Policies to include in employee handbooks

Maintaining current employee handbooks is a critical protection for Maryland employers. Here is a short article written in October 2012 by my colleague, Cheryl Brown, listing some recent developments in the law that employers should consider adding to their employee handbooks as we move into the new year.

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Maryland Court of Special Appeals upholds verdict in favor of Interactive Digital Solutions

The Maryland Court of Special Appeals, in a published opinion issued on December 20, 2012, upheld a jury verdict that was entered by the Circuit Court for Howard County in June 2011 in favor of our firm’s client, Interactive Digital Solutions.

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Filed under Contracts, News and Events, Torts, Verdicts and Decisions

Congratulations to Magistrate Judge Grimm on approval of his judicial nomination by the Senate Judiciary Committee

The Senate Judiciary Committee on June 7 approved, by voice vote, the nomination of Chief U.S. Magistrate Judge Paul W. Grimm to a federal judgeship the U.S. District Court for the District of Maryland.  If confirmed by the full Senate, Judge Grimm will succeed Judge Legg.  Judge Grimm has written extensively on the admissibility and discovery of electronically stored information (ESI).

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Prosecution of an Occupy Wall Street protestor may lead to clarification of privacy rights for social media accounts

The Twitterverse has been abuzz about an ongoing criminal prosecution in New York City of an Occupy Wall Street protester named Matthew Harris, and his effort to stop the government from obtaining information from his Twitter account.  Mr. Harris was one of hundreds of protesters arrested during a march across the Brooklyn Bridge. He was charged with disorderly conduct for allegedly walking in the street instead of on the sidewalk. Many of the protesters, including Mr. Harris, maintain that the police directed them off the sidewalk and into to the street.   The case has received a great deal of attention recently because the District Attorney subpoenaed Twitter records related to Mr. Harris’s account, in the hope that his tweets might refute his claim that the police directed him to move onto the roadway. Harris moved to quash the subpoena.

There isn’t a lot of reported case law on whether people have a legitimate expectation of privacy in information that they voluntarily post on social media sites such as Facebook or Twitter, but the limited number of reported court decisions so far have generally found little or no privacy protection for a social media site user.  It was not entirely surprising, therefore, that the judge in Mr. Harris’ case declined to quash the subpoena, finding that Mr. Harris lacked standing to oppose a subpoena directed toward Twitter.  The judge reasoned that Twitter, not Harris, owns any information that Harris posted on his Twitter account, because the Twitter terms of service grant Twitter a license to distribute all tweets.

The denial of the motion to quash that was brought by Mr. Harris didn’t end the matter, however, because Twitter then filed its own motion to quash the subpoena.  Twitter argued in its motion that, despite the license rights that Twitter users grant to Twitter, the users themselves “own” their posts under Twitter’s terms of service. Twitter also argued that the Stored Communications Act allows users to challenge requests for their material, and that federal law requires a warrant (not just a subpoena) to access users’ communications. The distinction is important because warrants require probable cause, while a subpoena may be issued if authorities merely have a supportable belief that they are likely to uncover relevant information through issuance of a subpoena.  A number of privacy organizations, including the ACLU, the Electronic Frontier Foundation, and Public Citizen, have now filed their own submissions with the court.

Although this case is only in the pre-trial stage, the high visibility that it has garnered and the efforts by multiple organizations to use it as a vehicle for highlighting these privacy issues, mean that this could end up being an important step in the process of sorting out privacy rights of social media users.

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Filed under News and Events, Privacy, Social Media

NLRB issues memo on illegal employee social media policies

The National Labor Relations Board on May 30 issued a memorandum from its acting general counsel, giving detailed examples of company social media policies that the NLRB may find to interfere with protected employee rights under the National Labor Relations Act.  The memorandum can be downloaded here.

