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Watch your Wi-Fi! Bloggers: Employers Beware!

August 2, 2005

WATCH YOUR WI-FI!

A Florida man, Benjamin Smith III, 41, was recently charged with unauthorized access to a computer network, a third-degree felony, for using someone else's wireless Internet network.

According to police, Smith admitted using the Wi-Fi signal from the home of Richard Dinon, who had noticed Smith sitting in an SUV outside Dinon's house using a laptop computer.

The practice is so new that the Florida Department of Law Enforcement doesn't even keep statistics, according to the St. Petersburg Times, which recently reported on Smith's arrest.

Although innocuous use of other people's unsecured Wi-Fi networks happens, others may use Wi-Fi networks illegally -- to traffic in child pornography, steal credit card information and send death threats.

While unauthorized use can be prevented with encryption software or using passwords, many Wi-Fi users either don’t have the know-how, the interest, or the time to use those features. The good news about Wi-Fi is how easy it is to use it. The bad news about Wi-Fi is how easy it is for others to use it. As in most everything else, sensible precautions are worth using.

BLOGGERS: EMPLOYERS BEWARE!

Technology is forever changing the workplace. Since the advent of email and the World Wide Web, employers have been trying to keep up with the fast pace of information. However, a new and controversial practice, known as "Blogging", is affecting more and more employers. "Blogging" is the process of maintaining a Web Log. It is a relatively recent trend which is growing at an exponential rate. Today over 10 million Blogs can be found on the Internet. A Web Log, or "Blog," is similar to a Web site with a few key differences. Blogs are very simple to create and maintain, and are generally more interactive than Web sites. Blogs usually consist of a diary and commentary by the author, as well as a "message board" where visitors can post comments. Blogging has become a common outlet for employees to vent their frustrations about jobs, companies, individual employers, and even customers.

Employers face a dilemma when dealing with Blogging employees. From one perspective, Blogs can seriously harm a company. Employee Blogs, for example, could expose employers to suits for libel and harassment. Employers must also be concerned with employees revealing trade secrets through a Blog. Blogs are often used by employees to insult or ridicule employers, causing embarrassment. Conversely, employers may be reluctant to violate the privacy of their employees, or to act as a censor by demanding that employees shut down Blogs they’ve created.

Employee operated Blogs often reflect badly on employers or companies. In 2004, a Delta Airlines flight attendant, Ellen Simonetti, was fired for posting "inappropriate" images of herself in her Delta uniform on her Blog. In 2003, a Microsoft employee posted pictures on his Blog, which showed Apple computers being transferred at a Microsoft loading dock. Douglas Roberts, an employee at Los Alamos National Laboratory "blasted management [at the laboratory] as incompetent," on his Blog. In light of these incidents, employers may seriously consider limiting or forbidding their employees from maintaining Blogs.

Companies who do react to embarrassing employee Blogs, however, face a potential backlash from customers, other employees, and even the dismissed employee in response to what may be seen as arbitrary censorship. After being fired from Delta for Blogging, Ellen Simonetti filed a wrongful termination suit with the Equal Employment Opportunity Commission claiming discrimination. Delta also faced a customer backlash, as people submitted entries on Simonetti’s message board vowing never to fly Delta again. Similarly, when Waterstone’s (a United Kingdom based book store) fired an employee as a result of his Blog, many customers promised to take their business elsewhere.

Interest groups are active in attempting to protect the rights of Bloggers. Groups such as "The Committee to Protect Bloggers," and "Bloggers Without Borders" attempt to motivate Bloggers to stand up for their rights. Other Blogs advertise a "Bloggers Bill of Rights" in an attempt to claim what they call "basic rights" for all Bloggers. The "Bill of Rights" provides:

    1. If an employer wishes to discipline an employee because of his/her Blog, it must first establish clear-cut Blogging policies and distribute these to all of its employees.
    2. Blogging employees shall be given warning before being disciplined because of their Blogs.
    3. NO ONE shall be fired because of his/her Blog, unless the employer can prove that the Blogger did intentional damage to said employer through the Blog.

Actually, Bloggers have fewer rights than one might think. For the most part, Blogging is no more protected than any other off-duty activity. Employers of at-will employees maintain the right to fire an employee at any time, for any reason. Bloggers are not protected by the First Amendment because they are employed by a private entity, not a governmental entity. Some Federal employees, however, may enjoy protected speech if what they circulate could be considered "of public concern." And union contracts may protect employees’ off-duty activities, or in some cases mandate arbitration before dismissal.

Some companies, such as Sun Microsystems, encourage employees to Blog by providing them with space to set up individual Blogs. Other companies have written extensive policies banning Blogs. Nonetheless, employers ought to be wary of encouraging employees to Blog freely. Encouraging Bloggers might expose employers to defamation lawsuits and general liability for employee actions.

There are ways for both employees and employers to protect against termination and public relations disasters. Employees should remember the wise adage: "never get a tattoo that you wouldn’t show your mother." Employees should be wary of writing anything for public consumption that they would not readily say to their employer. On the other hand, employers should have a clear policy outlining acceptable Blogging practices as well as disciplinary proceedings. Any backlash will be mitigated if employees and customers are on notice that rules exist to regulate Blogs. Absent clear rules, disciplined employees may be more likely to litigate over their punishment. A policy or "framework" that sets forth clear expectations is the best way for employers to avoid costly litigation surrounding the increasingly popular Blogging trend.

If you have questions about any of the above information, please contact Jack Greiner at 513-629-2734 or jgreiner@graydon.com.

This Newsletter is a periodic publication of Graydon Head & Ritchey LLP and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult your own advisor concerning your situation and any specific legal question you may have.