busted

This page considers dismissal of employees and suspension of students on the basis of information on social networks.

It covers -

• introduction
• dismissals
• arrests
• suspensions and expulsions
• studies

A broader discussion of workplace censorship features here.

     introduction

In February 2008 the UK Independent claimed that

From Los Angeles to Lowestoft, thousands of social network site users have lost their jobs – or failed to clinch new ones – because of their pages' contents. Police, colleges and schools are monitoring MySpace and Facebook pages for what they deem to be "inappropriate" content. Online security holes and users' naivety are combining to cause privacy breaches and identity thefts. And what all this, and more, adds up to is this: online social networking can seriously damage your life.

The extent to which people have lost jobs (or lost opportunities for jobs), have been suspended from school or otherwise suffered when an institution, employer, vetting service or other entity has examined SSN content is unclear. It reflects variation in institutional practice and in workplace or other law, with dismissals in some US states for example involving firings under 'at will' regimes that provides employees with substantially less protection than that found in Australia.

There have been no comprehensive studies. Much coverage in the mainstream media is alarmist and anecdotal, often driven by thin media releases from recruitment services or from network security vendors.

It is clear, however, that some individuals have been disadvantaged because they chose to provide information on Facebook, MySpace, Bebo or another SNS.

Some of those people are alerted that the information has resulted in detriment (eg they are being fired or suspended because they engaged in particular behaviour on the network, made a statement or revealed that they had engaged in stigmatised offline behaviour).

Other people may however have been silently 'sorted' (for example tacitly denied a job or tagged as someone deserving of closer ongoing observation) on the basis of SSN content encountered by another entity which chose not to bring concerns to the attention of the person.

Being 'busted' for what is expressed in a social network service is not unprecedented, contrary to hyperbole from some SNS zealots whose enthusiasm is matched by their ignorance or disregard of offline law and business practice.

People have for a long time been fired from jobs or encouraged to resign from public positions after 'unfortunate' utterances were published by newspapers or relayed by broadcasters. Students and academics have similarly been punished for statements and activity offline. Arguably what makes SNS different are expectations that electronic fora are somehow privileged, that the 'wrong' people (such as employers or school administrators) simply will not encounter problematical SNS content or that participants can engage in bullying or stalking with impunity.

     dismissals

Recent years have seen interest in blog-related dismissals, discussed in more detail elsewhere on this site. What of people losing their jobs (or being disciplined) for what appears in social network spaces?

As noted above, there has been no comprehensive study of how many people have been fired (or alleged to have been fired or not employed) on the basis of behaviour in SNS - such as harassment of a colleague or criticism of the employer - or what a SNS profile/message reveals about them (eg that they were gay, were union activists, were a party animal). Most media coverage has been resolutely anecdotal.

Examples include -

• Jeff Crouse, a teacher at a Las Vegas Catholic school fired after he declared himself gay on his MySpace page. The Las Vegas Diocese indicated that he was "terminated, per his contract" for "maintaining, by word or action, a position contrary to the ordinary teaching of the Catholic Church".
• the Florida sheriff's deputy fired after his MySpace page revealed his heavy drinking and fascination with female anatomy
• Tom Beech, fired by retailer Argos in Wokingham for saying on Facebook that working at the firm was "shit". Argos indicated that Beech was busted for "placing inappropriate entries on Facebook"; he said "I'm stunned they fired me for this. I had a really bad day and was feeling overworked and under-paid. My mistake was to sound off on Facebook."
• staff of Ottawa grocery chain Farm Boy Inc fired for their "negative comments" on Facebook
• 19 Northampton police officers investigated over Facebook comments in support of a colleague who accidentally ran over a fleeing burglar. Det Supt Charles Moffat commented in 2007 that investigation was "because it's clearly inappropriate to be discussing ongoing investigations in an open forum that is not secure. ... staff should exercise some caution in the use of these sites which are not secure and it could lead to the identification and danger of themselves their colleagues and their families."
• Anglo Irish Bank intern Kevin Colvin, sprung in 2007 when he told his employer that he had a family emergency but whose Facebook profile featured pictures of him in drag enjoying a Halloween party
• Tory aide Philip Clarke suspended from his job in 2007 after his Facebook profile featured racist comments and photos of him applying burnt cork to another aide.

