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Social Media Outlets: Social Media Outlets:

Opportunities and Legal Implications for PHA Staff and Commissioners

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Disclaimers• The information contained in this presentation is intended for

INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY

and SHOULD NOT

be considered as a legal opinion or advice for your particular situation or agency. You are encouraged to seek legal representation within your jurisdiction in order to obtain legal assistance for your particular agency, firm or circumstance.

• Use of marks, screenshots or references to ANY

social media, internet website or electronic communication mechanisms used in this presentation DOES NOT

imply any affiliation, partnership, endorsement or sponsorship of any social media, internet website or any other electronic communication mechanism and is for INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY.

• All statistical information and legal precedent is current as of January 15, 2012.

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• What is Social Media?• New Promotional and Public Relations

Opportunities for Government Agencies in Social Media

• Personnel & Operational PHA Policies and New Social Media Legal Considerations

• Steps to Prepare and Protect Your PHA

Let’s Chat…Talking Points

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What is Social Media?• A component of “Web 2.0”, the second generation

of the World Wide Web. See http://www.webopedia.com/TERM/W/Web_2_point_0.html

• Web 2.0 – “The term ‘Web 2.0’ (2004–present) is commonly associated with web applications that facilitate interactive information sharing, interoperability, user-centered design[1], and collaboration on the World Wide Web. Examples of Web 2.0 include web-based communities, hosted services, web applications, social-networking sites, video-sharing sites, wikis, blogs, mashups, and folksonomies. A Web 2.0 site allows its users to interact with other users or to change website content, in contrast to non- interactive websites where users are limited to the passive viewing of information that is provided to them.” Wikipedia

• According to Merriam-Webster - “Forms of electronic communication (as Web sites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content (as videos).”

• “Social media refers to activities, practices, and behaviors among communities of people who gather online

to share information, knowledge, and opinions using conversational media.”

See The Social Media Bible, Tactics, Tools, & Strategies for Business Success by Lon Safko and David K. Brake.

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It’s a New Day…The Age of Information Technology

Over 1.8 billion people use the internet daily, 26% of world population

Over two-thirds of the world's internet population belong to a social network or blogging

site.

Lightning speed development. How long did it take to reach 50 million people? Radio-38 years, Television-13 years, Internet-

4 years, Facebook

–

4 months

Statistics - http://www.internetworldstats.com/stats.htm, http://blog.nielsen.com/nielsenwire/wp-content/uploads/2009/03/nielsen_ globalfaces_ mar09.pdf, http://natlawreview.com/article/legal- guide-to-commercial-risks-and-reward-socialmedia-phenomenon

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Social Networking

Social Communities

Video/Live Chat

Social BookmarkingMultimedia Sharing

Productivity Trackers

Social Learning

YOU

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Popular Social Media Websites and Communication Mechanisms

• Social Networking

– Facebook, LinkedIn®, Twitter, MySpace, Bebo, Ning, Orkut, Plaxo, Google+

• Aggregators/Social Bookmarking

(folksonomy)

– Delicious, Digg, Stumble Upon

• Multimedia Sharing (Photos,Videos, Audio)

– YouTube, Flickr, Picasa, Hulu, Podcast.com, Rhapsody, iTunes, Pandora

• Wikis

(common interest communities)

– Wikipedia, wikiAnswers, WikiFOIA

• Blogs, Micro-Blogs

(forums, diaries)

– Wordpress, Twitter, Blogger, • RSS (Rich Site Summary) Syndication Feeds

- RSS (Real Simple Syndication), Atom, RDF

• Productivity Trackers/Ratings

– AVVO, Eventful, AOL, Yahoo, Google• Video Conferencing/Live Chat

– Skype, Google & Yahoo Chat, Dell Chat, WindowsLive

• Cloud Computing – AWS GovCloud, Google Apps for Government, Microsoft Government

Note: The above list is only a sampling of the hundreds of websites that are categorized as social media.

