out that this ruling puts the Ninth Circuit at odds with the Fifth, Seventh,, and 11th circuits, which adopted a broader view of the law’s coverage.
“Were we to adopt the government’s proposed interpretation, millions of unsuspecting individuals would find that they are engaging in criminal conduct,” stressed Judge Kozinski.
As such, Judge Kozinski asked the three dissenting courts to reconsider.
“These courts looked only at the culpable behavior of the defendants before them, and failed to consider the effect on millions of ordinary citizens caused by the statute’s unitary definition of ‘exceeds authorized access.’ They therefore failed to apply the long-standing principle that we must construe ambiguous criminal statutes narrowly so as to avoid ‘making criminal law in Congress’s stead,’” wrote Judge Kozinski in his opinion.
“We therefore respectfully decline to follow our sister circuits and urge them to reconsider instead.”
Just as courts ought to reconsider their rulings, law firms should reconsider their related workplace policies.
In light of the potentially huge consequences for violating workplace social media policies (at least for federal crimes in the Fifth, Seventh, and 11th circuits), what kind of message are you sending associates?
Is your firm culture so severe that it would like to see its employees prosecuted for procrastinating online?
A study by American Express showed 39 percent of younger workers won’t even consider working for a company that blocks Facebook, according to Kevin O’Keefe’s points for “Why law firms need to stop blocking the use of social media,” on his site Real Lawyers Have Blogs. Because Facebook is now the primary communication and networking tool for many young professionals, why block its use and alienate this group?
Whatever your choice in language and limitations in a workplace social media policy, law firms should remember—in the least—to create one.
In 2011, over 100 employers were accused of improper social media practices or policies, according to The Center For Competitive Management. If not to protect your employees from strict law enforcement, protect your firm.
If you’re unsure where to start, try research and a round-table discussion with a mix of junior and senior attorneys. Along with administrators, ask the group to create a social media policy that reflects their own opinions on the matter. Most likely, your employees will know best what types of social media uses actually constitute abuses.
A round-table discussion will also ensure your employees take the time to read workplace policy; after all, they helped write it.
Finally, if you’re still stuck, attend C4CM’s course on audio CD, Social Media at Work: Bulletproof Policies that Minimize Legal and Financial Risks.