San Francisco Employment Privacy Law Lawyer & Attorney : Littler Mendelson Law Firm : Employment Related Privacy Issues

Even though people surfing the Internet often leave a trail of data on the web sites they visit, the New Jersey Supreme Court has found a constitutionally protected privacy interest in their anonymity. Rejecting uniform federal court precedent holding that Internet users do not have a reasonable expectation of privacy under the U.S. Constitution in subscriber information stored by their Internet Service Provider (ISP), the state Supreme Court held on April 21 that New Jersey’s Constitution does protect this information against unreasonable searches by law enforcement authorities. While focused on criminal enforcement, the decision most likely will make it even more difficult for employers to identify employees and former employees who anonymously use the Internet to damage companies.

The case arises out of a run-of-the-mill employee vendetta. After defendant Shirley Reid had an argument with the owner of Jersey Diesel, where she was employed, Reid allegedly tried to sabotage the company’s operations. Using her home computer and the unique user ID and password that she had established as part of her job, Reid accessed the web sites of Jersey Diesel’s suppliers and changed the company’s shipping address to a non-existent address. One of Jersey Diesel’s suppliers reported the change to Jersey Diesel and gave the company’s owner the Internet Protocol (IP) address assigned to the computer used to access the supplier’s web site. Jersey Diesel, apparently using an IP Address Locator web site (which is similar to a reverse telephone directory), determined that the IP address was registered to Comcast. Comcast, however, refused to disclose the identity of the subscriber to Jersey Diesel’s owner. The owner then reported the activity to local police. In response to a municipal subpoena served by the local police, Comcast disclosed that Reid was the subscriber associated with the IP address. The local prosecutor indicted Reid on charges of criminal theft.

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Our last blog entry discussed the First Amendment shield that covers current and former employees who use anonymous or pseudonymous Internet postings to trash their employers. Today’s cautionary tale highlights the practical challenges employers face in court even when a current or former employee posts confidential records on the Web in violation of confidentiality agreements and laws.

Bank Julius Baer & Co., a Cayman Island subsidiary of a Swiss bank, fired a disgruntled vice president. On her way out, she took confidential documents she believed show that her former employer engaged in unlawful conduct. The next day, she posted those documents on a public website devoted to leaking confidential documents.

Instead of pursuing the disgruntled vice president, the Bank filed a lawsuit seeking to enjoin the leaking website, Wikileaks.org, and its domain name registrar, Dynadot. The Wikileaks website enables users to anonymously publish submissions, including alleged confidential corporate and government documents. The site aims to be an “untraceable version of Wikipedia for untraceable mass document leaking and analysis.” The site runs on modified MediaWiki software, similar to the software that runs Wikipedia.

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The balance of power has shifted. In the “old days” -- before the Internet explosion -- a disgruntled current or former employee did not have many outlets. She might complain to a spouse, a cadre of sympathetic co-workers or a union representative. But her employer had little fear that her scalding criticism of her direct report, the company’s business strategy or senior management would be front-page news or fodder for radio talk shows.

In today’s world of blogs, personal Web pages, chat rooms, and message boards, that dynamic has been flipped. Employees — and particularly terminated, former employees — are venomously trashing their employers in cyberspace, where anyone who wants to “tell all” can speak freely. Employers have been left desperately searching for the answer to one simple question: “How can I shut that guy up?”

A decision published by the California Court of Appeal earlier this month, Krinsky v. Doe 6, highlights one of the major obstacles to squelching these silicon diatribes, often referred to as “cybersmear.” Who do you shut down? Most current and former employees venting on the Web are cagey enough to hide behind anonymity or veiled identity. In Krinsky, for example, the offending poster dubbed the plaintiff, a departing senior executive, “boobs” and said that he would “reciprocate felatoin [sic] with [her] even though she has fat thighs, a fake medical degree, 'queefs' and ... poor feminine hygiene” but, for obvious reasons, did not take personal responsibility for this juvenile comment.

The Krinsky plaintiff, like other business people on the receiving end of an anonymous or pseudonymous diatribe, are left knocking on the typically sealed door of the Internet Service Provider (ISP) that hosts the server where the post resides. The ISPs, fulfilling assurances of confidentiality in their subscriber agreement or complying with obligations imposed by the Stored Communications Act, typically will disclose the identity of an anonymous or pseudonymous user posting content only in response to a subpoena or court order. The ISP also typically will put its subscriber on notice that a subpoena has been served to give the subscriber an opportunity to ask the issuing court to quash the subpoena.

No matter how obnoxious their posting, current and former employees who speak anonymously or pseudonymously on the Web arrive in court with the upper hand; they are cloaked in the protective garb of the First Amendment. The First Amendment does not protect cybersmearing employees from being terminated (albeit anti-retaliation statutes and other statutes might, depending upon the content of the post). Rather, the First Amendment restricts the power of the judiciary to issue a speech-squelching injunction.

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