Employers, Schools Snooping on Social Media

of Employees and Students

Reyhan Saritoprak

REICHERT v. ELIZABETHTOWN COLLEGE

Background
Christopher J. Reichert (Plaintiff) informed College about
disabilities (ADHD & Learning Disabilities)
College (Defendant) required him to take difficult classes.
Reicherts attempt to drop a course & argument
Dr. Tyminski, chairman of education, ordered a safety
patrol to protect the professor and was a threat to the
school and should be expelled
The Colleges provost, Dr. Traverso, overruled

REICHERT v. ELIZABETHTOWN COLLEGE

Dr. Traversos and other faculty members devised a multi-part plan to
force Reichert from the College. Not providing Reichert further
accommodations, spreading rumors about him, and advising faculty
members to make a record of all of Reicherts inappropriate
behaviors.
Hired a computer investigation service to monitor Reicherts e-mail
account.
November 11, 2008: meeting to discuss removing Reichert.
November 23, 2009: Dean Calenda sent Reichert an e-mail indicating
she was concerned about his well-being, and that unnamed
campus community members had observed noticeable extremes in
his behavior.

REICHERT v. ELIZABETHTOWN COLLEGE

Reichert suffered a seizure and was unable to attend
disciplinary hearing
Reichert would now have to reschedule his disciplinary
hearing and attend two other hearings before being
allowed to return.
Reichert was told he would have to face an academic
integrity hearing after being accused of plagiarism, and
another hearing regarding his professional competency to
become a teacher.

REICHERT v. ELIZABETHTOWN COLLEGE

Claims
1. Section 1983 Claim
State Action: there is a sufficiently close
nexus between the State and the challenged
action that seemingly private behavior may be
fairly treated as that of State itself.

REICHERT v. ELIZABETHTOWN COLLEGE

The Court followed the three tests articulated by the Third
Circuit Court of Appeals for determining whether state
action exists:
1) whether the private actor exercised powers that
are traditionally the exclusive prerogative of the state
2) whether the private actor has acted with the help of
or in concert with state officials
3) whether the state has insinuated itself into a position
of interdependence with the acting party that it must
be recognized as a joint participant in the activity.

REICHERT v. ELIZABETHTOWN COLLEGE

Decision:
The Court acknowledged that a private university can
be a state actor where the state has extensive statutory
and regulatory authority over it.
Court found that Reichert's allegations did not suggest a
level of control for charge of its actions to the state.
The Court dismissed Reichert's section 1983 claim.

REICHERT v. ELIZABETHTOWN COLLEGE

2. Section 1985 Claim
To state a claim under Section 1985 a plaintiff must allege:
1) A conspiracy
2) Motivated by a racial or class- based discriminatory
animus designed to deprive, directly or indirectly, any
person or class of persons of the equal protection of the
laws
3) An act in furtherance of the conspiracy
4) An injury to person or property or the deprivation of
any right or privilege of a citizen.

REICHERT v. ELIZABETHTOWN COLLEGE

Decision:
Reichert alleges that the individual defendant held at
least one meeting for the purpose of unlawfully
removing him from the College
Alleged his Section 1985 Claim

REICHERT v. ELIZABETHTOWN COLLEGE

3. ECPA Claim
Electronic Communications Privacy Act
The ECPA provides a right of action against any person
who, intentionally intercepts, endeavors to intercept or
procures any other person to intercept or endeavor to
intercept any wire, oral, or electronic communication

REICHERT v. ELIZABETHTOWN COLLEGE

Decision:
Reichert did not allege facts suggesting that the College
accessed his e-mail at the time of transmission.
ECPA claim dismissed

REICHERT v. ELIZABETHTOWN COLLEGE

4. PWESA Claim
Pennsylvania Wire Tapping and Electronic Surveillance
Act
Permits lawsuits by persons whose wire, electronic or
oral communications are unlawfully intercepted.
Intercept requires contemporaneousness

REICHERT v. ELIZABETHTOWN COLLEGE

Decision:
Reichert did not allege contemporaneous interception
PWESA claim dismissed

