Blurred Boundaries: Social Media Privacy and the Twenty‐First‐Century Employee

American Business Law JournalVolume 49, Issue 1 p. 63-124 Original Article Blurred Boundaries: Social Media Privacy and the Twenty-First-Century Employee Patricia Sánchez Abril B.A., Duke University, 1996; J.D., Harvard Law School, 2000, Patricia Sánchez Abril B.A., Duke University, 1996; J.D., Harvard Law School, 2000 Assistant Professor of Business Law University of Miami School of Business AdministrationSearch for more papers by this authorAvner Levin, Avner Levin Associate Professor and Chair Law & Business Department, Ted Rogers School of Management, Ryerson UniversitySearch for more papers by this authorAlissa Del Riego J.D. Candidate, 2012 Harvard Law School; B.A., University of Miami, 2009, Alissa Del Riego J.D. Candidate, 2012 Harvard Law School; B.A., University of Miami, 2009Search for more papers by this author Patricia Sánchez Abril B.A., Duke University, 1996; J.D., Harvard Law School, 2000, Patricia Sánchez Abril B.A., Duke University, 1996; J.D., Harvard Law School, 2000 Assistant Professor of Business Law University of Miami School of Business AdministrationSearch for more papers by this authorAvner Levin, Avner Levin Associate Professor and Chair Law & Business Department, Ted Rogers School of Management, Ryerson UniversitySearch for more papers by this authorAlissa Del Riego J.D. Candidate, 2012 Harvard Law School; B.A., University of Miami, 2009, Alissa Del Riego J.D. Candidate, 2012 Harvard Law School; B.A., University of Miami, 2009Search for more papers by this author First published: 05 February 2012 https://doi.org/10.1111/j.1744-1714.2011.01127.xCitations: 91Read the full textAboutPDF ToolsExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onEmailFacebookTwitterLinkedInRedditWechat Footnotes 1 Erving Goffman, The Presentation of Self in Everyday Life (1959). 2Id. at 238. 3Id. at 49. 4Id. at 139. 5Id. at 238. 6Id. at 47. 7130 S. Ct. 2619, 2625 (2010). 8Id. 9Id. at 2629. 10Id. at 2630. 11 Matt Warman, Online Right "To be Forgotten" Confirmed by EU, Telegraph (Mar. 17, 2011, 12:53 PM), http://www.telegraph.co.uk/technology/Internet/8388033/Online-right-to-be-forgotten-confirmed-by-EU.html. 12 R. v. Gomboc, [2010] 3 S.C.R. 211, para. 40 (Can.); see also R. v. Tessling, [2004] 3 S.C.R. 432, para. 55 (Can.) ("Whatever evolution occurs in future will have to be dealt with by the courts step by step. Concerns should be addressed as they truly arise."). 13 Neil Howe & William Strauss, Millennials Rising: The Next Great Generation 4 (2000) (defining Millennials as those "born in or after 1982"). 14The findings discussed in this article are part of a larger research project we conducted regarding the basic questions of online conduct and social media usage. The same survey was administered to university students at Ryerson University, Canada, and the University of Miami in Coral Gables, Florida. The Canadian portion of the project was funded by the Privacy Commissioner of Canada's Contributions Program and those data were reported to the Privacy Commissioner of Canada. For the full Canadian report, see Avner Levin et al., Privacy and Cyber Crime Inst., The Next Digital Divide: Online Social Network Privacy (2008), available at http://www.ryerson.ca/tedrogersschool/privacy/Ryerson_Privacy_Institute_OSN_Report.pdf. In 2009, some of the aggregate Canadian and American data relating to general expectations of privacy were published in the Vanderbilt Journal of Entertainment and Technology Law. Avner Levin & Patricia Sánchez Abril, Two Notions of Privacy Online, 11 Vand. J. Ent. & Tech. L. 1001 (2009). This article focuses on the aggregate data particular to the employment context. We refer to and cite the 2009 article throughout for general propositions regarding the survey and its overall findings. 