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Monday, February 22, 2010

Pitfalls in social networking sites for police officers

The U.S. Supreme Court agreed this past term to hear an appeal from the 9th Circuit Court of Appeals in Quon v. Arch Wireless. At issue is the extent of the privacy rights a public employee has in text messages sent over his department issued pager. The 9th Circuit found that Sgt. Quon, a member of the Ontario, California Police Department, had a reasonable expectation of privacy in the the text messages he sent from his department issued pager based on the past practice of his paying for any charges and fees in excess of those covered by his employer. As anticipated as this decision may be, especially for those of us working within the field of law enforcement representation and employment law, it highlights a growing trend among police in the United States. That trend is the increased frequency with which officers are being disciplined or finding themselves at the wrong end of a department policy based on their use (or actual misuse) of electronic media. Specifically social networking sites such as Facebook, Myspace and Twitter have caused some unexpected problems for officers. This trend just follows earlier internet related disciplinary run-ins resulting from officer blogs, viewing of internet pornography sites and officer websites displaying questionable material in terms of taste and propriety. While the viewing of prohibited internet sites from the workplace is a cause for employer discipline of an employee in both the public and private sector the issues surrounding social networking sites may be a bit more muddled. As a generation of new officers who have grown up with access to these social networking sites enter the ranks they are less inclined to see the problem with social networking sites and employer placed limits on their off-duty use. Just as a prior generation of officers were forbidden to frequent certain establishments when off-duty a new generation of officers may be precluded from their activity on the internet.

One agency in New York State has sought to define these limits by enacting a policy for an officer's use and postings on social networking sites. City of Utica Police Chief Mark Williams has crafted a use policy that focuses on protecting the reputation of the department and the individual officer. An ex-con arrested in NYC for possession of a weapon was able to have charges dismissed by using the arresting officer's MySpace and Facebook statuses against him. At the criminal trial NYPD Officer Vaughan Etienne was questioned by defense counsel as to why his Facebook status as the trial neared had him "watching 'Training Day' to brush up on proper police procedure." He further had to explain why his MySpace page was set to the mood of "Devious" on the day of the arrest. The officer also had to explain comments he made on a video about using excessive force on suspects. This officer, as reported in the Gothamist, had a prior suspension for steroid usage. The suspect alleged the officer planted the gun found on him and with the help of the officer's online postings was able to convince a jury. Incidents such as that which occurred to NYPD Officer Vaughan Etienne are not only an embarassment to the officer but a compromise of the integrity of police work. Police departments across the country are looking to implement departmental policies on officer use of social network sites. Other have already done so such as the City of Utica Police Department and more recently the Minneapolis Police Department. A copy of the MPD policy adopted this past December is provided at the end of this post.
So what are the limits that a police department can place upon its officers? A police department can regulate officers as it determines is necessary to accomplish agency mission and service goals. Court challenges to this authority is seldom successful. In Kelley v. Suffolk County Police Department, 425 U.S. 238 (1975) the U.S. Supreme Court recognized a municipality’s right to “organizational structure for its police force,” structure which “gives weight to the overall need for discipline, esprit de corps, and uniformity.” In this context a police agency can regulate officer conduct, even off-duty conduct, that may discredit the agency or negatively impact an officer's ability to do his/her job.
U.S. agencies and administrators do not hold exlcusive claim to such disciplinary problems within the ranks. A January 2010 article in the online version of the London Daily Mail reported a number of British officers disciplined or fired for looking at pornographic website while on-duty. This report was followed by a February report in the online ZDNet UK that Ministry of Justice and Metropolitan Police have been suspended or fired for misuse of Twitter and Facebook accounts. Scotland Yard responded by issuing a guide for officers on the use of such sites. One of the rules is for officers not to identify themselves as police employees, the other is that if they do identify themselves as officers they are to disclaim that their views do not reflect those of the employer. In the U.S. many officers rely on the First Amendment right to free speech and their off-duty status as protection from any job action. This reliance however is often misplaced and is likely moreso in light of the U.S. Supreme Court ruling in Garcetti v. Ceballos, 547 U.S. 410 (2006) which put further limits on a public employees free speech and narrowly defined the contours of that speech.
Police administrators are well advised to adopt a social networking policy if they have not already started to do so. Police officers are advised to keep content unobjectionable at the least but would be better off staying clear of online postings and video rants. The democratization of media use has created a "big brother" of monstrous proportions and it is a trap for the careless officer.
MINNEAPOLIS POLICE DEPARTMENT SOCIAL NETWORKING POLICY
Section 7-119 SOCIAL NETWORKING (12/15/09)I. PURPOSETo establish policy regarding employee use of social networking web sites.
II. DEFINITIONS
Social Networking Websites: Sites which focus on building online communities of people who share interests and activities and/or exploring the interests and activities of others. Examples of social networking websites include: Facebook, MySpace, Friendster, Linked In, Twitter, and sites that allow users to post personal blogs. The absence of, or lack of explicit reference to, a specific site does not limit the extent of the application of this policy.
III. POLICY
The MPD has a duty to protect the reputation of the organization and its employees, as well as guard against liability and potential legal risk. Therefore, MPD reserves the right to monitor these websites, and employees are advised of the following:
Employees should exercise caution and good judgment when social networking online. Employees should be aware that the content of these social networking sites can be subpoenaed and used in criminal and civil trials to impeach the employee’s testimony.
Any individual who can be identified as an employee of the MPD has no reasonable expectation of privacy when social networking online, and is subject to all pertinent City of Minneapolis policies, MPD policies, local, state, and federal laws regarding public information on arrests, investigations, and personnel data.
This policy supplements the City of Minneapolis’ Electronic Communications Policy.
IV. PROCEDURE / REGULATIONS
A. Failure to comply with the following may result in discipline, up to and including discharge:
Where the poster can be identified as an employee of the MPD, any postings involving offensive or unethical content are not permitted.
Employees shall not represent that they are speaking or acting on behalf of the MPD, or that they are representing or presenting the interests of the MPD.
Employees are prohibited from using social networking sites to harass or attack others, including those who work for the MPD.
B. Authorized exceptions to the above regulation include utilizing social networking websites for MPD-approved public relations and official investigative and/or work-related purposes as approved by Police Administration.