The Impact of Social Networking Tools and Guidelines to Use ThemBy LaJean Humphries, Published on January 15, 2007
"What's your MySpace?" A law librarian unfamiliar with this phrases isn't just out of touch; she may be unaware of an important phenomenon whose impact is reverberating through the online legal landscape. I can hear you now, "I'm a law librarian not a teenager!" Perhaps so, but it can be argued that you should be using MySpace and other social networking tools. At the very least you should be aware of how your attorneys, clients, and employees are using them. Let's look at some of the uses of MySpace in the law firm environment, ethical and legal considerations, some guidelines for use, and some creative law firm uses of social networking sites.
Even the most staid librarian has probably typed a personal name in Google to see what can be found. Admit it - it's fun to find that old boyfriend, girlfriend, or college acquaintance. (If you "give good Google," just the right amount of information about you will appear when your name is searched on the Internet.) MySpace and similar sites go a little further.
It's not just that MySpace is a major player. Rupert Murdoch's News Corporation bought MySpace for $580 million in 2005. The 'millennials' - generally considered those between 16 and 24 years of age - use sites like MySpace, Xanga, and FaceBook the way that many older people use(d) the telephone, email, coffee shops (and I don't mean Starbucks), and saloons. Social networking sites are a way to communicate and the millennials are totally comfortable in the online environment.
Millennials have grown up with the Internet. They "chat" and "blog" and post pictures of parties and parents and everything else on the Internet. (Actually, I'm told that chat rooms have become passé.) Millennials' lives are public in a way that many older persons find uncomfortable if not dismaying. MySpace, launched in January 2004, is a popular place to share journals, photographs, and intimate details. It's a place to find friends, make connections, present yourself as you'd like to be seen - pretty, witty, brave, sexy, or tough. The social networking sites are "the last unregimented environments for young people." MySpace now requires members to be at least 14 years old and revokes membership if it's obvious from the content that a child has lied about age.
MySpace reportedly had over 116 million users as of December 2006. More social networks are launched every day. For example, investor Jim Breyer is reportedly looking to invest $10 million for a five- to ten-person team to build a social networking site for independent artists to operate a bona fide marketplace. ISPs, entertainment companies, and wireless providers are either building social networking sites or finding a way to integrate social networking and community interactivity into their new and existing sites. Among young people "When you meet someone, the question is not 'What's your number?' it's 'What's your MySpace?'"
The line between public information and private information is rapidly blurring. It can be argued that there is no private information in this day and age. You can't find everything on the Internet but you can find an amazing amount of personal information. On MySpace and similar sites, personal pages are generally available to anyone who registers. FaceBook has separate requirements and restrictions; however, some employers gain access through college student children, employees, etc.
Why should the law librarian care about these social networking sites?
Potential employees use the Internet to get the inside scoop on a future boss. But bosses are also getting the scoop on potential employees. Do you want to hire the young person who lists her minor as "drinking" and says her most overused phrase is "oh wow im getting wasted tonight."? How about the candidate who posts on his web log, "I like to blow things up."? On the other hand, do you really believe everything your teenager says? Taking statements such as those above at face value is highly questionable. If you don't believe the good stuff without verification, why would you believe the negative? According to some reports as many as 50% of employers and 75% of job recruiters concerned about alcohol/drug use, violence, and similar problems check out potential employees on the web.
There have been dozens of articles in recent months about employers using social networking sites such as MySpace and FaceBook to find personal information about job candidates including drinking habits, nudity, general sleaziness, and criminal behavior ranging from shoplifting to violent assaults.
In addition to the social networking sites, employers also use search engines and other Internet sites such as PeopleFinders.com, Local.Live.com (for satellite images of homes), Zillow.com (for real estate information), Feedster.com and Technorati.com (to search for blogs), Opensecrets.org and Fundrace.org (for campaign donations).