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The FYI on Popular Social Media Websites

• Facebook– Created in 2004, over 800 million users– Facebook members and connections are “Friends”– “Friends” post “Status Updates”, “Like” and/or “Tag” comments, notes, links, pictures,

videos, join “Group” pages, “Block” persons for privacy purposes and “Report” inappropriate content.

– “Giving people the power to share and make the world more open and connected.” See http://www.facebook.com/facebook#!/facebook?sk=info

• LinkedIn®– Created in 2003, over 135 million users– Networkers recruit and send “Invitations” to “Connect” with other professionals to provide one

another information on recent developments within their industry, can facilitate “Group” discussions and can send and receive “InMail” correspondence to industry experts.

– “More than 2 million companies have LinkedIn Company Pages.” See http://press.linkedin.com/about

• Twitter – Created in 2006, over 300 million users– Twitter “Followers” send “Tweets” (140 character messages) and may “Retweet” messages,

or search content by “Hashtags” or “Trending Topics” and attach shortened website links called URLs (Uniform Resource Locators) to their tweets.

– “We collect and use your information to provide and measure use of our Services and improve them over time.” See http://twitter.com/privacy

Attributions:The Twitter name and Tweets are registered trademarks of Twitter, Inc. Facebook is a registered trademark of Facebook, Inc. LinkedIn® is a

registered trademark of theLinkedIn Corporation. The author of this presentation is not affiliated with, sponsored, or endorsed by Twitter, Facebook or LinkedIn® .

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Functions & Capabilities of Social Media Websites• Networking/Socializing• Referral & job search• Business & professional

development• Branding & public image

development• Free or nominal viral marketing &

advertising opportunities• Fundraising/Causes Promotion• Group/Fan Pages• Photos/videos• Event promotion/ planning• Discussion topics, Q&As• Online document storage &

workspace

• Podcasts, blog/talk radio• Links/Interface with other social

media tools• Accessible via mobile, email, text,

instant messaging• Receive feedback, comment on

items posted• Conduct market research• Slide show/power point sharing• Video conferencing• Search engine optimization

(SEO), generate more traffic to your main web site

• Limitless research capabilities

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Why should public housing agencies care about the internet, social media and related electronic communication devices?“ One-way communications with advertising, press releases, labels, annual reports, and traditional print media is going the way of the dinosaur.” Douglas J. Wood, Reed Smith LLP

Today’s world is an online world. Who’s online?...EVERYONE!•Employees •Clients •Residents •Partners •Contractors •Board of Commissioners •City Officials •Federal, state and local government agencies •General Public

Are online and are using social media and electronic communication devices…What they are talking about can directly impact your agency!

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• Over 76 million are entering into the workforce today

• Motivated by friendship and team environment

• Demands transparency and connection with those in authority

• Born into modern technology as a part of life (cell phones, internet, computers)

• Loves creativity and innovation• Prefers being valued over job security• Demands work/life balance• Most ethnically and racially diverse group

ever born in U.S. history• Fully immersed in newly created internet

language• Expects to have input in their work

environment• Expects instant communication

See Ray B. Williams’ article at http://www.psychologytoday.com/blog/wired- success/200906/millennials-poised-take-over-the-workplace and Clay Collins ‘ article at http://www.clay-collins.com/blog/quitting-things-and-flakiness-the-1- productivity-anti-hack/

Enter “Generation Y” (Millennials) and “Generation Z” (Net Generation)…into the workforce

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Introducing the New Stakeholder

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Government Agencies & Social Media “Gov 2.0”

Coined by Tim O’Reilly, Founder & CEO of O’Reilly Media

• The Department of Housing & Urban Development (HUD)

uses Facebook, Twitter, Flickr, YouTube, HUD User

Forums, HUD wiki and RSS Feed capabilities for public outreach covering ARRA, FHEO, HUD Clips, Multifamily, Research, etc.

