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Social Media - Legal Issues for Agencies to Consider

 

The benefits of social media to support and enable government operations are plentiful, including: facilitation of public policy discussion; sharing of useful state government content; and increased transparency of publically available data and the ability of citizens to reassemble it in useful ways. Like any technology, uses of social media tools in government also raise novel legal considerations and implications.

 

Among other things, when using these tools, agencies need to consider privacy laws, open government and records retention laws, free speech and intellectual property rights, and must conform to other state and federal laws.

 

This legal toolkit is intended to guide New York State agency attorneys as their clients embark on greater use of social media tools in fulfilling agency missions and goals.[1]

 

Nothing herein is legal advice. Rather, these are pointers to issues requiring further exploration dependent upon individual facts and circumstances. Social media is new, and states are taking widely varying approaches to legal compliance. This document may be supplemented or revised in the future as perspectives and developments warrant.

Nothing herein is intended to modify in any respect the provisions of NYS Policy G09-001: Acceptable Use of Information Technology (IT) Assets (http://www.cio.ny.gov/Policy/G09-001/NewYorkStateAcceptableUseBestPracticeGuideline.pdf). Rather, this document is intended merely as a tool for spotting legal issues in supplement to that policy.

 

I.        TERMS OF SERVICE:

 

A.      Are social media terms of service compatible with State laws and policies?

 

There are a myriad of different categories of social media tools, each with their own terms of service. Tools coming into popular usage by NYS agencies include:

 

•  media content sites (e.g. YouTube, Flickr);

• weblogs (aka “blogs,” such as WordPress or microblogger Twitter);

•  virtual worlds (e.g. SecondLife);

•  wikis (editable webpages such as CIO/OFT’s policy wiki at http://wiki.cio.ny.gov/wiki/Main_Page or NYS-DOL’s internal “LaborWiki” at http://www.labor.state.ny.us/cioshares/app_DOLWiki.shtm);

•  social networking sites (such as Facebook and LinkedIn); and

•  collaborative sites (such as GoogleGroups).

 

Not only do these tools each have different characteristics, but a review indicates their Terms of Service (TOSs) differ markedly.  As such, attorneys for agencies using these sites should read these Terms of Service and evaluate the risks and the capability of your agency to agree to certain terms, including:

 

• The site’s conditions of use and access privileges.
• Your agency’s ownership of the data, and your ability to retrieve it.
• Conflict of laws, jurisdictional and venue provisions.
• Liability and indemnification provisions, and NYS laws and practices concerning the same.

 

B.      What strategies can be used to minimize legal risks?

 

1.  Consider allowing your workforce to access only a limited number of pre-approved social media sites with acceptable and/or negotiated terms and conditions

 

2. Consider creating your own social media portal with sites such as KickApps or Ning which allow entities to design their own pages and may allow greater negotiation and control over terms and conditions.

 

3. Negotiate better terms for your agency (and share your work with sister agencies) or join collaborative efforts to do so. A NASCIO (National Association of State Chief Information Officers) team of state government personnel (including personnel from CIO/OFT) has been working with certain social media providers on developing similarly specialized terms commonly acceptable to all fifty (50) state governments. Some vendors are developing social media tools with government-specific terms, such as Google Apps for Government with collaborative calendars, intranets, document software, and video sharing.

 

4. Mitigate risks ensuing from some of the more onerous terms of service (such as the risk of loss of your agency’s content) through the use of protective measures described below (such as site scraping).

 

5. Consider applying disclaimers or intellectual property assertions or terms within your “channels” on the social media sites you are using.

 

6. Determine whether social media sites will permit you to set specific licensing terms and if so, do so wherever your agency controls a site’s content. One mechanism for efficiently describing licensing preferences is to use Creative Commons licensing (http://creativecommons.org/). One NYS government entity which does so extensively and effectively is the NYS Senate: http://www.nysenate.gov/copyright-policy.