Many employers argue that due diligence requires they look up Internet profiles of all job candidates. Researching students is fairly typical among high-tech employers. However, some employers feel the information on social networking sites is of a personal or artistic nature and not appropriate for consideration in determining employment. Would you ask about race, sexual orientation, sexual partners, past relationships, religion, body type, favorite book or movie, or ask to see photo albums in a job interview? Perhaps not, but you can glean this information from a web site. If it's publicly available information should you use it?
Certainly there is growing concern over workplace violence. About 900 work-related homicides occur annually. From 1993 to 1999, 1.7 million people a year were attacked as they worked. If you can determine that a job candidate has a potential for violence or brags about committing violent crimes, shouldn't you find that information?
No law firm wants to be in the position of the pizza shop ordered to pay $175,000 to their deliveryman's rape victim. Not only did this employee have a long history of arrests, he didn't even have a current driver's license! Any kind of background check should have alerted the employer that they were looking at a potential problem employee.
According to the National Association of Colleges and Employers (NACE) more than half of all employers use some kind of online screening technology including social networking sites like FaceBook and MySpace. NACE in their annual survey will be asking employers for the first time if they check to see if potential hires have postings on social networking sites.
Career advisors caution students to be discrete about the information they put on the web. Young people may know that they are just showing off and not realize that an employer will take the posting seriously or question their judgment. Most students simply do not understand that their web postings can hurt their future. It's easier to get rid of a piercing or cover up a tattoo than to get rid of a comment on the Internet.
If you aren't familiar with social networking sites you may not understand or may be put off by the acronyms and slang. Oregon law librarians interpret LOL as Lord's Oregon Laws (compiled and annotated by the Honorable William Paine Lord, Code Commissioner, 1910) not "laugh out loud." WYCM RN and AWGTHTGTTA meant nothing until I found NetLingo's top 20 Internet acronyms every parent needs to know plus 50 more Internet acronyms every parent should know. Yes, the kids are probably ROTFL. During the past few months, however, I've been seeing these acronyms showing up in interoffice emails with increasing frequency.
Ethical and legal concerns
Most firm administrators and managers know quite well what questions you can and can't ask in a job interview. But, increasingly they are making an end run around discrimination laws by searching Google, Yahoo, MySpace, FaceBook, and similar sites for personal information that they would never ask a candidate in a face-to-face interview. Is it ethical? Is it legal?
Numerous reports are appearing of job candidates not being hired and employees being fired because of information found about them on social networking sites. There's even a term for people who get fired for what they put on their web sites: "dooced." This comes from Dooce.com, the blog of Heather Armstrong, who was terminated after writing about her employer on her blog.
Even the social networking sites, which thrive on getting people to reveal everything about themselves, may insist on discretion in-house. Friendster software engineer Joyce Park claims she was terminated for posting publicly available information about the company on her blog, Troutgirl.
Attorney Robert J. Ambrogi raises a number of issues regarding Reed Smith's mid-July firing of attorney Denise Howell, one of the first and most respected legal bloggers. "Denise, bound by a confidentiality agreement, hints at her part-time parenting status as a factor and says her blogging probably was not a factor. To my knowledge, the firm has said nothing. Didn't anyone in management or marketing or PR see that this would be a public-image nightmare?" Read Ambrogi's full report at http://legalblogwatch.typepad.com/legal_blog_watch/2006/07/bloggers_firing.html.
The House of Representatives held hearings in July 2006 regarding social networking websites. Such sites are new enough that there is not a body of case law regarding their use. Proposed legislation (H.R. 5319) addresses the social networking sites in terms of child protection rather than employment discrimination. Nonetheless, the wise law librarian:
Ø Will be familiar with the likes of MySpace, Friendster, and FaceBook.
Ø Consult with a qualified employment lawyer about the use of such sites for employee background screening.
Ø Develop appropriate hiring procedures that address background screening and record checks.
There are legitimate, responsible companies that provide employee background checks. There are also companies that provide background screenings using questionable methods and resources. Before hiring any company to provide this service for your law firm, due diligence is required. You can either perform employment screening in-house or use a vendor who will provide the service in a convenient, cost-effective, and legally compliant manner. You can help your firm locate reputable services.
