To Tweet or Not to Tweet is No Longer the Question

By Robert McGarvey

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The question is plain: do you have an obligation to store employee Tweets, Facebook status updates, and all manner of other social media utterances that continue to capture favor in this era of rampant micro-blogging? The answers do not come easily so step one is just recognizing that social media, in all it's forms, is making legal discovery of electronic media (eDiscovery) a major headache.

“Social networking, whether done from corporate resources, or personal systems, really complicates eDiscovery,” said Raj Goel, CTO of IT consultancy Brainlink International. “That’s why we recommend banning social media for all users, except for approved folks in marketing or communications.”

Easy to say, downright impossible to enforce, admits Goel.

Attorney Joel Rothman, with Arnstein and Lehr in West Palm Beach, FL. adds, “Banning the use entirely of sites such as Facebook is far too Draconian to be effective and almost impossible to enforce. Besides, I have yet to see a technological measure that was 100% effective so monitoring appears to be an imperfect solution.”

Don’t think your company is not impacted by these issues. Kailash Ambwani, CEO of IT security firm Facetime Communications, said that some 40% of CIOs believe there isn’t much use of social media on their networks “but penetration is around 100%,” said Ambwani. He adds that in surveys as much as 79% of corporate end-users now report they are using social media at work for business purposes―with or without their employer’s permission.

What aggravates everything involving social media is the ease and ubiquity of posting to the leading sites. Plain Jane cell phones can generate Twitter micro-blogs, for example, and what makes this all the more treacherous is a continual blurring of the lines between personal and professional micro-blogging. Consider Yahoo ex-employee Ryan Kuder who famously blogged about his termination and exit from the building. Is that personal or should Yahoo view these as on-duty posts?

Then there’s Lee Landor, one time deputy press secretary to Manhattan’s borough president Scott Stringer, who astonishingly weighed in on her personal Facebook page with an attack on Harvard professor Henry Louis Gates (who had the run-in with Cambridge, MA. police that resulted in a beer at the White House) and referred to President Obama as “O-dumb-a.” Gulp. Her boss apparently did not give much import to the personal/professional divide, and Ms. Landor tendered her resignation when the story hit print.

Further complications arise in that many larger companies have created private, internal social networks―digital water coolers if you will―where employees are encouraged to let their hair down and informally air concerns. But those sites, say many experts, have to be viewed as discoverable and therefore the data needs to be stored.

“If content on corporate social networks is discoverable, and there's no reason to think it wouldn't be, then it is necessary to make sure that the content created on those systems is archived and searchable in the event that an e-discovery request covers data on a social system,” said Hugh Taylor, senior director of Marketing for Miratech, a developer of specialty software for corporate legal departments.

The ante gets upped with public social media sites, as ever more employees tweet and post Facebook updates about their bosses, customers, products, and more.

“In the 21st Century, social networks are transferring physical control of relevant information,” said Jeffrey Ritter, CEO of Waters Edge, which consults with corporate legal departments on e-discovery and similar issues. By that Ritter means Twitter and the rest have gigabytes of data that just might matter in pending and future litigation. The question for IT and legal is what to do.

The Bog-O-Sphere

Step one in navigating this swamp, said New York attorney Fernando Pinguelo, is that just about every company has to set out a formal policy that specifies what's appropriate when using company tools (computers, cellphones) and on company time (which could involve an employee’s use of a personal cellphone or netbook).

Importantly, too, adds Pinguelo is this question: is the company itself using social media in the course of doing business? Mounting numbers of companies are using Twitter to broadcast info on sales, for instance. But when the company uses social media, even if only in one department, the need for a broad, companywide policy setting out appropriate use arises.

One possible rule, suggests attorney Rothman, is never use public social media to communicate on matters of importance to the business without authorization. That means no posts that read, “Wow, all our customers took grumpy pills today. It’s a hair-puller morning.” And no posts means no posts, from anybody, unless approved.

Ritter warns that policy alone is not enough. "There needs to be consistent enforcement of it.”

This raises the question of capturing employee Twitter, Facebook, etc. steams? If it seems likely they would be pertinent in a possible e-discovery action, then, definitely, start capturing and storing. This practice, say the experts, is not very different from how companies responded to the spread of instant messaging a decade ago―as needed. Back then organizations began to store IMs because it just is better to save than to seem cavalier when and if legal actions arise.

The bottom line is to accept that social media adoption is happening very, very fast, said Ambwani. “Acknowledge internally that people are using the technology, then look at what you need to do to protect yourself against risk.”

As a busy freelance writer for more than 30 years, Rob McGarvey has written over 1500 articles for many of the nation's leading publications―from Reader's Digest to Playboy and from the NY Times to Harvard Business Review. McGarvey covers CEOs, business, high tech, human resources, real estate, and the energy sector. A particular specialty is advertorial sections for many top outlets including the New York Times, Crain's New York, and Fortune Magazine.