It is common knowledge now that employees have relatively low expectations of privacy when it comes to engaging in electronic communications such as emailing when using employer computers and other equipment. It also is possible, however, at least as a matter of technology, that employee social networking might become fair game for employer monitoring as well.

Indeed, according to press reports an online Communications services company called Teneros has created a software product known as Social Sentry that can automatically monitor the Facebook and Twitter accounts of employees. The cost to the employer would run between $2 and $8 for each employee, with the precise cost being dictated by factors such as the parameters of the social networking to be monitored and the company size.

While prior to advent of Social Sentry employers were capable of doing some social networking monitoring, the value of that monitoring could be outweighed by the sheer enormous volume of social networking data available on the Internet. Social Sentry supposedly will automate the process for employers and make it easier to pinpoint the type of activity for which they have an interest.

Of course, even if employers as a matter of technical capability can easily access the social networking information of their employees or prospective employees, that does not mean that the employers always will be in the legal right when doing so.

For example, employers could get in trouble if they leverage the "friends" of their employees and surreptitiously use those people to gain access to otherwise private information of their employees.

As another example, employers should not gain access to information from social networking sites about prospective employees and use that information to discriminate against them. If an employer went to a social networking site, for instance, and learned that a prospective employee was part of a particular religious group, had a same sex partner, or was pregnant, and as a result chose not to hire that person, the employer could be on the receiving end of a lawsuit if the applicant ever found out.

Just because technological advances occur, it does not mean that their use in all contexts will pass legal muster. It is imperative that employers consult with skilled counsel in this new technological era.

Biography

Eric Sinrod is a partner in the San Francisco office of Duane Morris. His focus includes information technology and intellectual property disputes. To receive his weekly columns, send an e-mail to with the word "Subscribe" in the subject line.

Disclaimer: This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.

Reprinted with permission of Findlaw.com