 

 

II.      SOCIAL MEDIA SITE COMPLIANCE WITH STATE “RECORDS” LAWS

 

A.      Freedom of Information Law (FOIL) 

 

The term “record” under the Freedom of Information Law (Public Officers Law, Article 6, FOIL) means any information “kept, held, filed, produced or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements …regulations or codes.” The term is construed liberally.  To date, there is no New York State case law on whether a State agency’s social media content is subject to FOIL, but since the definition of a record is so encompassing, it is possible that certain statements and/or comments made on social media sites could be deemed records for purposes of this law.  In considering this issue, one must address whether an agency actually possesses or maintains the social media content that is captured on a third party’s system and to which an agency may have limited access.  FOIL provides that in responding to a FOIL request, no agency is required to prepare any record not possessed or maintained by such entity [Public Officers Law § 89(3)(a)].  For these reasons, the following should be considered by State agencies in handling social media content for purposes of FOIL:

 

• Maintain copies of postings that are vital to the transaction of public business and that evidence an agency’s public functions, decisions and operations. Where such materials are in the custody of a third party provider, make reasonable efforts to obtain a copy of such when needed for public access or record preservation purposes. In doing so, and considering that some social media sites are internal to an agency, or are protected with limited membership by approved members of a team, agencies should be cognizant of the fact that internal draft discussions and documents not intended for general public consumption (excluding factual compilations put together during those draft discussions such as statistical tabulations), are typically exempt from disclosure under FOIL.

 

• The NYS Department of State’s Committee on Open Government is of course responsible for overseeing and advising with regard to the Freedom of Information Law http://www.dos.state.ny.us/coog/index.html.  Agencies should rely on COOG’s advice in the event of questions about the applicability of FOIL to agency use of social media.

 

B.      Open Meetings Law 

 

Under the New York Open Meetings Law (Public Officers Law, Article 7), minutes need to be taken at “meetings”. Minutes from these meetings are available to the public under the Freedom of Information Law.  The Open Meetings Law applies to meetings of a public body for the purpose of conducting public business that is “officially” convened.  A “meeting” under the statute does not occur unless there is a quorum of the public body, convened for the purpose of conducting public business.  Therefore, if the number of people at the meeting is not sufficient to render a decision, minutes need not be taken. When interactions are not instantaneous, there is no meeting.  In addition when there is an “absence of motions, proposals, resolutions, or other matters on which votes have been taken,” minutes need not be taken.  It would appear that social media interactions do not typically arise to the level of a “meeting” as defined in the Open Meetings Law.  Again, to date, there is no case law on whether a State agency’s social media content is subject to the Open Meetings Law.  As with FOIL, the NYS Department of State’s Committee on Open Government (COOG) is responsible for overseeing and advising with regard to the Open Meetings Law, and can be consulted with in this regard should such questions arise.

 

C.      Records Retention/Disposition Laws

 

This same uncertainty exists when considering the applicability of the State’s Arts and Cultural Affairs Law, and its record retention/disposition requirements, to social media content. That Law defines “official records” to include “all books, papers … or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the state or the legislature or the judiciary in pursuance of law on in connection with the transaction of public business and preserved or appropriate for preservation by that agency … as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities, or because of the information contained therein (emphasis added). The terms of service of most of the prominent social media sites acknowledge that the content-contributing party retains ownership of the posted material, but assert an irrevocable license for the social media site to use that content indefinitely. Those terms of service also typically permit the social media site to remove and discard that content under certain conditions.  As New York State Archives has indicated, “[b]ecause the technology is new, it’s not yet clear to what extent traditional records retention and disposition practices apply to social media content.” http://www.archives.nysed.gov/a/records/mr_social_media.shtml

 

