Judges don't buy the "I'm an idiot about Facebook privacy settings" defense

Filed Under: Facebook, Law & order, Privacy, Social networks

Judges aren't swallowing the "I'm an idiot about Facebook settings" argument.

Man at computer. Image from Shutterstock

That was made clear in a recent case wherein Robert J Sumien, an emergency medical technician in Texas, sued for wrongful termination and privacy invasion after he got fired for posting a comment on Facebook about giving a "boot to the head" to unruly patients.

According to the ruling, delivered on Thursday, Sumien claimed that his employer invaded his privacy because he:

  1. Misunderstood a coworker's Facebook settings,
  2. Didn't know who had access to the coworker's wall postings, and
  3. Didn't know how his employer was able to view his kick-to-the-head comment.

The court summarily dismissed Sumien's arguments, ruling that Sumien hadn't proved that his cluelessness translated into his employer intentionally invading his privacy.

Here's how it all went down:

Sumien worked as an EMT for CareFlite, a medical transport company.

Facebook screen, courtesy of Shutterstock and Annette ShaffHis ambulance partner, Jan Roberts, posted a comment on the Facebook wall of CareFlite employee Scott Schoenhardt, to the effect that she wanted to slap a patient whom she had recently transported.

That comment was read by Delicia Haynes, who's the sister of the company's compliance officer, Sheila Calvert.

Haynes told Calvert about it. Calvert, who was friends with Schoenhardt, read the comment on his wall.

After some back and forth, Roberts posted this on her Facebook wall:

Yes, I DO get upset on some calls when my patient goes off in the house and I have to have a firefighter ride in with me because I fear for MY own safety. I think that is a valid excuse for wanting to use some sort of restraints. Just saying.

To which Sumien posted this comment:

Yeah like a boot to the head. . . . Seriously yeah restraints or actual HELP from PD instead of the norm.

Doctors around computer, courtesy of ShutterstockHaynes read the comment, was offended, notified Calvert, and complained in writing to CareFlite management about both Roberts’ and Sumien’s comments, after which CareFlite fired them both.

Sumien sued CareFlite on the grounds of unlawful termination, intrusion upon seclusion, and public disclosure of private facts.

Sumien argued that employees cannot be fired for engaging in workplace-related discussions on Facebook - an argument that the court deemed irrelevant, given that they were only considering whether or not his employer intruded on his private affairs by reading the comment.

A lower court dismissed all claims. Sumien appealed his privacy invasion claim, which the Second District of Texas/Fort Worth Court of Appeals succinctly rejected on Thursday, noting that Sumien hadn't produced "a scintilla" of evidence regarding privacy invasion.

Was Sumien's comment offensive enough to get him fired? It hardly seems so. It reads as hyperbolic venting.

As Associate Professor Eric Goldman, of the Santa Clara University of Law, writes, either CareFlite overreacted, or there's a backstory that didn't make it into the court filings.

Regardless, there are lessons to be had. As Goldman writes, if you don't understand how a communication platform works, don't use it to post material you wouldn't want the entire world, including your employer, to see.

Even if you've set Facebook privacy to only show your posts to friends, bear in mind that when you comment on other people's posts, your words are subject to those friends' privacy settings.

They're also viewable to their friends.

Know who those friends are before you mouth off.

If you want to learn more about privacy and security threats on the social network and elsewhere on the internet, join the Sophos Facebook page.

Facebook screen image, courtesy of Annette Shaff / Shutterstock. Doctors around computer, Facebook connections and Man at computer images, courtesy of Shutterstock.

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20 Responses to Judges don't buy the "I'm an idiot about Facebook privacy settings" defense

  1. catt · 831 days ago

    I have worked in healthcare most of my life. I understand that working with patients who are frightened and uncooperative can be frustrating..... but I would report someone to their supervisors who considered 'making jokes' about abusing the patients was acceptable under any circumstance----- to my way of thinking joking about it means you have indeed considered acting on your fantasy-------- SICK and dangerous

  2. Another example of this over-politically-correct world we live in, and over-sensitivity.

    So now what, skilled EMT's with the time invested in education, and experience in the field are going to have to look for a job at McDonalds because they "thought out loud"?

