Teachers gone Wild: Lifestyle Privacy

Many public sector employees are held to higher standards than the average person due to the nature of their position and their potential influence on other people. Should they be? Is this discrimination? Is the discrimination justifiable?

bad teacher

courtesy of sony pictures

At times, we see a morals clause used to address potential misbehavior. A morals clause is a contract provision, typically used in relation to public figures (athletes, acting, news and political personalities) that prohibits the employee engaging in certain acts. These disallowed acts may include inappropriate sexual acts or drug use, but can include requirements that the employee “dress neatly in public, to conduct himself according to the highest standards of honesty and sportsmanship, and to refrain from doing anything that would be detrimental to the best interests of the team or league” (for further information, please see this article).   Engaging in social media insults of one’s employer could fall within a morals clause, but would not be something the typical employee/employer would encounter – although it is becoming more common for executives.  This, however, completely aside from the National Labor Relations Board’s decisions and guidances on social media policies.

Additionally, there are still certain career fields in which the employees are seen to be role models to our youth. One example of this relates to the private lives of teachers (see this story on a kindergarten teacher fired for nude photos). Before the advent of social media, teachers’ private lives were more easily separated from their professional lives. While being subject to public scrutiny may not be new, having one’s personal life so easily available is relatively new, as is facing severe repercussions from them (and this does not acccount for the egregious phenomena of impersonators).  Courts have taken two avenues to evaluate whether a teacher’s private actions are subject to employer review: a public official view or a student-speech view (whether the speech would substantially interfere with the educational duty) (Miller 2011).

Miller states that “[t]here are basically four types of internet speech that could put at risk a teacher’s relationship with his or her school district: 1) befriending students on social media sites and communicating inappropriately with them, 2) criticizing the district, school, students, parents, or the community online, 3) posting what school districts may deem as inappropriate photos  or comments (usually things that are sexually explicit or that promote alcohol or drug use, and 4) commenting on political or social issues.”  Teachers may see more disciplinary action and control if their private-life postings are viewed from a perspective of being a public official and in a position of trust than if considered whether their posting substantially disrupt the educational duty.

The question that we face is “Is this right?” Is it okay to restrict a teacher’s private life because we feel that they should be held to a higher standard than other people? What about cops, firemen, nurses, doctors, lawyers, preachers, etc.? More specifically – or more generally, I guess – is it fair to hold anyone to a certain standard in their private life as long as the behavior is not illegal?

Which brings us to lifestyle laws (more appropriately called lifestyle anti-discrimination laws, but for the sake of brevity and ease of conversation, I will call them Lifestyle laws). Lifestyle laws prohibit discrimination against someone at work based on their personal lifestyle choices – and in most cases, this is directed towards risky health behaviors, such as smoking, as applied to health insurance premiums through one’s employer.  In many states plus the District of Columbia, employers are prohibited from banning employees from smoking off work premises. Plus, twelve states protect the use of any lawful product during non-work hours, such as alcohol or even unhealthy foods. Currently, only California (CAL. LAB. CODE § 96(k)), Colorado (COLO. REV. STAT § 24-34-402.5(1)), New York (N.Y. LAB. LAW § 201-d(2)), and North Dakota (N.D. CENT. CODE § 14-02.4-03) have comprehensive protection statutes that protect employees for any lawful activity outside work.

Not only do the various state laws differ in what behavior they protect, but courts interpret them differently. Once you mix in social media, it’s a circus out there! People should be free to do what they want to do within legal boundaries and laws should not be required to permit people to do so. Good googli moo.

Keep in mind that there are federal laws (Title VII of the Civil Rights Acts of 1964) against discrimination of protected classes and disabilities (Americans with Disabilities Act)- so lifestyle laws are in addition to any protection under these areas. Plus, in general, government employees are protected by equal protection and due process clauses of the federal constitution.

I leave you with this thought – are we as a society free to engage in lawful behavior even when it indirectly impacts others’ lives (such as higher health care costs)?

 

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Electronic Frontier Foundation’s Open Letter to Facebook

Disclaimer: a privacy person at Facebook was in touch with me through mutual friends, but at this time has merely reiterated the request for ID. Hopefully, she is working back channels to help.
letter to fb
The Electronic Frontier Foundation has posted an open letter to Facebook about the social media’s authentic name policy. You can sign this open letter on that link.

“Even though Facebook claims it has improved its policy, users continue to get kicked off the site, losing access to support groups, an essential political platform, and all their contacts and content. Some users have even had accounts reinstated with their legal names, putting their safety at risk.”