The persistency of social media content (in most cases) obviates the need for an agency to independently through some secondary means ensure the posted content is accessible to the public or retained accordingly.  But that very persistency also serves to highlight the possible loss of such content if it is removed from the sites where it was posted.  It could be lost through hacker attacks or other technical problems, the shuttering of the social media site on which it was posted, or more commonly, through the passage of time and the content’s perceived diminishing utility and relevancy, or through operation of a site’s terms of service. Implied in these realities is a need for state agencies to be proactive to ensure that publically vital content remains accessible, and to ensure that any subset of materials which may be subject to records retention laws is treated appropriately.  The NYS Archives (NYSA) is of course responsible for overseeing and advising with regard to the NYS Arts & Cultural Affairs Law records retention provisions.  NYSA has published Preliminary Guidance on Social Media, which includes a section directly addressing records retention. See: http://www.archives.nysed.gov/a/records/mr_social_media.shtml.  If agencies have any doubt they should of course consult with NYSA.

 

D.      Personal Privacy Protection Law (PPPL)

 

The Personal Privacy Protection Law (Public Officers Law, Article 6-A, PPPL) addresses the collection, maintenance, use and disclosure of a data subject’s personal information by a state agency.  State agencies that maintain systems of records must take certain precautions when dealing with such personal information.  In the context of a state agencies use of social media tools, agencies should evaluate whether the agency’s posting of content on social media sites creates any “systems of records” subject to particular requirements of the Personal Privacy Protection Law.  Currently, CIO/OFT is unaware of any case law or administrative opinions wherein PPPL implications on an agency’s use of a social media site are addressed.  Once again, the NYS Department of State’s Committee on Open Government (COOG) is responsible for overseeing and advising with regard to the PPPL, and can be consulted with in this regard should such questions arise. 

 

Ideally, agencies and social media providers would address these legal considerations and implications relative to FOIL, Open Meetings Law, Arts and Cultural Affairs Law and PPPL ahead of time, as the team from the National Association of State Chief Information Officers (NASCIO) is attempting to do.  In the absence of such, agencies may want to consider the following mitigating strategies:

 

• Consider using third party sites or tools to scrape and archive the agency’s social media content. This includes options such as:

 

o   Twinbox: A Microsoft Outlook plug-in that can be used to archive Twitter postings.

 

o   Tweetake: A free service allowing agencies to archive lists of followers, people the agency is following, and tweets.

 

o   ArchiveFB: A free plugin for the Firefox browser that creates a zip file and archives Facebook profiles and information associated with Facebook.

 

o   SocialSafe: A similar tool archiving Facebook pages for a small fee.

 

o   Backupify: A service which archives a variety of social networking tools such as Twitter, Facebook, Wordpress, and Flickr.

 

• Consider having the agency build its own archival system/database for this type of content, or how the data might be archived by a central agency.

 

• Consider using social media in a targeted manner, not attempting to migrate the entirety of the agency’s communications to these tools but only a more manageable subset. This could include, for example, sharing only subsets of data the agency knows the public is widely interested in, or creating temporary discussion spaces concerning particular issues which are then closed and discarded, rather than retained, when the discussion period closes.

 

III.    SOCIAL MEDIA SITE COMPLIANCE WITH ACCESSIBILITY LAWS AND POLICIES

 

A.      The Americans with Disabilities Act, §508 of the Rehabilitation Act of 1973, and other laws

 

State agencies have a responsibility to avoid discrimination and ensure equal access to all people.  The Americans With Disabilities Act of 1990 prohibits covered entities, including government, from discriminating against people with disabilities.  The Rehabilitation Act of 1973 prohibits state programs from discriminating against people with disabilities if the state program receives federal funding.  Section 508 requires that “electronic and information technology developed, maintained, procured, or used by the [state] government must be accessible to people with disabilities.”  However, compliance is not required if doing so would “fundamentally alter the nature of the provider’s programs, services, or activities” or “would impose an undue burden.”  The government may also provide an alternative process for providing the information but these alternate methods must measure up to “equal access.”