15See, e.g., Corey A. Ciocchetti, Monitoring Employee E-mail: Efficient Workplaces Vs. Employee Privacy, 2001 Duke L. & Tech. Rev. 0026 (2001), available at http://www.law.duke.edu/journals/dltr/articles/2001dltr0026.html (discussing employee use of personal e-mail in the workplace); Cindy Krischer Goodman, Cellphones Raise Workplace Issues, Miami Herald, Feb. 2, 2011, at B6, available at http://www.miamiherald.com/2011/02/01/2045915/cellphones-raise-workplace-issues.html (discussing employee use of personal cell phones in the workplace); Cindy Krischer Goodman, Social Networks Test Companies' Boundaries, MiamiHerald.com (Jan. 19, 2011), http://www.miamiherald.com/2011/01/18/2022458/social-networks-test-companies.html (discussing the use of online social networks in the workplace). 16Facebook, MySpace, Twitter, and LinkedIn boast a combined 1045 million worldwide users, with Facebook accounting for seventy-two percent of that figure (despite first reaching 250 million users in just 2009). See Statistics, Facebook.com, http://www.facebook.com/press/info.php?statistics (last visited Aug. 11, 2011); see also About Us, Linkedin.com, http://press.linkedin.com/about (last visited Aug. 11, 2011); Nicholas Carlson, Chart of the Day: How Many Users Does Twitter Really Have? Business Insider (Mar. 31, 2011, 6:20 PM), http://www.businessinsider.com/chart-of-the-day-how-many-users-does-twitter-really-have-2011-3; Company Timeline, Facebook.com, http://www.facebook.com/press/info.php?timeline (last visited Aug. 11, 2011). 17See Robert Ball, Social Media Marketing: What's the Payoff for Your Business, Huffington Post (Feb. 24, 2011, 6:00 PM), http://www.huffingtonpost.com/robert-ball/do-you-know-how-social-me_b_826802.html (reporting a survey that found seventy percent of small businesses use social media for marketing); David Bayer, Social Media Marketing—Using Twitter and Facebook to Grow Your Business and Maintain Relationships, Mortgage News Daily (Nov. 12, 2009, 11:18 AM), http://www.mortgagenewsdaily.com/channels/community/118706.aspx (providing a primer for marketing on Facebook and Twitter and noting that "[s]ocial media marketing has been on the rise for the past several years"); Josh Halliday, Twitter and Facebook Under Scrutiny as ASA Polices Online Marketing, Guardian (Mar. 1, 2011, 6:01 AM), http://www.guardian.co.uk/media/2011/mar/01/twitter-facebook-online-marketing-asa (reporting that the United Kingdom's Advertising Standards Authority extended its regulatory oversight to include companies' online marketing). 18 H.S. Teacher Loses Job Over Facebook Posting, BostonChannel.com (Aug. 18, 2010, 7:06 AM), http://www.thebostonchannel.com/r/24670937/detail.html. 19 Complaint, Simonetti v. Delta Airlines Inc., No. 1:05-cv-2321 (N.D. Ga. Sept. 7, 2005), 2005 WL 2897844 (stayed pending Delta bankruptcy proceedings). 20 Katherine C. Chretien et al., Online Posting of Unprofessional Conduct by Medical Students, 302 J. Am. Med. Ass'n 1309 (2009). 21 Stephanie Clifford, Video Prank at Domino's Taints Brand, N.Y. Times, Apr. 16, 2009, at B1. 22See Frederick S. Lane III, The Naked Employee: How Technology Is Compromising Workplace Privacy 11–16 (2003) (describing increased workplace surveillance as "inherently destructive of employee morale" and the Web as a "seductive" drain to employee productivity); Maureen L. Ambrose et al., Electronic Performance Monitoring: A Consideration of Rights, in Managerial Ethics: Moral Management of People and Process 61, 69–72 (Marshall Schminke ed., 1998) (discussing the fact that employer video surveillance, eavesdropping, and computer monitoring generally can lead to employee stress, worsening health, and declining productivity); Jeffrey M. Stanton, Traditional and Electronic Monitoring from an Organizational Justice Perspective, 15 J. Bus. & Psychol. 