This resonates with me on so many levels, especially the loss of access to support groups. I use one support group for my autoimmune disorders and it’s on Facebook. In addition to losing the connection with so many people in one convenient spot, I lost the one support group that truly helped me make it through life’s challenges. Good googli moo! I just admitted that social media is truly a worthy endeavor.

Here are the demands:

• Commit to allowing pseudonyms and non-legal names on your site in appropriate circumstances, including but not limited to situations where using a legal name would put a user in danger, or situations where local law requires the ability to use pseudonyms.

• Require users filing real name policy abuse reports to support their claims with evidence of abusive behavior.

• Create a compliance process through which users can confirm their identities without submitting government ID.

• Give users technical details and documentation on the process of submitting identity information such as where and how it is stored, for how long, and who can access it. Provide users with the ability to submit this information using PGP or another common form of encrypted communication, so they may protect their identity information during the submission process.

• Provide a robust appeals process for users locked out of their accounts, including the ability to speak to a real Facebook employee.

I openly signed the letter and encourage others to do the same. If proof of identity – if real names – were so vital to social media, it would be a requirement to sign up. People would know this openly beforehand.

A variety of groups signed the letter, including the ACLU, the Center for Democracy and Technology, Digital Rights Foundation, One World Platform, Global Voices Advocacy, and Human Rights Watch. Given the incredible amount of damage that this policy can cause to people – from direct threats to indirect – one would think that Facebook would rethink this policy. Perhaps the most frustrating is that once you are blocked for their review….you cannot reach anyone there to discuss it.

To be clear: my real name is K Royal and I support social media. I loved Facebook and its potential.

signed,
Authentically K Royal

Revenge Porn – Cyber Rape – what is it and what can we do to stop it?

Having non-consensual nude photos of you posted online – revenge porn or cyber rape – is a problem few ever imagined we would have. Revenge porn, a form of cyberbullying, is a problem that destroys lives and careers, yet is not adequately addressed by laws.

Last week I attended the Berkeley Center for Law and Technology’s Privacy Law Forum in Silicon Valley #BCLTPrivacy. The lunchtime keynote speaker was Danielle Keats Citron, professor of law at the University of Maryland law school, who spoke on Revenge Porn, Hate Crimes, and what Silicon Valley and the law should do now. Riveting topic. Heartbreaking topic.

One would have to be living completely off the radar to not be aware of the issue of revenge porn. However, it only takes living a normal life to be unaware of the prevalence and damage of revenge porn. As I listened to Citron speak, I was horrified, saddened, outraged, and driven to help.

The lady who founded the Cyber Civil Rights Legal Initiative, Holly Jacobs, was a victim of revenge porn. Private pictures and videos of her nude that had been shared only with a partner started popping up seemingly everywhere and not just on revenge porn sites – no, on Facebook and popular online dating sites – with titles inferring she slept with her students, included contact information, family names, work information, etc. She was not able to get all websites to remove the photos, and those that would wanted to charge her (blackmail essentially) or jump through a bunch of hoops to prove she was the individual in the pictures and she had the right to revoke authorization or prove she never provided authorization. How do you prove something that never happened? She wound up changing her name and trying to help others.

Danish journalist Emma Holten took another tactic, one similarly used  by Jennifer Lawrence when nude pictures were leaked. They both responded with their own version of nude pictures. The key difference had nothing to do with whether you and I see their pictures, it has to do with their choice, their consent. I remember how many people criticized Jennifer – how could she oppose the leaked photos when she released her own photos? and other similar stupidities uttered in ignorance.

Choice.

Consent.

Revenge porn is not a rare event. The question is what can we do to help end this problem? Many laws addressing cybercrimes involve communications with that person directly. Revenge porn is not usually communicating with that person. It’s posting nonconsensual sexually explicit photos without that person’s consent, often with other personal information, often pretending to be that person, and even using photoshop to mock up nude pictures. Suggesting that the individual desires a rape scenario, with information identifying where the person will be at a particular time.

The solution is not to tell people to stop sharing such photos (although prudent people probably shouldn’t share such images). We live in a technological world where people can form relationships around the world. Certain relationships are formed on intimacy and technology provides a forum to be intimate. That is another debate. But don’t try to solve this problem the way people used to (some still do) try to solve rape by blaming the victim. Blame the criminal. period.

Social media companies need to ban such material, like Facebook recently took a major step, as did Twitter. States need to pass laws that truly address the problem. Law enforcement need to train personnel how to interact with a victim of this type of cybercrime.

This is not a feminist issue as alleged by some authors. It is not a misogynist issue as alleged by others. It’s a human issue with the goal to destroy someone’s life through technology, in the most base, vulgar way possible – ways which encourage someone who wishes to do physical harm to another to do so.