By KIMBERLY MORRISON
Jacksonville Business Journal

When advertising budgets shriveled last year, more businesses submitted to the popularity of Twitter and social media as a low-cost marketing alternative. But a new wave of e-remorse is emerging amid growing concerns over security, privacy and the disappearing distinction between personal and professional lives.

"People adopt new technologies quickly, yet don't always think about the liabilities of using them," said technology-law attorney Roy Hadley of the law firm Bryan Cave LLP.

Businesses are not likely as protected as they might think. For starters, many companies haven't updated their electronic-communication policies since they were established and have policies that don't address Twitter, smartphones or work computers at employees' homes. The policies also might not establish what electronic information is proprietary and what is not.

That becomes problematic when large files and databases can be easily downloaded to a phone or sent to a home computer; photos can be taken discreetly and transmitted instantly; and office conversations or boardroom meetings can be publicized in 140 characters or less.

"The evolving nature of the technology has really outpaced employers' efforts to keep up and legal protections at this point," said Richard Margulies, an employment-law attorney and resident manager at Jackson Lewis LLP.

Courts are seeing more cases emerge concerning business and employee use of emerging technology, particularly those where mixed personal and professional uses of electronic communications complicate privacy laws. And they are showing more consideration for employees whose privacy may have been violated.

This month, the U.S. Supreme Court agreed to review a case between a California police department and an employee and whether the employee had a reasonable expectation of privacy for text messages sent on a company-issued pager.

Although the case involves a public-sector employee, the decision could be the basis for future rules concerning private-sector businesses and employees using electronic media.

A federal appeals court decided that the employer's decision to read the messages without cause violated the officer's Fourth Amendment right against unreasonable searches, but acknowledged that the "extent to which the Fourth Amendment provides protection for the contents of electronic communications in the Internet age is an open question."

Lawyers believe it is the tip of the iceberg in what is expected to be a wave of new legal cases that question the rights of individuals versus their employers in an electronic era.

"There will be a lot of work generated from the expansion of social media," said Brenda Ezell, owner of the Jacksonville, Fla.-based Ezell Law Firm. "It's going to be a big growth area in law."

In many cases, old laws apply to new technology. For example, companies are increasingly conducting background checks using social-media sites such as Facebook and Twitter without considering whether what they find and do with that information violates employment laws. But using social-media sites as a way to weed out undesirable candidates can land businesses in an employment-discrimination case.

"There's a saying in employment law that it's not the question that gets you in trouble, but what you do with the information," Margulies said. "If you look on someone's Facebook page and it lists a religious organization they belong to or (that they) support gay rights or have a disability, you can say, ‘We don't want that kind of person working for us.' But if you were in a job interview, you wouldn't be able to ask those kinds of questions."

And it's not just what the employer is doing that can become problematic, but what they aren't doing. At a time when it is more important than ever for businesses to monitor how their employees are using electronic communications, shrinking budgets have made the sometimes-expensive safeguard an expendable operation. And few actively monitor what is being said about the company on blogs, message boards, Twitter and social-media sites that might constitute libel or slander.

"You have to be more proactive," Margulies said. "Businesses and IT departments need to make sure if there is monitoring of employee usage, it's not just a system that exists, but is actually monitored."

Having a policy in place that addresses all aspects of electronic communications in the workplace is the first thing businesses should do to protect themselves, said Brian Cabrey, a partner at Zisser Robison Brown Nowlis Maciejewski & Cabrey.

"A lot of businesses just don't have policies on this stuff," Cabrey said. "My single biggest piece of advice would be to educate yourself and develop a policy to deal with it. Businesses being private enterprises can set whatever policy they want and say, ‘This is what our expectations are and what you can and can't do.' "

Hadley said anyone who blogs, tweets, posts on Facebook or sends text messages should be extremely cautious. Thanks to the growth of cheap data-storage capability, nearly every Internet page ever created is easily recoverable. Phone companies also retain text and call records long after they've been erased. That means information can't be disregarded by simply deleting it.

"Once you hit ‘send,' your thoughts are out there for eternity," Hadley said.