• The White House and the U.S. Government use several social media sites, blogs and syndication feeds to distribute information and promote transparency

• Over 100 housing authorities and affordable housing organizations nationwide use Facebook, LinkedIn® , Twitter, Flickr and/or YouTube

• Cities, local governments

and municipalities

across the nation are now using social media

Open Government Directive/ Partnership

• Purpose– To create a culture of open government

• Policy Statement – Government should be Transparent– Government should be Participatory– Government should be Collaborative

• Publish– To promote better online access to

government information– Examples: The Huddle Blog, HUD Ideas

into Action

• Promote – To provide better quality in government

service

See Memorandum for the Heads of Executive Departments and Agencies, President Barack Obama, Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Presidential Documents at http://edocket.access.gpo.gov/2009/pdf/E9-1777.pdf

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New Opportunities for Government Agencies in Social Media

• Public relations and image development at little or no cost

• Furthers Open Government Initiatives & Transparency Requirements

• Furthers the goals of the Paperwork Reduction Act of 1995

• New methods to satisfy public notification & public meeting requirements

• New cybervetting capabilities (internet/social media background checks)

• Ability to provide comment and feedback on agency performance and improve services

• Receive real-time industry, legislative updates and recent developments

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Amazing communication! Wonderful image builder! Great

outreach tool!...

But wait!

Before you connect must weigh the pros & cons…

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Areas of Potential Liability & Legal Implications for PHAs

Publication & Defamation• Balancing PHA’s public relations/media & reputation management vs.

Employee rights under First Amendment Freedom of Speech• Caution required - Posting is publishing. Publishing and broadcasting rights

and liabilities apply to emails, texts, chats, instant messaging, blog comments, tweets...anything you post on the internet.

Personnel • Employee’s rights under reasonable expectation of privacy vs. Employer’s

right to protect legitimate business interests• Fourth Amendment protections against unreasonable search and seizure as

applicable to government employees• Labor/employment issues (e.g. disciplinary actions, discrimination in

cybervetting) pre-employment, during and post employmentProprietary

• Protection of intellectual property, internet website & content ownership, copyright and trademark infringement issues

• Proprietary and security issues with agency owned computer systems/service providers

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Federal Laws Governing Social Media

Publication & DefamationSocial Media websites are generally protected against liability for defamatory statements of its users.Section 230 of the Communications Decency Act of 1996 – 47 U.S.C. § 230 Safe Harbor Statute. “No provider or user of an interactive computer service (the web site) shall be treated as a publisher or speaker of information provided by another information content provider (the user).” Offers protection for private blocking and screening of offensive material.

Personnel Known and anonymous free speech and privacy are protected for all persons under U.S.C.A. Amendment I of the U.S. Constitution - Freedom of Religion, Speech and Press; Peaceful Assemblage; Petition of Grievances and U.S.C.A. Amendment IV of the U.S. Constitution - Search and Seizure, Scope of Reasonable Expectation of Privacy

ProprietarySocial Media websites are generally not liable for trademark or copyright infringement in content posted by its users.Section 512 of the Digital Millennium Copyright Act – 17 U.S.C. § 512. “A service provider (website) shall not be liable for monetary relief, or...injunctive or other equitable relief, for infringement of copyright by reason of the provider's transmitting, routing, or providing connections for, material through a system or network...” Allows copyright owner to request removal of infringing material. Limitations on liability relating to material online and “take-down” provisions for copyright infringers.Stored Communications Act of the Electronic Communications Privacy Act 1989 – 18 U.S.C. §270(a)(1)(2). Liability for remote computing services and electronic communication services.Know the restrictions third-party service providers have when retrieving and transmitting content of electronic communications.

Exceptions to 17 U.S.C. § 512 & 47 U.S.C. § 230Website providers must stay within the definition of an interactive computer service and not alter or republish materials, gain financial benefit or otherwise convert the content in order to remain protected under the safe harbor provisions.

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Housing Law and Social Media

• “Housing websites” are distinguished from other sites (such as dating or personal) and are subject to federal and state discrimination laws.