129, 130, 142–45 (2000) (discussing how employee monitoring and its particular use in the workplace can affect whether employees feel they are being treated fairly, which may affect job satisfaction). 23Although the terms "monitoring" and "surveillance" are used in the literature somewhat interchangeably, we use "monitoring" to refer to the automated, computerized collection of information. In contrast, we use "surveillance" to focus on the human review of activities or collected data. Monitoring of electronic communication is routine in the workplace, while surveillance is not. Surveillance is usually triggered by the employer's suspicion of employee misconduct. See Corey A. Ciocchetti, The Eavesdropping Employer: A Twenty-First Century Framework for Employee Monitoring, 48 Am. Bus. L.J. 285, 301 (2011); Avner Levin, Big and Little Brother: The Potential Erosion of Workplace Privacy in Canada, 22 Can. J.L. & Soc. 197, 197–98 (2007). See generally Daniel J. Solove, A Taxonomy of Privacy, 154 U. Pa. L. Rev. 477, 487–90 (2006) (discussing the harm resulting from those in a position of power collecting private or personal data through the use of monitoring); Am. Mgmt. Ass'n, 2007 Electronic Monitoring & Surveillance Survey 4 (2008), http://www.plattgroupllc.com/jun08/2007ElectronicMonitoringSurveillanceSurvey.pdf (surveying employer monitoring practices in various areas such as the Internet, e-mail, and computer usage). 24See Terry Morehead Dworkin, Protecting Private Employees from Enhanced Monitoring: Legislative Approaches, 28 Am. Bus. L.J. 59, 75 (1990); Don Mayer, Workplace Privacy and the Fourth Amendment: An End to Reasonable Expectations?, 29 Am. Bus. L.J. 625, 626 (1991). 25 Lex K. Larson, 1 Employment Screening § 10-2.3 (2006) (defining negligent hiring). Negligent hiring is a tort claim recognized in more than half of the states in the United States. Timothy L. Creed, Negligent Hiring and Criminal Rehabilitation: Employing Ex-Convicts, Yet Avoiding Liability, 20 St. Thomas L. Rev. 183, 184 (2008). In jurisdictions where the tort exists, an employer can be held liable for the harm its employee causes a third party if the employer knew or should have known of the employee's potential risk or if reasonable investigation would have uncovered such a risk. Id. at 184–185. 26Creed, supra 25, at 187. Negligent retention theories of liability involve an employer's duty to exercise reasonable care in the continued retention of an employee. The tort was the basis of liability for employers of priests accused of pedophilia and football players accused of crimes. See Joel Michael Ugolini, Even a Violent Game Has Its Limits: A Look at the NFL's Responsibility for the Behavior of Its Players, 39 U. Tol. L. Rev. 41 (2007); Kelly H. Sheridan, Note, Staying Neutral: How Washington State Courts Should Approach Negligent Supervision Claims Against Religious Organizations, 85 Wash. L. Rev. 517 (2010). 27Employers can also be held liable for the torts of their employees under the legal doctrine of respondeat superior. See, e.g., Micah Echols, Striking a Balance Between Employer Business Interest and Employee Privacy: Using Respondeat Superior to Justify the Monitoring of Web-Based, Personal Electronic Mail Accounts of Employees in the Workplace, 7 Computer L. Rev. & Tech. J. 273, 294 (2003). 28 Doe v. XYC Corp., 887 A.2d 1156 (N.J. Super. Ct. 2005). 29The American Management Association found that, of the twenty-eight percent of surveyed employers who reported terminating an employee for e-mail misuse, twenty-two percent of those violations involved a breach of confidentiality. See Am. Mgmt. Ass'n, supra 23, at 8–9. 30See, e.g., Bradley J. Alge, Effects of Computer Surveillance on Perceptions of Privacy and Procedural Justice, 86 J. Applied Psychol. 