 

Some have argued that as social media sites are free, they are not procured by the government and should not fall under the Rehabilitation Act.  But over time this legal argument may not prevail because the sites are “developed” or “used by” the government, presumably making the Act applicable.

 

In any event, ensuring a more fully inclusive state workforce and increased availability of governmental services to all members of the public is the policy of New York State.

 

B.      NYS Information Technology Policy P08-005

 

NYS Information Technology Policy P08-005 establishes minimum accessibility requirements for web-based Information and Applications developed, procured, maintained or used by state entities, including on social media sites.  http://www.cio.ny.gov/Policy/NYS-P08-005.pdf Agencies subject to its authority must continue to abide by this statewide policy.  It would be best practice for all entities using social media tools to provide links to their or the social media site’s accessibility policies, assess and work to remediate accessibility concerns for those sites, work with social media providers to address these issues, and gravitate to those sites which respect these concerns.  As one example, YouTube recently began offering an automatic captioning service for videos posted on its site.

 

 

IV.   FREE SPEECH AND FIRST AMENDMENT RIGHTS ON SOCIAL MEDIA SITES

 

This is a complex topic which this toolkit will break into constituent parts. The toolkit will just touch on this topic, and agencies are reminded their legal counsel will need to address such issues on a case-by-case basis dependent on individual facts and circumstances.

 

A.      May an agency restrict the speech on its social media sites?

 

The extent to which a government should attempt to limit or restrict speech on its social media sites requires examining public forum and government speech policies as well as related legal considerations.  These are all, at least in the digital world of social media, still evolving.  How does government reconcile the benefits of social media with the uncontrolled nature of the interactive communication which draws users to a site?  A static Facebook page is easily controllable, but may not attract a broad audience.  On the other hand, a government that creates a fully interactive site risks creating a public forum over which it has very limited control.  Once the discussion is opened it becomes difficult to edit, not only in terms of the time and resources it takes to monitor content but in terms of legal implications.

 

Even so, there are several accepted bases upon which speech can be restricted, including obscene, threatening, defamatory, discriminatory, harassing, off topic speech and copyright limitations.  These “traditional” restrictions on free speech equally apply in the social media world.  Additionally, the Hatch Act of 1939 prohibits certain political activities by federal, state and local government employees in programs that receive federal funding.  These activities include writing partisan political blog posts and using one’s government title in any way to support a candidate. The Act is applicable to state and local government employees working in state agencies where the agencies receive funding from the federal government. 

 

Agencies should be able to institute policies preventing their employees from engaging in actions prohibited under the Act.  An agency’s acceptable use policy should address this and other types of legitimate prohibitions.  These include prohibiting employees from posting content that:

 

• Is defamatory
• Infringes on intellectual property
• Constitutes private marketing or private advertising of products or services
• Engages in political activity or solicits or promotes any not-for-profit, religious, political or personal causes
• Contains pornographic, harassing or obscene materials
• Mass distributes communications such as “chain” letters”
• Consists of confidential information or information the disclosure of which is an unwarranted invasion of a person’s personal privacy
• If disclosed, violates the rules of professional conduct governing the employee’s communications  

 

As stated directly within statewide IT policy NYS Policy G09-001: Acceptable Use of Information Technology (IT) Assets, these prohibitions apply to social media activities:

 

http://www.cio.ny.gov/Policy/G09-001/NewYorkStateAcceptableUseBestPracticeGuideline.pdf

 

Agencies should alert and train employees participating in these sites about these and other legitimate restrictions.  Agencies also should moderate the speech used by non-employees on agency sponsored social media sites that might infringe on these accepted principles.   

 

B.      Special Considerations for Public Employees

 

1.      Relevant First Amendment case law:

 

The general rule is that public employees have diminished first amendment rights when they are acting in their official capacity and conducting the business of the State.  The early case entitled Pickering v. Board of Education, 391 U.S. 563 (1968) sets the framework.  In Pickering, the U.S. Supreme Court held that when speech “interfere[s] substantially” with the operations of government, government employers may properly take corrective action against their employees.

