NJ Medic Loses Facebook Discipline Claim

A paramedic for Monmouth-Ocean Hospital Service Corp. (MONOC) has lost a federal court lawsuit that alleged her employer illegally accessed and used a Facebook post to discipline her.

Deborah Ehling worked for MONOC since 2004. In June, 2009, in the aftermath of a shooting incident at the Holocaust Museum in Washington, DC, she posted the following on her Facebook account:

An 88 yr old sociopath white supremacist opened fire in the Wash D.C. Holocaust Museum this morning and killed an innocent guard (leaving children). Other guards opened fire. The 88 yr old was shot. He survived. I blame the DC paramedics. I want to say 2 things to the DC medics. 1. WHAT WERE YOU THINKING? and 2. This was your opportunity to really make a difference! WTF!!!! And to the other guards….go to target practice.

While Ehling’s Facebook account settings limited her posts to her 300 “friends”, one of those friends forwarded the posting to one of MONOC’s managers.

According to the lawsuit: “After MONOC management was alerted to the post, Plaintiff was temporarily suspended with pay, and received a memo stating that MONOC management was concerned that Plaintiff’s comment reflected a “deliberate disregard for patient safety.” In response, Plaintiff filed a complaint with the National Labor Relations Board (“NLRB”). After reviewing the evidence, the NLRB found that MONOC did not violate the National Labor Relations Act. The NLRB also found that there was no privacy violation because the post was sent, unsolicited, to MONOC management.”

Ehling had a number of other disciplinary issues and was later terminated. She sued in federal court alleging discrimination, wiretap violations, FMLA violations, and privacy violations. The entire case is provided below but the focus of this posting is on Ehling’s claims relative to her Facebook post.

The crux of Ehling’s argument is that MONOC illegally accessed her Facebook posting without her consent in violation of the federal Stored Communications Act.  Graduates of Strategies for Managing Fire Departments in the Digital Age will recognize the Stored Communications (SCA) as being part of the Electronic Communications Privacy Act, the law that extended the coverage of wiretapping statutes to various forms of electronic communications including emails, instant messages, and other electronic data transmissions.

From the decision: “The SCA provides that whoever “(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters or prevents the authorized access to a wire or electronic communication while in electronic storage in such a system” shall be liable for damages. 18 U.S.C. § 2701(a); 18 U.S.C. §2707 (providing for civil liability under the statute).”

In ruling in the case, court concluded that Facebook posts are electronic communications, and more specifically electronic communications that are considered to be in storage under the SCA. In the court’s words: “In other words, the SCA covers: (1) electronic communications, (2) that were transmitted via an electronic communication service, (3) that are in electronic storage, and (4) that are not public. Facebook wall posts that are configured to be private meet all four criteria.”

The court went on to conclude that MONOC did not violate the SCA or the ECPA because Ehling’s co-worker who forwarded the posting to management lawfully possessed it. He was an intended recipient of the electronic communication and as such had the lawful right to provide a copy to MONOC.

In conclusion, access to Plaintiff’s Facebook wall post was authorized by a Facebook user with respect to a communication intended for that user. Therefore, the authorized user exception applies and Defendants are not liable under the SCA. Accordingly, the motion for summary judgment on Count 1 is GRANTED.

Here is a copy of the decision, issued on August 20, 2013. Ehling v MONOC

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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