61 (2001); Ciocchetti, supra 15; Barry A. Friedman & Lisa J. Reed, Workplace Privacy: Employee Relations and Legal Implications of Monitoring Employee E-mail Use, 19 Emp. Resp. & Rts. J. 75 (2007); Joan T. A. Gabel & Nancy R. Mansfield, The Information Revolution and Its Impact on the Employment Relationship: Analysis of the Cyberspace Workplace, 40 Am. Bus. L.J. 301 (2003); Jennifer L. Paschal et al., Effects of Electronic Mail Policies on Invasiveness and Fairness, 24 J. Managerial Psychol. 502 (2009); Janice C. Sipior & Burke T. Ward, The Ethical and Legal Quandary of Email Privacy, 38 Comm. ACM, Dec. 1995, at 48. 31See infra 32-65 and accompanying discussion of reasonable expectations of privacy. Other jurisdictions, most notably the member states of the European Union, understand workplace privacy differently. In these jurisdictions, employees have a right to dignity and to a private life that does not stop at the boundary of the workplace. While this right is not absolute and must be balanced with the employer's property rights, it does contain an inalienable core that protects the dignity of the employee as a human being. See generally James Q. Whitman, The Two Western Cultures of Privacy: Dignity Versus Liberty, 113 Yale L.J. 1151 (2004) (discussing these different approaches to understanding privacy). 32 Katz v. United States, 389 U.S. 347, 360–61 (1967); see also Mayer, supra 24, at 630–632. In the context of private employers, the analysis is the same. See, e.g., Smyth v. Pillsbury Co., 914 F. Supp. 97, 101 (E.D. Pa. 1996) (finding that there is no "reasonable expectation of privacy in e-mail communications voluntarily made by an employee to his supervisor over the company e-mail system"); Dir. of Office of Thrift Supervision v. Ernst & Young, 795 F. Supp. 7, 10 (D.D.C. 1992) (applying the O'Connor standard to the question of employee privacy in diaries containing personal and company data). In O'Connor v. Ortega, 480 U.S. 709, 726 (1987), the Supreme Court held that an employee's reasonable expectation of privacy in the workplace should be judged under all the circumstances and must be reasonable both in inception and scope. 33See, e.g., Bohach v. City of Reno, 932 F. Supp. 1232 (D. Nev. 1996); Smyth, 914 F. Supp. 97; Bourke v. Nissan Motor Corp., No. B068705 (Cal. Ct. App. July 26, 1993) (unreported decision); McLaren v. Microsoft, No. 05-97-00824-CV, 1999 Tex. App. LEXIS 4103, at *12 (Tex. App. May 28, 1999); Jay P. Kesan, Cyber-Working or Cyber-Shirking?: A First Principles Examination of Electronic Privacy in the Workplace, 54 Fla. L. Rev. 289, 303 (2002). 34See, e.g., Muick v. Glenayre Elec., 280 F.3d 741, 743 (7th Cir. 2002) (finding no reasonable expectation of privacy in workplace computer files when the employer expressly reserved the right to inspect the computer); Thygeson v. U.S. Bancorp, No. CV-03-467, 2004 WL 2066746, at *20 (D. Or. Sept. 15, 2004) (finding no reasonable expectation of privacy in computer files and e-mail when the employee handbook explicitly warned of the employer's right to monitor files and e-mail); Kelleher v. City of Reading, No. Civ. A. 01-3386, 2002 WL 1067442, at *8 (E.D. Pa. May 29, 2002) (finding no reasonable expectation of privacy in workplace e-mail when the employer's guidelines "explicitly informed employees that there was no such expectation of privacy"). 35 O'Connor, 480 U.S. at 712. 36The American Management Association has reported that sixty-six percent of the largest U.S. companies monitor Internet connections. The Latest on Workplace Monitoring and Surveillance, Am. Mgmt. Ass'n (Mar. 13, 2008), http://www.amanet.org/training/articles/The-Latest-on-Workplace-Monitoring-and-Surveillance.aspx. 37See Jason L. Snyder, E-mail Privacy in the Workplace: A Boundary Regulation Perspective, 47 J. Bus. Comm. 266, 268 (2010) (citing Gary Gumpert & Susan J. Drucker, The Demise of Privacy in a Private World: From Front Porches to Chat Rooms, 8 Comm. Theory 408 (1998)). 