 

In the more recent case of Garcetti v. Ceballos, 547 U.S. 410 (2006), an Assistant District Attorney had written a memo as part of his official duties criticizing the failure of his office to dismiss a criminal case which relied upon false testimony. The Supreme Court held:

 

“When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline….So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.”

 

So in setting policy concerning employee speech, negotiating terms with employees about their speech, or evaluating speech by employees on social media sites, the threshold question is whether agency employees were “speaking” pursuant to their official duties, or as private citizens. 

 

1.      Applying the First Amendment to social media -- Factors to consider:

 

The following should be considered by government agencies when addressing employee speech on social media sites:

 

• Despite the admonitions of certain states’ social media standards about mixing personal and professional communications,[2] by their very nature social media sites may blur the distinction between public and private speech.

• Social media sites often in their Terms of Service require users to have a single account with the site and forbid users from setting up alternate online personalities and accounts (such as one for private use and one for public use).

• Maintaining distinct public vs. private personas runs counter to advice from many experts, to the effect that mingling personal and private activities in social media engagements humanizes government employees and reduces the tension some citizens experience when interacting with those whom they perceive as “faceless government drones”.

• Efforts to control discourse from public employees on social media sites by establishment of prior vetting and approval processes seems counter to the facilitation of spontaneous conversations from varying sites using varied tools (e.g. Tweeting from the audience at a conference on one’s hand-held device). Instructions to government employees encouraging their participation in social media also often are not clear as to whether this invitation is extended to the government employee acting in her official capacity, or as a private citizen. 

 

2.      Setting expectations:

 

Because different rules apply depending on the capacity in which an employee is acting, agencies should consider making their expectations clearer:

 

• If an agency is requiring an employee to make postings to social media sites as part of the employee’s official duties, then the employee’s speech and performance may be evaluated by the employer and her speech may be restricted.

• If an agency is inviting an employee to make postings to social media sites as a private citizen about issues the agency is involved with, that speech is generally unrestricted unless it violates acceptable use or other policies or laws (i.e. laws requiring confidentiality) or otherwise substantially interferes with the employee’s performance of her work duties or the operations of the agency. 

 

Pickering v. Board of Education, 391 U.S. 563 (1968); Garcetti v. Ceballos, 547 U.S. 410 (2006).

 

3.      Mitigation strategies:

 

To mitigate against confusion and ensure appropriate expectations, agencies should:

 

• State clearly the specific purposes for which the agency is inviting staff to use the site, and the agencies’ expectations for what they post there.  (Are they permitted to post videos?  Photos?  Statements?  Policies?   What types, and for what purpose?) 

• State specifically whether the agency is requiring or inviting participation in social media,  the extent to which employees’ speech and performance may be evaluated by the employer, and that speech on social media sites may be restricted if it causes substantial interference with performance or agency operations.  Agencies are encouraged to specify in writing the purpose and intent of social media use by the agency and its employees.  In this regard, CIO/OFT has published Empire 2.0: Suggested Practices for Social Networking at http://www.cio.ny.gov/assets/documents/CIO-OFT_Business_Uses_of_Social_Networking_Quick_Card_Final.pdf, in which the bases for CIO/OFT’s use of various social media tools are addressed.  Agencies should likewise address in writing the goals and agency business needs that are to be supported by agency and agency employee use of these Web 2.0 tools.

• Remind employees of the agency’s acceptable use policies in communications describing the workforce’s ability to use social media tools in the workplace and when training employees on these tools.  In this regard, statewide IT policy NYS Policy G09-001: Acceptable Use of Information Technology (IT) Assets, http://www.cio.ny.gov/Policy/G09-001/NewYorkStateAcceptableUseBestPracticeGuideline.pdf  addresses the following acceptable purposes for the deployment of all State IT resources by agency employees, including Web 2.0 and social networking tools:

 

Section 4. Acceptable Uses

  

IT resources are provided to users to assist them with assigned work responsibilities and duties and are intended to be used only for that purpose. Users may use the state government entity’s IT resources to:

 

o   Further the State’s mission;

o   Deliver government services;

o   Facilitate business-related research and access to information;

o   Provide service of the highest quality to its citizens;

o   Discover new ways to use resources to enhance government service;

o   Increase staff efficiency; and

o   Promote staff development.