Litigation and investigation
Litigation firm investigators are using social networking sites to find information about parties to litigation, witnesses, and even opposing counsel. Many investigators say they have an obligation to use any legal tool to find all the information they can. With only a maiden name, you may find a person's current name by searching Classmates.com. Dating sites such as Match.com or Jdate as well as sites like MySpace and Friendster provide a treasure trove of personal details. Some investigators search children's names to find information about the parents. The over-50 crowd is using Eons much as youngsters use other social networking sites - to find compatible people with similar interests in body and health, fun or love, travel, learning, money or careers.
A Portland woman sued Yahoo for $3 million in Multnomah County Circuit Court (Oregon) alleging that her ex-boyfriend placed fake profiles under her name in a section of Yahoo, including nude photographs and personal contact information at work. The case was dismissed on the grounds that the Telecommunications Act of 1996 says that Internet companies cannot be held legally responsible for material published on a website by a third party.
Have you ever seen a firm-wide email seeking "Need help advising a client on a business (as opposed to individual) garnishment issue where we represent the garnishee." or "Who's the UCC article 2 expert?" or "Anyone have experience challenging (administratively or judicially) a residential foreclosure on an FHA or RHS loan?" If attorneys in your firm are frequently polling their colleagues for experts or advice, a private version of MySpace or LinkedIn might well be a powerful tool. People tend to rate themselves fairly accurately in terms of skill level. Not many people are going to rate themselves high and risk being called upon for a simultaneous Japanese-English translation session if their language proficiency is low.
Firms are developing in-house skills and expertise databases or purchasing knowledge management programs to leverage their own intellectual capital. It doesn't require much imagination to see the value in easily being able to find the attorney or staff person with a personal relationship to the CEO of a multi-national company, the person with fluency in various languages, or the attorney who clerked for a certain judge. Appropriate pictures, work samples, references, and skill ratings could well make a FirmSpace the hottest and most valuable real estate on your intranet. You probably already have the skills and staff to develop and populate your firm's own version of MySpace.
Originally, the library staff at Schwabe Williamson and Wyatt created social networking-type directories on the firm intranet to manage attorney continuing education credits, language skills, job postings, notaries, and similar lists. In less than a year these directories have received over 10,000 hits! New employees are excited about being able to list their own language skills, travel experiences, court admissions, and more. Security features prohibit users from editing any but their own profiles.
Do you give good Google?
If one can find your firm resume, a few articles you've written, a presentation you gave at the last AALL conference, and some of your civic activities online, the answer is a resounding "Yes!" If not, you need to join the 21st century. Use your MySpace. Get connected. It's time to discover new people, places, and possibilities and MySpace may be just the place to do so.
Popular Social Networking Sites
BlackPlanet, http://www.blackplanet.com/ and its sister site, MiGente, http://www.migente.com/
For more information on social networking sites:
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For information on workplace violence:
National Crime Victimization Survey, Bureau of Justice Statistics.
Pearson, George W. "Controlling the Risk of VIOLENCE in the Retail Workplace." Risk Management 52(11) (November 2005): 48.
Workplace Violence Issues in Response. Critical Incident Response Group, FBI (2002).
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 Hansell, Saul. "Making Friends Was Easy. Big Profit Is Tougher." The New York Times. April 23, 2006.
 "Losing the Job Student Cyber Speech Can Come Back to Haunt." Pittsburgh Post Gazette. June 15, 2006, p. B6.
 Finder, Alan. "MySpace shuts doors to workplace - more companies check social sites for insight into candidates' lives." Houston Chronicle (June 11, 2006): 12.
 Morton, Joseph. "Pizza shop ordered to pay deliveryman's rape victim." Omaha World Herald (September 5, 2001): 3b.
 Conlin, Michelle. "You Are What You Post." Business Week (March 27, 2006): 52.
 Vara, Vauhini. "Covering your tracks is tricky in online world." The Wall Street Journal (July 7, 2006).