REICHERT v. ELIZABETHTOWN COLLEGE

5. CFAA Claim
Computer Fraud and Abuse Act
Provides a cause of action against whoever,
intentionally accesses a computer without authorization
or exceeds authorized access, and thereby obtains
information from any protected computer
The conduct must involve one of the factors set forth in
subclauses

REICHERT v. ELIZABETHTOWN COLLEGE

Decision:
Reichert does not provide conduct that would satisfy
any of the required subclauses
CFAA claim dismissed

REICHERT v. ELIZABETHTOWN COLLEGE

6. State-Law Invasion of Privacy Claim
Reichert lodges a common law invasion of privacy
claim against the College for accessing his e-mail.
Allege a highly offensive and intentional intrusion upon
private concerns, and that the intrusion caused mental
suffering, shame, or humiliation

REICHERT v. ELIZABETHTOWN COLLEGE

Decision:
Reichert alleged no facts to demonstrate that he
experienced mental suffering
Invasion of privacy claim dismissed

Employers asking for Social Media Passwords

Pietrylo
2009 from the District of New Jersey.
Brian Pietrylo and Doreen Marino
created a MySpace page for the
purpose of airing grievances against
their employer in a more secure
environment
Two managers learned of the site
and requested a password from an
employee. Eventually, the
employee gave them her login
information.

v.

Hillstone Restaurant Group

The central issue at trial was
whether the employee was
coerced into giving the managers
her log-in ID and password
information to permit them to enter
the site.
The court found that the managers
had not been authorized to enter
the site, and refused to overturn
the verdict.

Employers asking for Social Media Passwords

Maryland, Illinois, California, Delaware, Michigan, New Jersey
Washington- July 28, 2013: Senate Bill 5211, employers are
prohibited from asking for social media passwords.
There are a few exceptions. Employers may be granted access,
but not be given the actual passwords, when making a
factual determination in the course of conducting an
investigation.
The purpose of the internal investigation must relate
to work-related employee misconduct, or
instances when workers may be leaking
confidential information.

Student Rights
In the case of G.C. v. Owensboro Public Schools, the court ruled
2-1 that a student whose cellphone was seized for violating a notexting-in-class ban had a viable Fourth Amendment claim
against the school, because the teacher who took the phone
read four of the students text messages without lawful
justification:
Using a cell phone on school grounds does not
automatically trigger an essentially unlimited right
enabling a school official to search any content stored on
the phone that is not related either substantively or
temporally to the infraction.

Cyberbullying
Facebook, Myspace and other sites have
been the scene of cyberbullying and online
predation. But at the same time this
technology allows people to connect with
others they might never have met and form
meaningful relationships.

Discussion Questions
1. To what extent should students have privacy rights?
2. How do we balance these harms and benefits, reducing the
one and increasing the possibility of the other?
3. Is it ethical for employers to ask for employees Facebook
passwords?
4. Do you think it should be legal for employers to ask for
passwords?
5. Will the online world (social media) lead to greater fairness
and overcome our differences, or will we lose the ability to
engage with others?

Reference List
"Unavoidable Ethical Questions About Social Networking." Unavoidable Ethical Questions About
Social Networking. Web.
<http://www.scu.edu/ethics/publications/submitted/social-networking.html>.
Ballman, Donna. "Can Your Employer Demand Your Social Media Passwords?" AOL Jobs. 30 Jan.
2013. Web.
<http://jobs.aol.com/articles/2013/01/30/employer-social-media passwords/>.
Court Decision:
http://www.paed.uscourts.gov/documents/opinions/11d0859p.pdf
LoMonte, Frank. "Student Press Law Center." Student Press Law Center RSS. 26 May 2013. Web.
<http://www.splc.org/wordpress/?p=5144>.
Ramasastry, Anita. "Can Employers Legally Ask You for Your Facebook Password When You Apply
for a Job? Why Congress and the States Should Prohibit This Practice." Verdict. 27 Mar.
2012.Web.
<http://verdict.justia.com/2012/03/27/can-employers-legally-ask-you-for-your-facebookpassword-when-you-apply-for-a-job>.
Soper, Taylor. "Its Now Illegal for Employers to Ask for Your Social Media Passwords in Washington."
GeekWire. 28 July 2013. Web.
<http://www.geekwire.com/2013/illegal-employers-social-media-passwords washington/>.