Government Use of Social Media The Legal Issues Presented to the Westchester Municipal Planning Federation October 24, 2011 David A. Menken

The Two Big Issues Free Speech and First Amendment Issues Compliance with Legal Requirements

Free Speech and the First Amendment "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Application of First Amendment to Local Government - Gitlow v. New York (US Supreme Court1925) Application to Government Use of Social Media   Limitations on Speech by the Public Limitations on Speech by Government Employees

Limitations on Speech by the Public Traditional public forum A place which by tradition has been devoted to public assembly, such as a park, sidewalk, in front of a government building. These are permitted substantial leeway from a control perspective. Designated public forum A specific place open for public discourse, such as a public board meeting. Government restriction expected, but it must be narrowly tailored to serve a significant government interest and leave open a sizeable channel for communication. Non-public forum A places which traditionally is not open to the public, such as a school, jail, hospital. Government may impose content-based restrictions if they are reasonable.

Appropriate Restrictions on the Public There must be a compelling government interest to restrict participation. There should be a "policy" to provide for orderly public participation. There should be a neutral moderator who can maintain some level of control.

Restrictions on Government Employees Key question: whether restriction on a government employee's post is permitted by the First Amendment. General Rule: Government employees have diminished First Amendment rights Parameter: Is the post regarding a topic of government concern?

Models for Managing Content by the Government Strict Internal Controls One government site, with one person or group responsible for all postings. Model 2 Distributed Control Control is distributed to several groups within the government, but on one site, with one gatekeeper Model 3 No internal controls Each department has its own site, subject only to generalized government policy, and staff has un-moderated use of social sites.

Restrictions on Government Employees Key question: whether restriction on a government employee's post is permitted by the First Amendment. General Rule: Government employees have diminished First Amendment rights Parameter: Is the post regarding a topic of government concern?

Models for Managing Content by the Government Source: New York State Archives - Records Advisory: Preliminary Guidance on Social Media," 5/24/2010. Model 1 Strict Internal Controls One government site, with one person or group responsible for all postings. Model 2 Distributed Control Control is distributed to several groups within the government, but on one site, with one gatekeeper Model 3 No internal controls Each department has its own site, subject only to generalized government policy, and staff has un-moderated use of social sites.

Records and Open Meetings Laws Freedom of Information Act Open Meetings Law Record Retention Laws Personal Privacy Protection Law

Freedom of Information Act Requirement to Make Records Available - Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall … Public Officers Law §89(3)(a) Definition of a "Record“ - "Record" means any information kept, held, filed, produced or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to … computer tapes or discs….. Public Officers Law §86(4) Obligation to Produce - Nothing in this article shall be construed to require any entity to prepare any record not possessed or maintained by such entity…. When an agency has the ability to retrieve or extract a record or data maintained in a computer storage system with reasonable effort, it shall be required to do so.

Legal Issues for FOIL Is content on a social media site a "record" as defined in FOIL? State of the Law - "Maybe" FOIL is to be construed "liberally" Settled law: government data is subject to FOIL even if not in "physical form“ – e.g., email! Is this an Acceptable Presumption: Email/SMS and Social Media content should be treated the same?

Record Retention Definition of a "Record" is Different - Broader "Record" means any book, paper, map, photograph, or other information-recording device, regardless of physical form or characteristic, that is made, produced, executed, or received by any local government or officer thereof pursuant to law or in connection with the transaction of public business. Arts and Cultural Affairs Law §57.17(d)(4)

What the Law Requires It shall be the responsibility of every local officer to maintain records to adequately document the transaction of public business;   to retain and have custody of such records for so long as the records are needed for the conduct of the business of the office; to adequately protect such records; to pass on to his successor records needed for the continuing conduct of business of the office. Arts and Cultural Affairs Law §57.25 In towns, records no longer needed for the conduct of the business of the office shall be transferred to the custody of the town clerk for their safe- keeping and ultimate disposal. Arts and Cultural Affairs Law §57.25(a)

Legal Issues for Records Retention Issue: Is social media content a record for "record retention laws"? As with FOIL, to date no case law or opinions as to whether social media content qualifies. According to the NYS Archives: "Because the technology is new, it’s not yet clear to what extent traditional records retention and disposition practices apply to social media content." http://www.archives.nysed.gov/a/records/mr_social_media.shtml Washington State considers posts to social networking to be Public Records. North Carolina also considers posts to be Public Records: "Posts and comments to and from me, in connection with the transaction of public business, is subject to the North Carolina Public Records Law and may be disclosed to third parties." White Plains' information policy makes no mention of social media

Open Meetings Law Open Meetings Law §103(a): “Every meeting of a public body shall be open to the general public…” [exception for executive sessions].

Legal Issues for Open Meetings Law When do interactions of Public officials on social media sites constitute meetings in accordance with the NY Open Meetings Law. What if a majority of a public body's members post on a local government's social media site on a matter before them? No case law - No legal opinions

Personal Privacy Protection Law NYS enacted the Personal Privacy Protection Law (Public Officers Law, Art. 6-A) in 1984 to recognize public concern about privacy and the relationship between government and the people. The law is intended to protect your privacy by regulating the manner in which the state collects, maintains and disseminates personal information about you.

Generally, the Personal Privacy Protection Law: Grants rights of access to a person for his/her records that are maintained by state agencies; Permits a person to correct or amend information if he/she believe that it is inaccurate or irrelevant; Prohibits an agency from collecting personal information, unless it is "relevant and necessary" to a purpose of the agency that must be accomplished by law; Requires an agency, when it seeks personal information, to tell the target why the information is being collected, where it will be kept, and how it will be used

It is possible that a government's use of social media tools will result in the creation of records subject to the requirement s of the Personal Privacy Protection Law. Example: Cookies left on a person’s computer! To date, no law on this.

What About Service Providers' Policies? Are the providers' terms of service compatible with New York law? What are the site conditions on use and access privileges? Who owns the data? What is the potential liability to the provider? What are the providers' terms with respect to venue and jurisdiction?

Facebook – among others - has Amended Terms for State and Local Governments Dispute Resolution Venue (per standard terms, venue would be Santa Clara County, California) Governing Law (per standard terms, California law would apply) Indemnifications (per standard terms, government pays Facebook’s legal fees) Disclaimer Requirements

Local Governments Should Have Social Media Policies! Which sites can be used What types of information and opinion are to be included/excluded Who can post Use of a moderator/gatekeeper Policy for deleting material which is spam, off-topic, abusive, profane, or violates privacy or contains confidential information Policy for FOIL production Policy for archiving Acceptable Use Policy for Public and Government Users Privacy Policy

If you have any questions please ask now, or contact me: David Menken   David Menken McCarthy Fingar LLP 11 Martine Avenue White Plains NY 10601 914-385-1068 dmenken@mccarthyfingar.com