• Housing websites must advertise, solicit and track information in accordance with federal and state discrimination laws.

• Housing websites cannot ask questions, direct correspondence or participate in any steering or channeling of any questions that could not be asked in person or on housing application forms.

• Protected Classes under the Civil Rights Act of 1968 § 804 [42 U.S.C.A. § 3604] (Fair Housing Act) and all related discrimination laws are still protected classes on the internet.Fair Housing Council of San Francisco Valley vs. Roommates.com, LLC, 521 F.3d 1157 (2008).

• The Freedom of Information Act (FOIA) – 5 U.S.C. § 552• Related State and Local Open Records and Public Meetings Acts

and Ethics Codes– Know which items are subject full and partial disclosures– Exemptions – security, privacy, privileged, confidential, law

enforcement, etc.• Tips for PHAs

– Maintain current by-laws and policies (records retention, procurement, IT/electronic communications, grievance, open door, etc.)

– Should have designated FOIA Officer to monitor compliance

“The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails.” President Obama

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Let The Sunshine In…

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EmailsTo: EmployersFrom: The New Jersey Supreme Court, Stengart vs. Loving Care Agency,

408 N.J. Super. 54, 973 A.2d 390,(2009). Subject: Employee personal email correspondence to private attorney

on company-owned computer equipmentImportance: High_______________________________________________________________________________________________

The issue in this case pertained to whether or not work-place regulations converted an employee’s personal email correspondence sent to her attorney into company property. The emails were sent after the employee filed a discrimination claim and were sent through the employee’s personal, password-protected, web-based email account, but via the employer owned laptop computer that was assigned to her.

The court here stated that in order to claim the emails as work-place property, the employer must have a “sufficient nexus”

between the employee's personal life and the employer’s legitimate business interests. The court discouraged “electronic eavesdropping”.

Computers were analogized to employee file cabinets, and as such should be subject to inspection only upon necessity. The court sought to protect the content of the emails in this case because of the existing attorney-client privilege. The privilege was extended to electronic communications. The court stated that an “important societal interest”

is promoted in protecting attorney-client privilege in email communications. If no privilege existed the outcome may have been different. The court also stated that the employer’s policies did not cover personal email accounts and therefore the employee had no reasonable expectation that the emails would be retrieved by the employer.

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Text Messages… personal texts on government SMS (short messaging service)

√City of Ontario, California, et al v. Quon, et al (pager) U.S. Supreme Court, Slip Opinion No. 08- 1332, June 17, 2010

Quon: Sent 100’s of texts on government-issued pager containing TMI on inappropriate personal matters and was disciplined. Quon stated the texts were P&C and that his 4th Amendment rights under “unreasonable search & seizure” were violated when the City retrieved the texts.

City of Ontario: Government (gov’t) employees have no reasonable expectation of privacy when working on gov’t time, while using gov’t equipment and when there is an established gov’t policy in place, signed by the employee which clearly states NO CONFIDENTIALITY on ANY computer, internet or email system.

U.S. Supreme Court: Gov’t employees do have a reasonable expectation of privacy in the content of their text messages. BUT, government agencies also have the right to conduct reasonable searches of government owned equipment if performed in accordance with established policies and are for “legitimate work-related purposes”.

BTW – The Supreme Court recommends that employers perform their DD and have sound policies in place that cover social media and all forms of electronic communications as a safeguard in the event of future disciplinary action against the employee.

Text Glossary: TMI–Too Much Information, P&C-Private & Confidential, BTW-By the Way, DD-Due Diligence,

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Tips before you Click

• Read the terms of use and privacy policies of social media websites prior to use and periodically

• Put adequate cyber security systems in place to protect against phishing, spam, viruses, etc.

• Create or redraft PHA policies to cover social media usage …why?

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Because our employees are talking about… Everything!

