Marketing With Social Media: Is It Time to Retire the Concept of the "Workplace?"

| Andrew P. Torrez

For two centuries, intellectual property disputes between employees and employers were guided by a relatively simple principle:  if you did something “in the workplace” – and you didn’t specifically bargain with your employer to keep it – then what you did was “on the clock” and that work product belongs to your employer.

If you’re a business professional or a lawyer reading this blog, chances are that notion seems awfully quaint right about now.  You know that smartphones are ubiquitous in our respective professions, and business gets done 24 hours a day, seven days a week.  That important client email gets answered at midnight on a Saturday from your basement – not at 9 am the next Monday from your office.

Whether our brave new wireless world is a mixed blessing is probably beyond the scope of this blog.  But one of the things we have noted is that the increasing commingling of the “workplace” with “personal” space is blazing new trails in previously settled areas of the law.  We look at another recent development in this area in context after the jump.

Some of these developments may have been predictable; for example, when a CFO discloses insider information over Twitter, we’re not surprised to see that CFO get fired.  But it came as a surprise to us when we learned about the widespread practice of employers requiring new hires to turn over their Facebook passwords upon being hired, as well as the new Illinois law we profiled that was designed to stop it.

And, while we all know that client lists (generated “in the workplace”) are typically considered property of the employer, what about Twitter followers, many of whom may have signed up during the evening, on weekends, or in response to tweets sent from the employee’s home or smartphone?

Or what about Facebook and LinkedIn posts – written in an employee’s off-hours, away from the “workplace” – can a party be required to produce those in discovery?  (Answer:  sort of.)

All of these issues that we’ve previously flagged are part of a larger trend:  that the concept of the “workplace” just doesn’t seem to help answer these sorts of questions any more.  I often write briefs late at night and over the weekend on my personal computer at home, and it’s pretty obvious to me that those briefs are work product, not personal musings.  The fact that those briefs weren’t written in any particular “workplace” just doesn’t seem relevant.

At the same time, all of us do retain some sense of personal privacy and “down time,” where the things we write and say – even when they may relate to our job and/or our employer – are ours.  Where we draw that line is one of the ongoing challenges we face.

LinkedIn squarely straddles that line.  It’s personal, it’s social – but at the same time it is often used as a marketing tool.  LinkedIn stretches from your educational background to your past employers to your current job.  But I think for most of us, the activity of sitting down and typing in our secret password makes that LinkedIn account feel as though it's ours.

I know that Linda Eagle thought so.  She started a financial services and training company called Edcomm back in 1987, and – like many of us – migrated to social media beginning in 2008 by establishing a personal page on LinkedIn.  In 2010, Dr. Eagle sold Edcomm, and was fired by the new owners the next year.  After terminating Dr. Eagle, the new owners of Edcomm had Eagle’s assistant change the password on her LinkedIn account, locking Eagle out of her account.  Edcomm then altered the account so that individuals searching for Dr. Eagle were routed to a LinkedIn page featuring Eagle’s successor’s name and picture but still listing Dr. Eagle’s LinkedIn connections (as well as her awards and recommendations).

Unsurprisingly, Eagle sued Edcomm, alleging, inter alia, that it violated the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030 et seq., which, among other things, prevents unauthorized “hacking” into an account containing personal information and permits a plaintiff to recover any damages resulting therefrom.

Eagle had argued that the loss of her LinkedIn account damaged her reputation as well as cost her potential business by preventing her from responding to messages containing potential opportunities in a timely fashion, including one valued at over $100,000.

Three days ago, a federal judge in Pennsylvania dismissed Eagle’s CFAA claims, holding that Dr. Eagle’s claims of lost “opportunities” were too speculative to constitute harm under the statute.  See Order at 9.  (Eagle’s state law claims -- which include allegations of conversion, unauthorized use of her name, and identity theft -- remain pending.)

So the bottom line is that the CFAA does not protect you from being locked out of an online account taken out in your own name and protected by a personal password unless you can demonstrate a concrete harm – say, defamation, or tortious interference with an existing contract – even if that account is one you use solely outside the “workplace” and on your own "personal" time.

Is it time to retire the concept of the "workplace?"  The Eastern District of Pennsylvania seems to think so.