Employer attempts to gain access to an employee’s social media accounts are increasingly an issue in the workplace and a subject of dispute in employment law litigation. In a recent Eastern District case, Rodriguez v. Widener University, 2013 U.S. Dist. LEXIS 84910 (E. D. Pa. June 17, 2013) (Padova, J.), the Court considered the issue where the Plaintiff was both a student and employee of the University. The University accessed the Plaintiff’s Facebook account and printed images that he had posted. Thereafter, the Plaintiff was interrogated regarding emails and Facebook postings and was temporarily suspended as he was “perceived to be a threat to the community” because he displayed images of weapons on his Facebook page; the University concluded that it was necessary for Plaintiff to be involuntarily evaluated regarding his mental health. Plaintiff filed numerous causes of action which were dismissed; however, the Court found the Plaintiff could proceed with his claims pertaining to social media intrusion. The Court permitted Plaintiff to proceed with a claim under the Electronic Communications Protection Act (“ECPA”), 18 U.S.C. §§ 2511, 2520, which provides for a civil action where action is taken to intentionally intercept, endeavor to any wire, oral, or electronic communication and permits the recovery of liquidated or actual damages, punitive damages, and equitable relief; and a claim under the Stored Communications Act (“SCA”), 18 U.S.C. § 2701, which provides for a civil action for intentionally accessing without authorization electronic communication service.
In Rodriquez, the Plaintiff alleged that the Defendants’ use and access of his Facebook postings constitutes an unauthorized acquisition of stored electronic communications. The Court concluded that the ECPA and SCA claims may proceed based on the allegation that Defendants improperly accessed Facebook images. In so doing, the Court rejected the Defendants’ argument that the Facebook postings were accessible to the general public and/or forwarded to certain Defendants by concerned students who had equal and permitted access to Plaintiff’s Facebook postings. The Court also found no legal basis to conclude as a matter of law that the Facebook images are generally available to the public.
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