    Honestly, I don't care one iota whether a person skilled at their job, including EMT's, is thinking negatively of me, as long as at the time they aren't letting it affect how they're treating/serving me. What they said wasn't even that bad in the first place.

    Just more wasted time mucking up the court system, more wasted money, and more wasted energy. C'mon people, it's time to lighten up.

    • TheDude · 831 days ago

      Basic training to become an EMT takes ~1 month. He was probably just another college drop-out considering who was dumb enough to post that on a public social network. Maybe he should be flipping burgers instead.

    • L. Hulst · 831 days ago

      That is a immature statement. If you don't follow the rules for my company that pays you the big bucks for not verbally or physically harm the person in need of their service then your actions call for a charge of ASSUALT with intent to harm a person in duress. Flat out this is a crime that no company would look the other way and let you do this to a second person. Ask yourself if this would be acceptible to you if this happened to a love one of yours.
      Bottom line to me is this. You should start your own company and then see how long you stay in business while your employees verbally or physically harm patients.Then you would have a better understanding of why this isn't a court dicision in the first place..
      If you want to harm people stop what you are doing and be a policemen. That way you can kill people and get a paid vacation for your actions.

      • InfoSec · 830 days ago

        There is nothing indicating that either person ever verbally or physically harmed any patient. Did you actually read the story and the posts that led to dismissal? The EMTs were complaining about patients who were threatening THEIR safety, and that firefighters or police officers had to escort the patients to protect the EMTs.

      • Nigel · 830 days ago

        @ L. Hulst
        The implication that all policemen are motivated by a desire to kill people and get a paid vacation for it is simply false.

        I'm no fan of coercive political states, but the problem lies more with the state than with the cops. Until the human species figures out that you can't solve problems in human interaction with institutionalized coercion, the police are an admittedly imperfect bulwark against societal chaos, but a bulwark nonetheless. And it's a dirty, thankless job, judging by your attitude. Let's see YOU try enforcing the mess of contradictory, inconsistent laws cooked up by idiot politicians.

        I quite agree that abusing customers is a success-proof strategy, but your perspective isn't even consistent. If you're going to call it a "crime", then how do you intend to rectify it? What is your proposed mechanism of justice? Simply doing away with the police won't solve anything.

  3. Dan · 831 days ago

    Facebook is a public domain. If you are on the page you accept privacy and user agreements - ignorance shouldn't be an excuse.

    • Harry · 831 days ago

      You really should look up the phrase "public domain" before using it again. It's a legal term related to copyright. Your use of it here is completely meaningless.

      • Pat · 830 days ago

        It can be used both ways. Context is king.

      • Dan · 830 days ago

        You should really look up info sec terminology before trying to correct people on an info sec blog. We break things down into different security domains for classification of sensitivity levels.

        Your ignorance is the meaningless part here :^)

  4. jmdaws · 831 days ago

    Reblogged this on itsecthink and commented:
    A good post showing how we as users of the social and internet based sites are just as responsible as the site owners for privacy.

  5. Guse · 831 days ago

    No, what it's a good example of is that nothing you say on the Internet is truly private. It's like posting a sign of it in your front yard.

    It's also a *really* good example of why you should never add co-workers to any social media network. Never.

  6. Monica · 831 days ago

    Medical workers who wish to harm their patients should get out of the field. If they are unable to not take things personally, their words will become actions. Yes, there are some very nasty people out there. It's part of the job to deal with them in a professional manner and not let them get to you. If they have, it's over.

    From another angle, if Sumien worked in the corporate world, and was mad at his bosses, would it have been OK if he expressed a desire to deliver a boot to their heads?

  7. Ruffneck · 831 days ago

    What a crock of junk!!!! I can guarantee that any one working in the medical field that's dealt with unrulely drug crazed patients or a drunk that's spitting and cursing or even swinging at u has thought or even made commits to fellow coworkers like the ones made. The thing is we didn't actually carry out these thought because we ARE professionals.

    I bet Catt is use to working in a big ER with security guards or police. Try working in the back of an ambulance or in a tight little Astar and see if you don't have some different thoughts on restraints!!!

    This type of action is going to end with people restraining patients because they are scared not too. If they don't restrain them but slip up and just make a joke about the situation, they are gonna get fired. What happened to "freedom of speech"?