In 2008 Inspector Chris Dreyfus, head of royalty and government protection for the British Transport Police, was denied promotion to chief inspector because he posted "personal information about his gay lifestyle" on Facebook. Dreyfus had been offered a position as chief inspector with Bedfordshire Police; that force subsequently withdrew the offer after a vetting check. He had received a warning from his seniors over his Facebook profile. Dreyfus noted that there was "nothing sexually explicit" and commented that "As long as I do not do anything to disgrace the force then what I do privately is acceptable". Observers have unsurprisingly noted that other police executives have not been punished for having a 'straight lifestyle'. Dreyfus remains responsible for guarding the Queen, the royal family and government figures when they are on the rail network.

     arrests

SNS content has also been exploited by law enforcement agencies.

Jacob Hansen's Facebook profile for example was examined in 2007 after he was charged with motor vehicle homicide. That search resulted in prosecution for an unrelated crime: misdemeanor possession of stolen property. Photos on the profile featured numerous stolen street and warning signs (some captioned 'I steal signs when I'm drunk'), with Omaha City Prosecutor Marty Conboy commenting "it certainly makes police work a lot easier when you can find evidence posted by the suspect".

In 2008 Moroccan computer engineer Fouad Mourtada was sentenced to three years imprisonment for setting up a spoof Facebook profile in the name of Prince Moulay Rachid, younger brother of King Mohammed VI. Mourtada was reportedly beaten into unconsciousness by Moroccan police, with the court denouncing him for "villainous practices" akin to lèse majesté. He explained that the profile

remained on line a few days before somebody closed it. There are so many profiles of celebrities on Facebook. I never thought that by creating a profile of his highness prince Moulay Rachid I am harming him in any way. I, as a matter of fact, did not send any message from that account to anyone. It was just a joke, a gag.

     suspensions

There has been no comprehensive study regarding monitoring by educational institutions of SNS content or blogs created by students.

In the US there has been debate about the appropriateness of monitoring per se, of sanctions against content created outside the insitution (eg posted from a personal machine rather than from a school network), and whether 'electronic graffiti' should enjoy special protection.

In Australia and elsewhere there has also been disagreement about 'gripe' or 'score' sites that encourage students to 'rate your teacher', particularly on an anonymous basis.

Incidents in the US include -

• expulsion in 2005 of a student from Fisher College for Facebook postings about a campus police officer that were deemed to violate the school's code of conduct
• fines imposed on four students at Northern Kentucky University in 2005 after they posted pictures of a drinking party on Facebook, demonstrating that they had violated NKU's 'dry campus policy'.
• expulsion of a student from Arkansas's John Brown University in 2007 after administrators discovered Facebook pictures of him dressed in drag, a violation of the school's 'Christian Conduct' code
• suspension of 16 year old Bryan Lopez from school in Colorado during 2006 for "a satirical comment on the poor physical condition of the school, the behavior and demographics of students and staff, lack of resources and the perceived racial biases of teachers and administrators". The comment was posted from home to his MySpace page. Suspension reflected school policy prohibiting "off-campus conduct" that is "detrimental to the welfare or safety of other students or district employees."
• suspension of two Oak Park (Illinois) eighth graders after school administrators saw their MySpace postings featuring "foul language, a digitally altered photo of George Bush sticking up his middle finger ... and disparaging references" to another school in the area. The administrators threatened to cancel the school's graduation ceremonies unless all students deleted their MySpace accounts.
• suspension of six students at Beaverton (Oregon) in 2006, from Southridge High School over "threatening language" posted off-campus on MySpace, including "an online forum attacking Goths". Suspension reflected the school's "harassment and disruptive behavior policy, covering action that disrupts learning".

(It should be noted that suspensions for 'off-campus' expression in the US are frequently contested and that particular institutions have reached out of court settlements. Examples are O'Brien v. Westlake City Schools Board of Education, Dwyer v. Oceanport School District, Beussink v. Woodland R-IV School District, Flaherty v. Keystone Oaks Sch. District.)

     studies

Points of entry to the US legal literature include 'Unsolicited Commercial E-Mail, Privacy Concerns Related to Social Network Services, Online protection of Children and Cyberbullying' by Usha Munukutla-Parker in 2 I/S: A Journal of Law and Policy for the Information Society (2006) 627-650; 'Keep Out of Myspace!: Protecting Students From Unconstitutional Suspensions and Expulsions' by Christi Cassel in 49 William & Mary Law Review (2007) 643-72; 'Six Clicks Of Separation: The Legal Ramifications Of Employers Using Social Networking Sites To Research Applicants' by Ian Byrnside in 10 Vanderbilt Journal of Entertainment & Technology Law (2008) 445-473; and 'The Story of Me: The Underprotection of Autobiographical Speech' by Sonja West in 84 Washington University Law Review (2006) 905-58.

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