Having finally been convinced that blogging might not be such a bad thing after all and it was almost certain that it would NOT bring about the end of civilization as I had previously believed, I now find myself having to pay attention to YASSS (Yet Another Social Software Site), namely, Twitter.
For those of you who are interested, please pay attention to how many times I can work this very trendy phenomena name – Twitter – into my post without actually having to figure out how to participate in it, i.e., Twitter, (or maybe Tweet) it or understand more about it than I already do and just wait for the hits to roll in. That’s leverage.
Last week, my boss sent me a link to a site called lawyersusaonline.com. Who says all lawyers are technophobes and Luddites? Not me. Some of the most go-ahead technologists I know are lawyers. She asked me if it was worth a First Take (a kind of publication we do to get our first thoughts about newsworthy items into the public domain). Here is the relevant para from the post:
Twitter posts are like any other electronically stored information,” explained Douglas E. Winter, a partner at Bryan Cave in Washington, D.C. and head of the firm’s Electronic Discovery unit. “They are discoverable and should therefore be approached with all appropriate caution.”
Winter said tweets could pose a myriad of legal problems, from the unauthorized posting of copyrighted material to the disclosure of trade secrets or confidential information to explicitly actionable behavior like libel.
I told her that this was not a newsworthy item. She can’t have known: most people who don’t actively follow e-discovery or privacy issues might not.
The reason this is not newsworthy but is worth a blog post and why the Bryan Cave post is a bit behind the times as well, is that simply put, ‘everything that exists is discoverable’ at least pretty much. This would apply to any tweets that had been stored by a company or a user or anyone else. Attorney client communications, data deemed to be inaccessible for technical reasons and a few other kinds of electronic data may be protected, by a specific legal principles or by time and cost constraints. Information deemed to be privileged may also be withheld, but note that you can only do that AFTER there are lawyers involved, meaning you are already in the soup. At that point, you are paying a legal professional to actually read stuff and determine its status in a given case. You’ll already be writing checks.
I’m not claiming this is an exhaustive list, but certainly if something exists, it is subject to legal discovery. Persons outside your company (or not you, in the case of e-mail and other more personal forms) can look at it if they can convince the judge they have a reason. If someone has been up to no good, or are even accused of being up to no good, or wants to prove that they have not been up to anything even remotely unsavory, you can pretty much count on the information being subject to disclosure. It won’t often happen, in fact in the grand scheme of things, it rarely ever does, but it could be.
So you do need a Twitter policy, but that policy mostly consists of common sense. And of course, everyone is likely to act reasonably most of the time. But. The piece goes on to suggest that ‘data needs to be preserved’, implying that we should all be saving Tweets, I guess. That’s where the confusion comes in. The juxtaposition of these thoughts might lead you to believe that it is standard legal advice is to ‘save everything’. As it happens, it often is standard legal advice to save everything. There are very few instances, however, in which you are required to ‘save everything’. If you are covered by the SEC rules that all broker dealer communications be saved for a period of three years, you’d better be doing something about your broker’s tweets. In a way, you’re lucky if you are covered by that rule. Most of us wish the rules were as clear for us. As one SEC official allegedly put it: when we said everything, we meant everything. If someone throws a brick through your window, with a note tied to it, you need to save the note, the brick and the string. But alas, that is not most of us, and we must decide, ourselves, what happens to the note, the brick and the string.
A well thought out, consistent policy, one that is enforced, for all electronic communications, is what you need. And you do need to seek legal advice, as well as best practice advice. Gartner does not give the former, but we do give the latter. We would always recommend that any policy be vetted by legal counsel or outside counsel. However, a policy you craft yourselves, with business leaders and house counsel, using best practice advice from Gartner, the Sedona Group, an ABA publication or a myriad of other sources is going to be a great deal cheaper than some other alternatives.
The law firm of Brian Cave advises us to be cautious, therefore, in our communications. That’s great advice. But how many of you can honestly say your are ALWAYS cautious? Have you ever sent a negative email about a colleague or your company? Attached a copyrighted document to an email, even though you did not have permission to do so? Twittered sarcastically? Posted something on Facebook (like a picture of yourself on the beach when you had called in sick at work?) that may have come to the attention of H.R.? (What? They can look at my Facebook? Yeah, given the right set of circumstances, ‘they’ can and so can the jury).
So, do be cautious but being cautious does not involve a policy of saving everything forever just in case.
As the lawonline post points out ‘de-contextualization’ on media like Twitter is a lot more likely, due to the limited bandwidth. So if you leave it hanging around and it does become subject to discovery, there is gonna be lots more explaining to do. And if you do have a policy, be sure to enforce it, because having an un-enforced policy is worse than no policy at all. Here’s my tip of the day – users don’t go and clean up old email files or any other kind of files even if you ask them nicely. Sometimes they don’t act reasonably or even in their own best interests. Enforcement is a function of legal consideration coupled with IT implementation.
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