  8. This is another example of why people should check their privacy settings and lock them down, should they have to do that ? Maybe but then maybe they shouldn't, who knows. My point is that so many people leave their privacy settings open so much so that the public can actually get access to them if they are an able programmer.

    If you go on to the internet and google it there are many sites that present such information for anyone to see. Sites like http://www.weknowwhatyouredoing.com which has caused quite a stir recently highlighting the dangers of posting comments about wanting to hit your boss or being hungover - both of which could get your fired much like what happened to Robert Sumien. Thats not all if you look further there are sites on there you can use to search for any set of keywords and troll through the facebook status's that come up in the search results. One other site called http://www.rantzone.co.uk highlights what people post on their twitter.

    People need to be very careful what they say on these social networking sites. Its very disturbing but also at the same time extremely scary that employers and such can get easy access to this information.

    Lesson to be learnt: Lock down your privacy settings, not just on Facebook or Twitter but everything!

  9. Jack · 831 days ago

    I agree with "@greekdrop", after years as a police officer and other duties dealing with the general public, you sometimes have to laugh about it. I think "catt" is overreacting, as usual in the fact that people need to laugh about things that stress them. As he put it, "like a kick in the head, but seriously...restraints..." seems like it was a joke and that he was agreeing with the other person. When you work in a life threatening job, you have to deal with unpleasant things. They do need to lighten up. But on the other side of the coin, as the article stated don't post items you don't want the world to read, including your employer. I would state nothing that reference my employer some way that could be detrimental, even though I wouldn't think the comment was serious.

    You would have to be very ignorant of the scope of Facebook to not know that it gets many people fired. And many claim ignorance, which isn't going to make it. Remember in years past when someone would send an e-mail and accidentally use a distribution list that sent it to the entire company, include his wife while directed at the mistress?

    I waiting for someone to take advantage of the bio data of someones voice as in the iPhone, for accessing information of requesting a transfer of data with someones 'voice print' identification. How difficult is it to request an iPhone to do something using the data that it keeps for a bio-identifier?

  10. nonnymoose · 830 days ago

    Clearly they should learn my three rules of effctive communication:
    1 Never write when you can speak
    2 Never speak when you can nod
    3 never nod when you can wink.

  11. Tony · 829 days ago

    If the managers at CareFlite simply dismissed the statement as an employee blowing off steam that inaction on their part could expose them to serious liability in a lawsuit.

    While the employees statement is off color it could be argued that he self admitted on FB that he had an attitude problem towards unruly patients. If a patient complained that the EMT arbitrarily assaulted him in some manner all it would take is an attorney snooping around on FB to find that statement which would carry weight in litigation to convince a jury that CareFlite knew the EMT had an anger problem.

    The resulting financial settlement awarded to this "victim" could effectively close down the company.

  12. roy jones jr · 824 days ago

    Tony's post is spot on. It doesn't matter who is and isn't sensitive and you all know very well the freedom of speech comes with parameters. (thats another story)

    Companies have policies in place for a reason (and its not to make life hard for their employees). Professional in your job stems beyond the work you do. If Sumien is as professional as he claims to be, then he should have known how to deal with the stress in his job. And that means knowing to not make angry posts that his company could read. I know because I've made decisions to not post certain things and thought "wait. If I post this, what are the consequences?" Don't let your fit of rage overwhelm you. :P

  13. Internaut · 804 days ago

    Had anyone read Facebooks Terms of Use and Privacy policy? One needs a Philadelphia lawyer to cut through the legalese, but the sort version, they are responsible for nothing, can do to your account whatever they want, without cause or reason, and you cannot hold them liable or responsible for anything.

    Anything posted anywhere is subject to being seen by anyone, at any time.
    I wonder now, what is so hard about that?

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About the author

I've been writing about technology, careers, science and health since 1995. I rose to the lofty heights of Executive Editor for eWEEK, popped out with the 2008 crash, joined the freelancer economy, and am still writing for my beloved peeps at places like Sophos's Naked Security, CIO Mag, ComputerWorld, PC Mag, IT Expert Voice, Software Quality Connection, Time, and the US and British editions of HP's Input/Output. I respond to cash and spicy sites, so don't be shy.