38See, e.g., Stanton, supra 22, at 130 (discussing studies addressing employees' reactions to workplace monitoring). 39For more on the historical connection between the constitutional test as it was first set out in Katz v. United States, 389 U.S. 347 (1967), and tort law, see Mayer, supra 24, at 632–637; Peter Winn, Katz and the Origins of the "Reasonable Expectation of Privacy" Test, 40 McGeorge L. Rev. 1 (2009). 40 Mapp v. Ohio, 367 U.S. 643, 654 (1961). 41U.S. Const. amend. IV; see also O'Connor v. Ortega, 480 U.S. 709, 737 (1987) (stating that "individuals do not lose Fourth Amendment rights merely because they work for the government"). 42 Kevin J. Conlon, Privacy in the Workplace, 72 Chi.-Kent L. Rev. 285, 289–91 (1996); Mayer, supra 24, at 629. 43480 U.S. at 713. 44Id. at 717. 45 State v. Bonnell, 856 P.2d 1265, 1279 (Haw. 1993) (holding that the defendants had a reasonable expectation of privacy in their break room because access to the room was limited to employees). 46Cf. Cramer v. Consol. Freightways, Inc., 209 F.3d 1122, 1131 (9th Cir. 2000) (holding that an employment contract that arguably allowed video surveillance of the employee bathroom could not supersede the mandatory provisions in state privacy laws), rev'd en banc, 255 F.3d 683 (9th Cir. 2001) (reversed in part on other grounds concerning the collective bargaining agreement in place). On review, the en banc Ninth Circuit found that the invasion of privacy claims were independent of the terms of the collective bargaining agreement and not preempted by the Labor Management Relations Act, 255 F.3d at 694; that any provision in the collective bargaining agreement that purported to authorize the use of two-way mirrors was illegal under state statute, id. at 695; and that such provision would thus be illegal and void. id. 47See Leventhal v. Knapek, 266 F.3d 64, 74 (2d Cir. 2001) (finding an employee had a reasonable expectation of privacy in the contents of his computer where the employee occupied a private office with a door, had exclusive use of the computer in his office, and did not share his computer with other employees or the public, notwithstanding the employer's policy prohibiting use of work equipment for personal purposes). 48 O'Connor, 480 U.S. at 722–725. 49Id. at 725–726. 50130 S. Ct. 2619, 2625 (2010). 51Id. at 2632–2633. 52Id. at 2626. 53Id. For example, of the 456 text messages Quon sent or received in the month of August 2002, no more than fifty-seven were work related. On an average business day, Quon sent or received twenty-eight text messages, only about three of which were work related. Id. 54Id. at 2626. 55Id. at 2626–2627. The officers were instructed that messages sent and received from their issued devices would be treated as e-mails under the City's Computer Policy, which stated that the City "reserve[d] the right to monitor and log all network activity … with or without notice." Id. at 2625. 56Id. at 2630. 57Id. at 2631–2632. 58Id. at 2632–2633. 59Id. at 2630. 60Id. 61Id. at 2629. 62Id. 63Id. at 2631. 64Id. at 2630. 