It will only be a matter of time (if it hasn’t happened already), until someone gets his/her employer in trouble for using Twitter, the latest social networking and “microblogging” craze.  (Does it ever end?)  As if the well-known dangers of e-mailing haven’t been documented enough over the years—and have been a boon to litigators—Twitter may soon up the ante.

The issues are really no different than those that have already surfaced with e-mails.  Issues involving privacy, confidentiality, defamation, sexual harassment, discrimination, and copyright infringement (to name a few potential problem areas) have been well-litigated over the years.  By now, most employers hopefully have a formal e-mailing and internet usage policy in place for their employees to follow.  Instilling a healthy sense of fear never hurts.  

So how much harm can someone do with 140 characters or less on Twitter?   As a lawyer, I’ve learned never to underestimate the ability of clients to get themselves in all sorts of trouble.  As with texting, it’s only a matter of time before we all read about some clueless employee who gets him/herself fired and puts the employer in legal hot water.  And of course, it’s only a matter of time before lawyers start subpoening these types of electronic communications also.  Just because a message is only a few characters long doesn’t mean that it won’t be stored and saved—possibly forever.

But as noted by one commentator in the article linked-to above, Twitter messages are “quick sound bites and instantaneous” and “aren’t the most well-thought out.”  Someone who is upset, angry, or frustrated could easily use poor judgment and—in a few characters or less—wreak all sorts of havoc on his/her employer.  And once it ends up in the Twitter universe, it’s there for all to see . . . again and again and again.

Needless to say, an employer’s e-mail and internet usage policy should be specifically updated to account for services such as Twitter.  Employees must understand that even very short messages (designed for the inner ADD child who seems to live in all of us these days) can create liability.  Not that it will stop everyone, but it will stop some people.  And the ones it doesn’t stop?  Well, I’m just a “tweet” away!   

France once again reminds us how fortunate we are to live in a truly free country, where freedom of speech is often taken for granted.  Apparently, France is in the process of trying to pass a law to ban what it deems to be “pro-anorexia” websites and publications.  The new law would impose jail sentences of 2 to 3 years and impose fines of 30,000 euros ($47,400) to 45,000 euros ($71,100) on anyone who violates the law.  The legal standard is dubious (if not laughable):  ”Incitement to excessive thinness by publicising of any kind.”

According to the French health ministry, 90% of the country’s estimated 30,000 to 40,000 anorexics are young women, who are supposedly under constant pressure from the fashion, advertising, and movie industries to attain unhealthy weight levels.  No one will deny that encouraging young, impressionable girls to starve themselves, vomit, lie to doctors, and take appetite suppressants are bad things.  But the idea of trying to ban and fine websites—and jail the site operators—is a draconian cure that’s worse than the disease. 

And talk about a slippery slope.  What’s next?  How about sites that encourage excessive weight gain? Or consumption of fried foods?  Or excessive exercise (surely that’s killed quite a few people)?  And how does one even define “excessive thinness” anyway, let alone “incitement”?  The French ban doesn’t have quite the same urgency to it as the “incitement to imminent lawless action” standard articulated by the Supreme Court in Brandenburg v. Ohio to ban certain speech in extraordinary situations.  While encouraging anorexia is appalling, it certainly doesn’t rise to the level of mandating censorship.  The French government may be asking the right questions, but it’s getting the wrong answers. 

Of course such a law could never be passed in America.  Or rather, it could never go into effect.  It would be struck down by the courts so quickly on content discrimination, overbreadth, and/or vagueness grounds that the ink wouldn’t have time to dry.  Our democracy subscribes to the “marketplace of ideas” concept which provides that a free exchange of ideas will allow for the creation of the best policies and practices.  Quite simply, the cure for bad speech is good speech—or at least, more speech.  (While our government can curtail advertising for things such as smoking and alcohol, “commercial speech” is subject to some restriction and regulation.)

This isn’t the first time that France has demonstrated its tendency towards censorship.  In November of 2000, a French court ordered Yahoo! to stop selling Nazi memorabilia to French internet shoppers on auction sites due to France’s law that banned incitement of racial hatred.  (The French do like that “incitement” standard, don’t they?) Of course, this is the same country that passed a law banning the use of foreign words on television shows, radio broadcasts, business communications, and public service announcements if the French language had a “suitable local equivalent” which could be used instead.  What chutzpah!  What cojones!  Oh well, c’est la vie . . . .

Talk about a slow news day.  A recent article in USA Today discusses the so-called “fine print” in ISP contracts and then concludes that it doesn’t really matter anyway.  This non-story highlights the fact that ISP contracts, which their company lawyers draft, give ISPs rights to read their subscribers’ e-mail, block their subscribers from accessing certain websites, and can terminate their subscribers for overusage of their networks.  The horror.  Imagine that?  A business that protects itself.  The shareholders will be outraged.

As an attorney who drafts these contracts, this article is much ado about nothing.  Yes, ISPs put all sorts of language into these agreements to make sure that their services are not abused by users.  But simply because an ISP has the right to read a user’s e-mail or block a user from accessing certain sites doesn’t mean that it will actually do so.  The article makes it sound inevitable.

An ISP, like every other business in America, is keenly aware of the public relations disaster that would result if it was disclosed that they routinely read their users’ e-mails, blocked access to websites, or simply terminated their users accounts due to overusage, without good cause.  They would quickly and perhaps permanently lose users as the media and blogosphere savaged them.  And as they know all too well, everything in cyberspace lives on indefinitely. 

But think of the public relations disaster that would result if it was disclosed that an ISP was aware or suspected that a user was engaging in wide scale spamming, copyright infringement, or the downloading of child pornography.  Or that certain users were hogging bandwidth to the point that other subscribers’ service was affected, while the ISP took a laissez-faire attitude?  It’s not exactly a model of corporate responsibility in these post-Sarbanes Oxley times.  The blogosphere would again be buzzing, albeit for different reasons.  You’re damned if you do, and damned if you don’t.

Furthermore, some of these clauses are economic necessities.  The RIAA has begun targeting ISPs whose users engage in massive and sustained downloading of copyrighted music through their networks.  If an ISP suspects that a user is downloading copyrighted material and does nothing, it can be held liable for contributory copyright infringement in certain instances.  But by terminating the offending user’s account, it may insulate itself from liability.  The “fine print” of the contract allows an ISP to do so.

Is an ISP contract really that different from signing a lease with a landlord?  A landlord has the right to access your apartment with or without notice and can potentially invade your privacy.  A landlord puts certain restrictions as to how its property can be used and how many people can live in it.  And a landlord can evict you under the right circumstances.  While internet access is certainly important nowadays, so is having a place to live.  Yet many tenants have rules not unlike what their ISPs impose, but don’t assume that their landlords will exercise them indiscriminately.

So the contractual provisions such as those described in the article are not necessarily a bad thing.  It all depends upon the circumstances.  If an ISP does include a provision that a court finds to be unfair or onerous, it can be struck from the contract (to say nothing of the scrutiny the ISP would get from that state’s attorney general).  So it’s not as if an ISP can do anything it wants.  While it may sound like this is a case of “ISPs gone wild,” the simple fact is that—for the moment at least—this was an article in search of a story.  But when an ISP does overreach or overreact, I’m sure we’ll hear about it somehow.