• Employee hires, disciplinary actions, terminations

• Job searches and employee recommendations

• Cybervetting

/ background check information for potential & current employees, contractors, sex offenders, other illegal activity

• Discrimination in suitability/ eligibility determinations of clients

• Unauthorized Leave

• Status of ADA/ EEOC/ Fair Housing Act/ Section 504 Claims

• Unauthorized media correspondence for PHA sponsored events

• Conflicts in Worker's Compensation claims

• Potential misrepresentations of agency programs

Personnel Policies and Practices: Where do you draw the line?

Employers respect employee’s freedom of speech and privacy as…

Employees respect employer’s reputation and property.

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Personnel/Operational Policy Considerations Steps to Prepare & Protect Your PHA

• Confidentiality & Privacy of Employee/Client Information

• Effective use of disclaimers, do emphasize employee use of 1st person voice only, not as a representative of the agency

• Copyright/trademark/logo usage with consent only

• Identify proprietary information & equipment

• Designated persons for media correspondence

• Reminders that code of conduct/ state ethics rules still apply to internet activity

• Freedom of Information Act, local Sunshine and Open-Records Acts

• Prohibitions against discriminatory activity apply to the internet (hostile work environment, sexual harassment, protected classes, etc...)

• Promotion of respect among employees

• Agency work hours, productivity and performance expectations

• Personal internet usage on agency equipment

• Insurance coverage to include cyber liability

• Reminders that all applicable federal, state and local laws for civil and criminal activity, apply to the internet & social media

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Social Media is not going away, a universal audience is one click away, put policies in place, to promote & protect your PHA…

Limitless Opportunities• Improve reputation• Increase resident participation• Professional networking & recruitment• Professional training & educational

resources• New background screening

capabilities• Online collaboration with other PHAsSerious Implications• Protecting privacy rights of employees • Monitoring & liability for employee

conduct• Reputation management• Copyright/proprietary infringement• Liability for inconsistent policy

enforcement

Additional Social Media ResourcesPrivacy Information •Federal Trade Commission - http://www.ftc.gov/privacy/•Electronic Privacy Information Center - http://epic.org/•On Guard Online - http://www.onguardonline.gov/topics/social-networking-sites.aspxSocial Media Information•Technorati - http://www.technorati.com, Mashable - http://www.mashable.com•Government On Facebook - http://www.facebook.com/government?sk=info•Cloud computing for government agencies - Amazon Gov Cloud - http://aws.amazon.com/govcloud-us/,Microsoft - http://www.microsoft.com/industry/government/products/bpos/default.aspx, Google Apps for Government - http://www.google.com/apps/intl/en/government/Policies/Best Practices•Social Media Governance - http://socialmediagovernance.com/policies.phpFLickr, Best Practices Government for Guide, http://www.usa.gov/webcontent/documents/flickr_best_practices_guide.pdf•Guidelines For Secure Use of Social Media by Federal Agencies and Departments - http://www.cio.gov/Documents/Guidelines_for_Secure_Use_Social_Media_v01-0.pdf•Open Government Directive, President Barack Obama, Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Presidential Documents, http://edocket.access.gpo.gov/2009/pdf/E9-1777.pdf•Memorandum for the Heads of Executive Departments and Agencies, and Independent Regulatory Agencies: Social Media, Web-Based Interactive Technologies and the Paperwork Reduction Act, Cass R. Sunstein, Administrator, April 7, 2010 Executive Office of the President, Office of Management and Budget, http://www.whitehouse.gov/omb/assets/inforeg/SocialMediaGuidance_04072010.pdf•Federal Freedom of Information Acts and State Sunshine Laws - http://sunshinereview.org/index.php/State_sunshine_laws•The FYI on Personal Texts for Government Employees, Melissa Maddox-Barnes, Esq., South Carolina Bar Government Law Section Newsletter, Government Law & News, Summer 2010, http://www.scbar.org/public/gvt/govlawsummer10.html

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THX NERC-NAHRO!

Good Luck in Cyberspace!BBFN!

☺