May Warning Bells article

It Never Forgets

Even when you delete something, it is still there. It can be mined and recovered. I am speaking of the internet. It contains Google, Facebook, Twitter, Youtube, Myspace and many more sites for communications that too often end up as exhibits in personnel complaints.

The Department, on the other hand, does forget. It forgets that there is a meet and confer process and that in 2012 they told the League that they were not going to implement a social media policy, and if they changed their mind, they would notify the League. Imagine the League Directors’ surprise when they found out that the Social Media Users Guide had been posted on the LAN with no opportunity for League input. That is being remedied, but, input or not, the internet is a career minefield. A lot of old rules will be applied to this new medium.

The Social Media Users Guide says the Department’s attitude is this: “All existing Department policies and directives governing general on-duty and off-duty conduct also apply to activity on the Internet…” This can be condensed to “if you embarrass the Department online, you are in trouble.”

What about the First Amendment? It is not as protective as you think. Of course we all know that there is no First Amendment free speech right to yell “fire” in a crowded movie theater, but do you know the analysis a court uses to decide if the Department can punish you for statements you make on the internet? The court asks two questions. First, did the employee speak on a matter of public concern? If the answer is “no,” you don’t even get to the second question. You have no First Amendment protection. So, your personal opinion of your supervisor is not a matter of public concern. However, let’s say what you posted is a matter of public concern. The second question the court will ask is, does the expression impact the efficiency of the organization? Then a balancing act
occurs on which is more important, the speech or the impact on efficiency? It’s not a scale that is pleasant to get on and it sometimes gets really confusing with unexpected results.

Personnel problems aside, there is a practice now called “cybervetting” that is getting more and more common. Cybervetting, according to a Department of Defense report, is an assessment of a person’s suitability to hold a position using information found on the internet to help make that determination. Many police departments use it when checking the backgrounds for entry-level employees. Some employers use it for making decisions about promotions. How long will it be before LAPD cybervets applicants for special assignments and for promotion lists? Are you now being cybervetted unofficially by commanding officers evaluating applicants for positions within their commands? Would you want a file folder of your posts and Facebook wall sitting in front of the panel reviewing your package for your next promotion?

Personnel problems and promotion problems aside, what about testifying against your next arrestee in a criminal trial? Here is what happened to one officer. He had arrested a suspect who had charges of felony possession of a handgun filed against him. At trial, the officer was surprised on the witness stand when he was confronted by the defense attorney with the officer’s Myspace postings. The officer had made a post where he said he was “watching ‘Training Day’ to brush up on proper police procedure.” He made additional comments describing roughing up a handcuffed suspect. The defense attorney used the postings to promote a theory that the officer assaulted his client and planted the gun. After all, the defense attorney contended, the officer’s own words showed that he approved of the corrupt police officers in the film “Training Day” and admitted to excessive force. The arrestee was found not guilty of the gun charge. Flippant comments on the internet had resulted in unintended consequences.

The speed of the communications on the internet has also had some regrettable results. A police officer in Michigan was killed on duty by a hit-and-run driver. The officer’s wife was out of town and the officer’s department had trouble locating her. Facebook did not. Her husband’s death had been an immediate posting and she learned of his death on Facebook.

There are companies out there that specialize in mining the internet for information about people. Employers, attorneys and government agencies routinely hire these companies to use their internet search programs and expertise to find information anywhere on the internet on their target. If you are a witness in a criminal case, you can easily be that target.

You have passwords and limit your site on the internet to just friends? That doesn’t necessarily mean that your account is safe from subpoenas in civil or criminal cases served on your account. Facebook and the other social media sites will comply with lawful subpoenas or search warrants. Most of the time, going to that much trouble is not necessary. Your social media comments and photos are often copied by those with authorization and sent to others (their friends) who distribute the materials to their friends. Electronic information yearns to be free and it often is, despite your best intentions.

On the personnel complaint front, anyone offended can push the print button and forward it to Internal Affairs. It has been done before and it will be done again. The solution to this problem is, of course, simple. Do not put any personal information about yourself on the internet.

Police One, in an article titled “A Survival Guide for Cops on Facebook,” begins with the recommendation that officers should not have a personal profile on Facebook. The article relates that a DUI arrest in Phoenix resulted in the recovery of a CD containing over 30 Phoenix officers and employees’ photographs and information that was culled from Facebook. The article recommends that if you must have a Facebook account, follow these three pieces of advice. 1) Don’t mix the personal with the professional. Do not put personal information and photos on your professional Facebook account, and don’t put anything related to police work on your personal account. 2) Set all of your privacy settings to friends only. 3) Clean up your online act. Don’t say anything that you wouldn’t want printed in the newspaper. Remember that photos taken by others can be posted online and tagged with your name. Stay out of photographs that could be used to embarrass you on the witness stand.

This advice is good for all social media activities. Even this advice does not remove you from danger, it just betters your chances of avoiding the use of information against you. A better plan would be to not engage.

Be legally careful out there.

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