The Legal Risks of Social Media for Public Entities & How to Avoid ThemAuthor: Sam Bradley
For public agencies and school districts using social media, engaging with citizens and informing constituents has never been easier. Using social media creates a public forum and dialogue that promotes an exchange of ideas and information between agencies, districts, and the people they serve. Win-win right? Well, by now, we’re all aware of the pitfalls and traps of social media. Trolls, misinformation, spam, and offensive language are a few of the problems that plague agencies and public officials using social media. A social media policy on content moderation and user access for your agency or district is essential. But what about when that deleted post or blocked user turns into a records request, or worse, a lawsuit? This is where an archiving tool can help with the legal risks of social media.
A comprehensive social media archiving tool can help protect your agency in the event of a records request or First Amendment-related lawsuit. Agencies and districts using an archiving tool can produce deleted content and lists of blocked users, combat decentralization among account owners, and respond efficiently to requests of all complexity and size for social media content.
Social media is a public record in all 50 states and a records request for social media content can come in many forms regardless of agency size or budget. We’ll discuss some examples below of public entities that faced social media records requests or related lawsuits and how an archiving tool could have helped.
Legal Risks for Private Messages and Large/Complex Requests
A records request can be made not only for posts and comments but direct or private messages as well. Which was exactly the case for Prince William County Schools, VA. The school district was subject to a records request for 10,000 direct messages exchanged from the district superintendent’s official Twitter account over a two year period. Additionally, the district hired a forensics firm to investigate and examine the private messages at a reported cost of $580 to $860 an hour. Responding to this type of request may be complicated due to producing the private messages and navigating the substantial volume of records requested. A social media archiving tool with the capability to capture private messages and metadata (a form of digital signature) as well as produce advanced search results of the captured content would enable a district or agency to better respond to this type of incident.
Lost Records, Deleted Content, and Decentralization Compliance
A 2020 study using a sample of 500 agencies and districts found 1 in 12 of their social media records were no longer discoverable less than 12 months later. And while a good social media policy will have standards for removing content, typically offensive, threatening, or spam, capturing content is a 24/7 job! For one, the social networks are not built for nor are they obligated to retain records. Users and account owners can block or delete content at any point, which leaves an agency or district at risk if they cannot produce that deleted or hidden content if named in a records request or lawsuit.
In 2015, Pima County, AZ failed to produce deleted content named in a records request. But if they had in place an archive that captures content in near-real-time, they would have never lost a record even if later deleted from the platform. Furthermore, a county official suggested that staff members could also be to blame, stating “my whole office has access to that Facebook page.” An agency with multiple social media accounts spread across departments or multiple people with access to an account is known as decentralization. Using an archiving solution can reduce decentralization by ensuring the archive is capturing content across all accounts and could be enhanced with an alerting tool for more effective content moderation.
Legal Obligations Around Blocked Users
A public entity blocking users on social media could face First Amendment violations, which court cases across the U.S. are showing to be a costly endeavor. Such a lawsuit cost the City of Irvine, CA $120,000 after their mayor blocked a resident on Facebook. The case argued the page was used as a public forum and citizens had a right to interact with the mayor. Even in cases where blocking is acceptable (offensive or threatening content, etc.), a record of blocked users must be kept. Similarly, the Village of Orland Park, IL failed to fill a records request for a list of blocked users on their social media accounts. The village argued the lists were not subject to public records laws. However, the state attorney general determined they were obligated to do so. An archive with the ability to capture Blocked Lists in real-time along with an advanced search and custom tagging feature can help a public entity respond and protect itself in situations like these.
People are consuming information and news from social media more than ever before and public entities are increasing their social media presence. The social media platforms, though, are not built to retain records in compliance with retention laws and schedules. ArchiveSocial provides the most comprehensive social media record-keeping tool to help agencies manage risk and stay compliant with federal, state, and local public records laws.
Interested in learning more about protecting your public from legal risks on social media?
Check out these helpful resources:
- “Protecting Open Dialogue with Blocked Lists” blog post
- “Why Public Agencies Need a Social Media Archiving Solution” blog post
- “The First Amendment & Social Media: What You Can Moderate Without Risk” blog post
- “Social Media Lawsuits: Are you prepared for a records request?” webinar replay
- ArchiveSocial Product Brief
Learn more about social media legal risks and compliance laws, and how to remain compliant by protecting your records with archiving!