 

This same Acceptable Use Best Practice Guideline recognizes that State agencies may grant employees the right to use State IT resources, including the deployment of social media tools, for personal reasons.  Such personal use is limited by the dictates of Executive Order No. 7. [3]  These limitations are further addressed in the same Guideline.

 

• Work with agency personnel managers to ensure consistency of the agency’s policies and actions with collective bargaining agreements or employee work rules.

• Consider posting disclaimers where feasible noting that employees are encouraged to speak freely on certain sites (albeit within acceptable use policies) but are not necessarily speaking in an official capacity or on behalf of the agency when they do so.  Similarly to the manner in which agencies now identify authorized signatories to State transactional documents, and the scope of their signatory authority, consider defining the specific individuals who have been granted authority by the agency to make formal pronouncements on the agency’s behalf, the scope of that authority, and require these delegated employees when posting to provide specific identifying information such as name, title, agency, and contact information as they post on social media sites, to the extent feasible.  Consider providing prominent notice to the public of this grant of authority and the limitations on its scope.  Consider requiring employees not holding such authorization to specify as they post on social media sites that their postings are made on their own behalves and do not represent an official agency position.

 

A.      May employees post anonymously or with alter-egos on social media websites?

 

Some states’ social media standards purport to forbid anonymous/alter-ego posting, such as California:

 

“Users shall not utilize tools or techniques to spoof, masquerade, or assume any identity or credentials except for legitimate law enforcement purposes, or for other legitimate State purposes as defined in agency policy.”

 

But California’s standard may be written overly broadly, as this prohibition would seem to be enforceable only as applied to employees using State systems to make social media postings.  (The latter is the approach taken within NYS Policy G09-001:  Acceptable Use of Information Technology (IT) Assets (http://www.cio.ny.gov/Policy/G09-001/NewYorkStateAcceptableUseBestPracticeGuideline.pdf).

 

The United States Supreme Court has consistently held that anonymous free speech is a right protected by the First Amendment, so an agency likely could not purport to proscribe that right in an employee’s private activities.  Agencies can, however, forbid such spoofing while using agency tools or whenever an employee is engaging in social media pursuant to his/her official duties.

 

B.      Removing third-party speech from social media sites 

 

Agencies should consider similar prohibitions for speech posted by non-state employees on agency social media sites if it violates the principles mentioned above such as obscenity, lewdness, vulgar language, legal violations (such as defamation or intellectual property infringement) and other forms of speech that the First Amendment does not protect. 

 

However, agency counsel should review carefully the removal of speech constituting critiques of the government or representing viewpoints contradicting the official government position, as they may be covered by First Amendment protections. Factors to consider include:

 

• Agencies should consider posting “Terms of Participation” on sites where they invite comments to ensure postings remain respectful, useful, and further the efficiency sought by creating such sites in the first place.  An example is the “Terms of Participation” of the NYS Senate at:  http://www.nysenate.gov/legal

• The federal Communications Decency Act has a safe harbor provision affording protection from liability for information posted on sites by users when actions are taken in good faith to restrict access to objectionable postings.  Agency counsel should review the Act and note that while in applicable instances it might protect agencies against federal liability if the agency follows the safe harbor provision, the Act does not protect agencies that violate constitutional First Amendment protections.

• Agency counsel should become familiar with what constitutes infringement of copyright (the posting of content not used in accordance with fair use principles or in the absence of a license or other permission to use) or trademark (where the agency similarly does not have permission to use or where the agency is using a mark in a manner likely to cause confusion as to the source of the material or to dilute the value of the owner's mark).