65Courts customarily look at all of the circumstances surrounding the alleged consent to company monitoring policies in assessing whether the employee has a reasonable expectation of privacy. See Hernandez v. Hillsides, Inc., 211 P.3d 1063, 1078 (Cal. 2009) (holding that the plaintiffs had a reasonable expectation of not being videotaped in their offices, despite company policy indicating the employees had no reasonable expectation of privacy in their communications, because such policy never alluded to the possibility of video recording); Bourke v. Nissan Motor Corp., No. YC-003979 (Cal. Ct. App. July 26, 1993) (unreported decision), available at http://www.loundy.com/CASES/Bourke_v_Nissan.html (last visited Oct. 9, 2011) (holding that employees forfeit reasonable expectations of privacy on work computers by agreeing to the employer's policies providing that use of its computers was for business purposes only); Smyth v. Pillsbury Co., 914 F. Supp. 97, 101 (E.D. Pa. 1996) (holding that, despite an employer's failure to notify its employee that his communications were being monitored, the employer's "interest in preventing inappropriate and unprofessional comments or even illegal activity over its e-mail system outweigh[ed] any privacy interest the employee may have [had]"). 66Cour de Cassation [Cass.] [supreme court for judicial matters] soc., Oct. 2, 2001, No. 4164 (Fr.), available at http://www.courdecassation.fr/jurisprudena_2/chamber_sociale_576/arret_no_1159.html. 67Id. 68Cour de Cassation [Cass.] [supreme court for judicial matters] soc., Oct. 21, 2009, No. 2044 (Fr.), available at http://www.courdecassation.fr/publications_cour_26/arrets_publies_2986/chambre_sociale_3168/2009_3332/octobre_2009_3246/2044_21_13949.html. 69Id. 70See Avner Levin & Mary Jo Nicholson, Privacy Law in the United States, the EU and Canada: The Allure of the Middle Ground, 2 U. Ottawa L. & Tech. J. 357 (2005) (describing Canada's middle-ground position on privacy matters). 71[2011] 105 O.R. 3d 253 (Can. Ont. C.A.), available at http://www.ontariocourts.on.ca/decisions/2011/2011ONCA0218.htm. 72Id. at para. 12. 73Id. at para. 3. Section 8 is roughly equivalent to the Fourth Amendment, stating, "Everyone has the right to be secure against unreasonable search or seizure." Canadian Charter of Rights and Freedoms, Part I of the Constitution Act § 8, 1982, available at http://laws.justice.gc.ca/eng/charter/page-1.html. 74Cole, 105 O.R. 3d 253, para. 45. 75Id. at para. 47. 76Id. at para. 48. 77Id. at paras. 63, 66. 78See, e.g., France v. Tfaily, [2009] 98 O.R. 3d 161 (Can. Ont. C.A.) (finding that a collective bargaining agreement between a university and a faculty association granted a professor an objectively reasonable expectation of privacy in relation to his personal electronic data on university computers). 79See supra 68, 69 and accompanying text. 80It also has been argued that, with every U.S. Supreme Court case defining the reasonableness of an individual's expectation of privacy under the Fourth Amendment, the Court has become more vague and continued to narrow its holding in Katz v. United States, 389 U.S. 347 (1967). See Mayer, supra 24, at 656–658. 81Pub. L. No. 99–508, Title I, 100 Stat. 1851, 1859 (codified at 18 U.S.C. §§ 2510–22 (2006)); Title II, 100 Stat. 1860 (codified at 18 U.S.C. §§ 2701–11 (2006)); Title III, 100 Stat. 1868 (codified at 18 U.S.C. §§ 3121–27 (2006)). 8218 U.S.C. § 2511(1). 83Id. § 2511(2)(g)(i). 84Id. § 2511(2)(a)(i). 85Id. § 2511(2)(c) & (d). 86See Matthew Finkin, Information Technology and Workplace Privacy: The United States Law, 23 Comp. Lab. L. & Pol'y J. 471 (2002) (discussing the ECPA and U.S. workplace privacy in general); Sylvia Kierkegaard, Privacy in Electronic Communication Watch Your E-mail: Your Boss Is Snooping, 21 Computer L. & Sec. Rep. 226 (2005). 87See Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 114 (3d Cir. 2003) (holding that an employer accessing an employee's e-mail did not violate the Wiretap Act because the communication was in storage rather than in transit); Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 878 (9th Cir. 2002) (holding that an employer that accessed its employee's personal, password-protected Web site did not violate the Wiretap Act because the electronic communication was accessed when in storage, rather than when in transmission). 8818 U.S.C. § 2701(a). 