PROTECTING YOUR SOCIAL MEDIA FROM USE AGAINST YOU
This NBPC Legal Advisory is being distributed to help bargaining unit employees understand the risks inherent in maintaining and using a social media account such as Facebook, and, to help members better understand what actions they can take to protect their account from use against them. The NBPC and its Locals have seen numerous instances where the Agency (both management and internal investigators) have either attempted to acquire, or have successfully acquired, social media postings of employees, and have used those postings as evidence in support of disciplinary actions.
The laws regarding acquisition of your social media postings are too numerous and complicated to recite fully here. In short, you must assume that management could possibly discover what you post, even when your security settings are set to, “friends only.” Examples of such posts might be a political article or commentary, verbal or pictured jokes, or, advocacy or approval of “morally questionable” conduct. Even if you removed such a post, you might be concerned if one of your “friends” who saw the post retained a copy and provided or vividly described that post to management or even the media. Keep in mind it is impossible for you to prevent any one of your “friends” from printing, supplying or describing your posts to any one person. In short, you should take care to make sure that posts made under your name couldn’t be construed to hold you in violation of the CBP Standards of Conduct.
The NBPC strongly recommends that employees do not post regarding work-related matters to which the employee has a nexus. For example, describing how much fun you had tracking a group that led to a drug seizure should definitely not be made. At the same time, you should also not post about such an event, even only when you heard about that event through work. In short, if the posting has a connection to something you learned of, or were involved, in because of your work, or could be construed that your knowledge of the event was because of your employment, don’t post it!!! Such a post is likely also discoverable through subpoena by a defense attorney for the persons arrested in that event.
There are, of course, exceptions to these rules, but the purpose of this Legal Advisory is not to try and provide you justification for your posting, but rather, instilling in you the mindset that you should really think about your post and its impact on your job before you make the post. Because the First Amendment potentially protects your posts, it is virtually impossible to provide you a framework in this Advisory of how to evaluate each and every post you will contemplate making. Also, keep in mind, analysis of First Amendment protection typically provides a balancing test of your commentary upon a matter of public concern compared to your employer’s 1) interests in avoiding disruption in the workplace, and, 2) furthering its mission as a law enforcement entity. The Supreme Court already made clear long before Facebook was really popular in the 1994 case Waters v. Churchill:
When someone who is paid a salary so that she will contribute to an agency’s effective operation begins to do or say things that detract from the agency’s effective operation, the government employer must have some power to restrain her.
That restraint is always in the form of a disciplinary action, so use your best judgment over what you really need to post. If you have that second thought before hitting the “post” button, your best choice is think more about what might happen if your PAIC or an OPR investigator saw that post. While it may be possible that you ultimately prove that a social media posting of yours was lawfully protected, or, illegally obtained as evidence against you, keep in mind that finding is typically made by an arbitrator or a judge after you already suffered a consequence such as removal from service or suspension without pay. The NBPC therefore strongly recommends that you restrain yourself before CBP does!