The saying used to be during my time at Andersen, then a Big 5 Global Professional Services firm, that the most valuable assets walked out the door every evening. With companies transitioning to our service economy at warp speed, this truism has never been more pervasive. Given the threats from a variety of sources including hackers, former employees, competitors, customers and sometimes plain-old benign neglect, protecting trade secrets and intellectual property has become more than just a firm cultural issue, but instead a paramount test of survival. Now add social media to that list.
As the company Rolodex has given way to electronic data, the various management tools available through social media lend themselves to compromising your data. Your tweets and posts going to your personal account rather than the business page may be the least of your concerns. Ownership of these accounts will become a pressing issue upon the dissolution of a business relationship or upon termination of an employee. As cases wind their way through the justice system, having a written agreement among the business stakeholders and a thorough employee policy governing ownership and use of such accounts factor largely in a Court’s determination of those rights.
Already employers are attempting to fence in their business data through use of the Computer Fraud and Abuse Act “CFAA,” a criminal statute targeting former employees for unauthorized use of computers and data networking systems. So far this has met with only mixed success. See my prior post Who Owns Your Social Media Account and for an update of recent of cases on this topic see JD Supra. Factor in First Amendment free speech and other constitutional arguments likely to be made on behalf of those aggrieved and these ownership claims will become increasingly litigious as business interests and personal relationships intersect.
William Tennant 