89Id. § 2701(c). 90No. 06-5754-FSH, 2008 WL 6085437, at *1-2 (D.N.J. July 25, 2008); see also Dionne Searcey, Employers Watching Workers Online Spurs Privacy Debate, Wall St. J., Apr. 23, 2009, at A13. 91 Pietrylo, 2008 WL 6085437, at *1. 92Id. 93Id. 94Id. at *4. 95Id. at *2. 96Id. 97 Pietrylo v. Hillstone Rest. Grp., No. 06-5754 (FSH), 2009 WL 3128420, at *1 (D.N.J. Sept. 25, 2009). 98Id. 99Verdict and Settlement Agreement, Pietrylo v. Hillstone Rest. Grp., No. 2:06-cv-05754-FSH-PS (D.N.J. June 26, 2009) 2009 WL 2342553. 100Id. Pietrylo is consistent with the manner in which expectations of privacy on social networks have been analyzed in Canada. For example, in a recent labor arbitration decision on the dismissal of a unionized employee of a car dealer, the arbitrator found that the employee had no reasonable expectation of privacy in his Facebook postings because he had one hundred Facebook friends. Lougheed Imports, Ltd. v. United Food & Commercial Workers Int'l Union, Local 1518, [2010] CanLII 62482, para. 97 (Can. B.C.L.R.B.), available at http://www.canlii.org/en/bc/bclrb/doc/2010/2010canlii62482/2010canlii62482.html. Similar to Pietrylo, the employer did not have direct access to the employee's Facebook page, but was granted access by an ex-employee. Id. at para. 22. 101See infra 152-162 and accompanying text (discussing whether employees' off-duty online speech is concerted activity under Section 7 of the National Labor Relations Act). 102587 F. Supp. 2d 548, 552 (S.D.N.Y. 2008). 103Id. at 553. 104Id. at 556. 105Id. at 557–558. 106Id. at 559. 107Id. at 553. 108Id. at 559. 109Id. 110Id. at 561. 111Id. 112Id. The policy was not enforced in a consistent manner "that would have alerted employees to the possibility that their private email accounts, such as Hotmail, could also be accessed and viewed by their employer." Id. 113See supra 68, 69 and accompanying text. 114File No. 90/08 National Labor Court, Tali Isakov Inbar v. Commissioner for Women Labor (Feb. 8, 2011), available at http://elyon1.court.gov.il/heb/dover/3082302.doc [in Hebrew]. For a case note in English, see Dan Or-Hof, Israel—Monitoring Employees Email Severely Restricted, Pearl Cohen Zedek Latzer (Feb. 10, 2011), http://www.pczlaw.com/news/2011/02/10/israel—monitoring-employees-email-severely-restricted. 115Tali Isakov Inbar, at para. 3. 116Id. at para. 2. 117The Israeli court explicitly stated that employee consent would be insufficient. Id. at para. 49. 118Id. at para. 2. 119Id. at para. 39. 120Id. at para. 41. 121Id. at para. 5. Employment in Israel is governed by collective agreements to a greater extent than in the United States because legislation enables the Ministry of Labor to apply such agreements to nonunionized workplaces as well. See Collective Agreements Law, 5717–1957 §§ 25-33G (Isr.), available at http://www.tamas.gov.il/NR/rdonlyres/DF31497A-297C-431A-8C63-7DB7CD653C1F/0/3.pdf. 122See Diane Coutu, We Googled You, Harv. Bus. Rev., June 2007, at 37, 44 (providing comments by chairman and chief executive officer of Manpower, an employment company, about the pervasiveness of the employee online screening practice); Brian Elzweig & Donna K. Peoples, Using Social Networking Web Sites in Hiring and Retention Decisions, SAM Advanced Mgmt. J., Autumn 2009, at 27, 28. 123 Career Experts Provide Advice on Dos and Don'ts for Job Seekers on Social Networking, CareerBuilders.com (Aug. 19, 2009), http://www.careerbuilder.com/share/aboutus/pressreleasesdetail.aspx?id=pr519&sd=8/19/2009&ed=12/31/2009&siteid=cbpr&sc_cmp1=cb_pr519_&cbRecursionCnt=2&cbsid=c6bd4651f8e845f187ba45c9c3152747-316799338-RK-4. 124Id. 125Id. (revealing that fifty-three percent of the employers that reported having found content that caused them not to hire candidates said they found candidates had posted