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May 30, 2012 · 9:23 pm

Trial Authentication of Social Network Evidence in Maryland

Here’s a quick Maryland state court trial practice review of the requirements for authenticating evidence that is obtained from online social network postings: The Maryland Court of Appeals in 2011 issued its decision in Griffin v. State, a case in which a criminal defendant was convicted of shooting a bar patron.  During trial, the State sought to introduce the defendant’s girlfriend’s MySpace profile to demonstrate that, prior to trial, the defendant had allegedly threatened another witness called by the State.  The printed pages offered into evidence contained a MySpace profile in the name of a pseudonym, describing a particular woman by age and birthday, and with a photograph of an embracing couple.  The printed pages also contained the following statement:  “FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STICHES!! U KNOW WHO YOU ARE!!”  When the defendant’s girlfriend was called to testify at trial, she was not asked about the pages allegedly printed from her MySpace profile.  Instead, the State attempted to authenticate the pages as belonging to the girlfriend through the testimony of a police officer, who would testify to how he downloaded the information from MySpace.  Among other objections, the defense objected to admission of the pages by arguing that the State could not sufficiently establish a connection between the profile and posting, and the person who allegedly posted the information.   Outside of the presence of the jury, the police officer provided testimony regarding why he believed the subject MySpace profile information was posted by the girlfriend/witness.  When the trial judge indicated that he would permit the officer to testify in support of authentication of redacted pages from MySpace, defense counsel agreed to a stipulation to what the officer would say in testimony, in lieu of the officer testifying, and counsel preserved his objection to admissibility.  The intermediate Court of Special Appeals upheld admission of the evidence, but the Maryland Court of Appeals overturned that ruling.

The Court of Appeals found that the printed MySpace profile pages were not properly authenticated pursuant to Md. Rule of Civ. Proc. 5-901, holding that there were insufficient “distinctive characteristics” on this particular MySpace profile to authenticate the printout.  The court was especially concerned that someone other than the girlfriend/witness might have created the MySpace account, and posted the “snitches get stitches” comment.  The court explained that “[t]he potential for abuse and manipulation of a social networking site by someone other than its purported creator and/or user leads to our conclusion that a printout of an image from such a site requires a greater degree of authentication than merely identifying the date of birth of the creator and her visage in a photograph on the site in order to reflect that [the girlfriend/witness] was its creator and the author of the ‘snitches get stitches’ language.”  In a footnote, the court took pains to distinguish authentication concerns that it had with regard to social network sites from the authentication issues attendant to emails, instant messaging, and text messages.  The court opined that these types of electronic communication differ significantly from those involving an online social network profile, because email, IM and text messages are sent directly from one party to one or more intended recipients, rather than being published broadly.  The court also made clear that it was not suggesting that printouts from social networking sites should never be admitted into evidence, and suggested that avenues of authentication “worthy of exploration” include asking the purported creator whether she created the profile and if she posted the subject information, searching the computer of the purported creator to examine its internet history, or obtaining information directly from the social networking site to link the profile to the purported creator.

The Griffin case establishes significant hurdles that must be overcome by any litigant wishing to authenticate and admit information from an online social network.  In conducting discovery and developing trial strategy, counsel should consider if it is feasible to directly question a purported creator of online content as to whether she created the subject content.  Obviously, this would not be practical in most criminal cases, but may solve the problem in many civil cases.   In either type of case, counsel may wish to strongly consider seeking an order permitting search of the purported creator’s computer hard drive and internet browser history, if the online information is important enough to justify the cost of following this avenue toward authentication.  Finally, in an appropriate case, a party may decide to undertake the daunting challenge of seeking user information directly from a social networking site, though the practical constraints on doing so are often significant.  In light of Griffin, it is not sufficient to walk into court with a printout of online social network content, and rely solely on the fact that the page contains information that appears to identify the “owner” of the page as the purported creator of the content.  The Court of Appeals has determined that concerns about whether third parties may have posted information while posing as the purported creator of the content outweigh the probity of the kind of identifying personal information that was at issue in the Griffin case.

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Court of Appeals rules that Maryland must recognize valid out-of-state same-sex marriages

On May 18, 2012, the Maryland Court of Appeals issued a decision in the case of Port v. Cowan, and held that valid out-of-state same-sex marriages will be recognized as valid in Maryland.  The two parties to the case, Jessica Port and Virginia Anne Cowan, were married in California in 2008.  They separated two years later, and Port ultimately filed a divorce complaint in Maryland.  The trial court denied the request for a divorce, finding that their same-sex marriage was not valid, and was contrary to the public policy of Maryland.  In its opinion, the Court of Appeals reasoned that, for purposes of application of Maryland’s divorce laws, a foreign state judgment should be enforced and honored if it is not statutorily prohibited in Maryland, and is not repugnant to Maryland public policy.  The court noted that the threshold for “repugnancy” in this context is very high, and that Maryland statutory law does not expressly state that foreign same-sex marriages are void. The Court reviewed Maryland statutes and executive branch policies, and interpreted them to demonstrate that recognition of valid foreign same-sex marriages is consistent with Maryland public policy. Therefore, the Court held that Maryland courts have the power to adjudicate divorce actions between same-sex parties that are validly married in another state.

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Filed under Conflics of Law, Divorce and Family Law