• Fair use is a judicially created defense to allegations of copyright infringement with many provisions now codified under the federal Copyright Act.  To determine whether usage was fair use, courts generally look to factors such as the purpose and character of the use (e.g. commercial versus non-commercial, and/or whether the work was used for activities such as criticism, comment, news reporting, teaching, research, and other related activities), the nature of the copyrighted work; the amount and substantiality of the portion of work used; and the effect of use on the potential market for the copyrighted work.

• Agency counsel should be able to recognize when postings on social media sites may constitute defamatory material, disparaging false statements or representations causing injury to reputation of business, products or individuals.

• Agencies likely may need to remove content, or negotiate for its removal with social media vendors, which invades personal privacy, such as disclosing non-public facts, appropriating without consent individual names or likenesses for commercial or advertising purposes, or the posting of information constituting private information from children protected under laws such as the federal Children's Online Privacy Protection Act (COPPA).

• The Digital Millennium Copyright Act protects service providers from copyright infringement by third parties.  Agency counsel should review whether the agency may qualify as an Internet service provider under the statute, given the provision by the agency of an online forum allowing others to comment and post.  In order to receive protection under the DMCA, Internet service providers must adopt policies providing for the termination of service access for repeat copyright infringers, inform users of the service policy, and implement the policy in a reasonable manner.

 

I.        Other considerations:

 

A.      Advertising and ethical concerns

 

As described by the NYS Commission on Public Integrity, the Code of Ethics, found in Public Officers Law §74, “provides minimum standards against which State officers and employees are expected to gauge their behavior.  The Code is directed at addressing the conflict between the obligations of public service and the demands of private, and often personal financial interest.”

 

The Code of Conduct found in Public Officers Law §74(2) “is intended to prevent State officers and employees from acting in ways that present actual or apparent conflicts of interest.” Section 74(2) states:

 

‘No officer or employee of a state agency . . . should have any interest, financial or otherwise, direct or indirect, or engage in any business or transaction or professional activity or incur any obligation of any nature, which is in substantial conflict with the proper discharge of his duties in the public interest.’”

 

Public Officers Law §74(3) further explicates these standards.

 

There may be ethical concerns when government content appears near inappropriate content.  Agencies should consider any legal and policy limitations on advertisements and endorsements, and the extent to which an agency may be endorsing particular products or vendors, even inadvertently, through ad placement by social media vendors.  NYS’s ethical laws prohibit the creation of even an appearance of impropriety.  The State Finance Law requires that a “level playing field” be established in the treatment of vendors from whom the State procures goods and services.  Agencies may wish to advise their employees to bring to the attention of agency legal counsel any instances where these prohibitions may be violated on social media sites.

 

To the extent an agency’s social networking may have created a situation where the agency’s activities may be perceived as an advertisement, agency counsel should consider taking affirmative measures to correct this perception and ensure the agency has not violated applicable unfair competition, advertising, and deceptive practice laws and regulations.  In this context, agencies should particularly watch for instances in which they may receive free products or services, even the use of a social media site itself, to the extent or in a manner where such benefits are not made widely available to all others seeking such benefits. To the extent these types of questions arise they should be referred to the agency’s Ethics Officer and/or the New York State Commission on Public Integrity.

 

B.      Unwitting disclosures

 

Public employees placing content on a social media site need to be especially mindful to maintain the confidences of their agency business.  Sharing otherwise confidential information in a public forum may lead, even unwittingly, to a violation of New York’s standards of conduct.  Being vigilant about this requirement is a challenge when one is engaged in vigorous, rapid interaction that makes social media sites so attractive.

 

  

C.      Training

 

Agencies are encouraged to train their employees on their acceptable use policies and specifically how their use of social media sites might implicate laws such as the State Procurement Lobbying Law, ethics laws, or Personal Privacy Protection Law.