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 Courts in New York, California, Florida, Texas, Arizona, New Jersey and Idaho recently ruled that an employee waived his or her right to privacy with respect to attorney-client email communications that took place via an employer-owned email account. As a result, the American Bar Association (ABA) issued a formal ethics opinion stating that lawyers must warn clients in such circumstances that their communications are not confidential. The ABA opinion states as follows:
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 A new decision has emerged prohibiting companies from adopting and enforcing policies that impact employees’ use of social media. We recently posted a three part blog discussing the role the National Labor Relations Board (NLRB) has adopted with respect to scrutinizing and invalidating policies that expressly or impliedly apply to employees’ use of social media, and protecting employees from discipline or discharge based on content they post to social media sites. Before our keyboard had cooled, however, an Administrative Law Judge (ALJ) issued another such decision in Karl Knauz Motors, Inc. d/b/a Knauz BMW. The Karl Knauz case underscores the points made in our prior blogs, and will serve to further bolster the NLRB’s self-appointed role as protector of social media freedom.
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 Activity is concerted if it is “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” This includes individual action if the employee “seeks to initiate, induce or prepare for group action” or raises “group complaints to the attention of management.” In fact, a mere “conversation may constitute concerted activity, even though it involves only a speaker and a listener,” as long as “it had some relation to group action in the interest of employees,” according to National Labor Relations Board (NLRB) in Meyers Industries, Inc.
The nature and breadth of this definition has significance to social media, which frequently involves on-line conversations about work between employees who are social media “friends.”
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 The “mere maintenance” of a policy or practice that tends to chill employees’ exercise of their right to engage in concerted activity violates the National Labor Relations Act (Act), according to the National Labor Relations Board (NLRB) in Lafayette Park Hotel. Thus, if the policy or practice “explicitly restricts activities protected” by the Act, it is unlawful. In addition, as the NLRB found in Lutheran Heritage, even if the policy or practice does not do so, it still is unlawful if any one of the following is true:
- Employees would reasonably construe the policy or practice to restrict or prohibit concerted activity.
- The policy or practice was promulgated in response to union activity.
- The policy or practice is applied to restrict protected concerted activity.
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 New and exciting developments are a hallmark of the social media revolution. The least expected of these developments, however, is that social media would be regulated by the National Labor Relations Board (NLRB). Over the past few years, the NLRB has reviewed more than 130 social media cases, filed numerous complaints against businesses, issued several decisions, and published a report summarizing its position. Is the NLRB’s activity justified and helpful, or an unwarranted hindrance? The courts have not resolved that issue yet. Until then, businesses should beware not to unwittingly stumble into these legal problems.
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 The leader of McLane’s Privacy and Data Security Group, Cam Shilling, has been identified and interviewed as a “Thought Leader” with respect to Data Privacy by Beagle Research Group, LLC. You can read the interview at http://www.beagleresearch.com/.
Beagle Research Group, LLC is a market research and consulting firm focusing on front office business processes and white collar productivity. The company is led by Denis Pombriant, who is a well-known analyst and thought leader in the CRM space. Denis writes for CRM Magazine, Destination CRM, Search CRM, and CRM Buyer, conducts research in emerging areas of front office technology and business, and consults regularly to many of the leading companies in CRM.
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 The United States Department of Health and Human Services has issued a voluntary model privacy notice for personal health records (PHR). The model notice is a standardized template that PHR companies can use to inform consumers about their privacy and security policies and procedures. The notice is similar to other consumer oriented “labels” that have been developed for other industries, such as the nutrition facts label for food, and the model privacy notice for the financial services industry under Gramm-Leach Bliley. However, it focuses only on some important information, and does not substitute for more comprehensive privacy policies.
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 The Senate Judiciary Committee approved three data security bills on September 22, 2011. Several other bills are pending in the Senate and House of Representative, some which we discussed in a prior post. Therefore, while it is still unclear what national data security legislation Congress will ultimately adopt, it is becoming increasingly clear that the United States will soon have a federal data security law.
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 The United States Department of Health and Human Services issued a proposed rule that expands the rights of patients to access test results directly from clinical labs covered by HIPAA. The rule would amend the regulations under the Clinical Laboratory Improvement Amendments of 1988 (CLIA) to require that, upon a patient’s request, the lab must provide access to completed test reports concerning the patient. The proposed rule was published on September 14, 2011, and has a 60 day comment period.
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 Social networking sites have over one billion users worldwide. Facebook – the most popular – has over 500 million worldwide and over 130 million in the United States. Facebook users spend over 700 billion minutes per month on the site, whether posting pictures, providing status updates, or making comments on their friends’ walls.
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