Information systems slide currentoverviewoflegalliability

Current Overview of Legal Liability Presented By: Neil Bortnak Internet Consultant Overview - Liability - Workplace Privacy - Useful Legal Resources Disclaimer - I am not a lawyer - You must seek counsel in your home state or country - The following slides and lecture are the result of my own research and opinions - Neil Bortnak does not hold any responsibility for your actions in regard to this information Liability - Definitions - Issues - Trade Secret - Frames & Links - Defamation - Sexual Harassment - Protecting Yourself - Cases Definitions Negligence: The failure to use such care as a reasonably prudent and careful person would use under similar circumstances Foreseeability: The reasonable anticipation that harm or injury is a likely result from certain acts or omissions Definitions Vicarious Liability: Imposition of liability on one person for the acts of another based solely on their relationship An example is the responsibility of an employer for the actions of an employee Trade Secret If a company receives confidential data from a business partner, identified as such by a Non Disclosure Agreement or similar means, the company is responsible for caring for that data as if it were it’s own, but with no less care than would be deemed reasonably prudent Trade Secret - Insecure Corporation receives confidential information from Unwitting Inc - Insecure stores the information in a general purpose directory that is accessible my most staff - An employee sends an e-mail to a competitor of Unwitting Trade Secret - The employee accidentally attaches Unwitting’s file, which is similar in name to the intended file - The competitor receives the information - Insecure could be held liable Example - ISP Ltd offers a web hosting service for large companies - News Inc and SportsCo contract ISP to host and maintain their respective sites - ISP is aware that security is an issue but chooses to ignore the issue due to the high cost 10 How cases are decided - To determine if the intrusion is offensive enough to be a tort the court examines - Degree of Intrusion - Context - Conduct and circumstances - Intruders motives and objectives - Setting 30 How cases are decided - The critical aspect of most cases is measuring the Reasonable Expectation of Privacy vs the Legitimate Business Need - Business need can override personal privacy but bears the burden of proof 31 Other Factors - Laws vary from state to state - Clear policy can decide issue - Burden of proof higher for public sector employers due to 4th Amendment protection against unreasonable search and seizure by a state entity - Private sector can be held to 4th if acting under color of government 32 Other Factors - Email is discoverable Consider your retention and retrieval policies 33 ECPA - Electronic Communications Protection Act - Affects only interstate commerce - Has several exceptions - Can affect commerce in one state if traffic flow moves outside - Unlikely to apply to internal mail systems 34 Protecting Yourself - Reduce the employee’s Reasonable Expectation of Privacy as far as possible - Best way to accomplish that is to have strong policy - Even with policy, limit intrusion - If you must intrude, limit disclosure 35 Protecting Yourself - A good policy would include: - Business use only - Not for improper communication (i.e sexual jokes, hate literature) - No solicitation, you may need to provide and alternative - Right to review e-mail 36 Protecting Yourself - Do not limit the reasons for checking e-mail - Tell employees that deleting a message does not necessarily delete it - Allowance for disciplinary action and employee discharge for policy breach - Have employees sign for it 37 Cases - O’Connor vs Ortega - Bourke vs Nissan Motor Co - K-Mart Corp Store No 7441 vs Trotti - Shoars vs Epson of America - Michael and Lisa Huffcut vs McDonalds - Nader vs General Motors 38 Ortega vs O’Connor - Ortega’s office was searched when he was suspected of mismanagement - Ortega had a private office containing personal effects - Ortega sued hospital - Hospital won summary judgement - Ortega appealed and won 39 Ortega vs O’Connor - O’Connor appealed to Supreme Court - Supreme Court remanded the case to the appeals court for further proceedings and wrote a very split decision - Appeals court retried case - Remanded for new trial due to errors 40 Bourke vs Nissan - Bonita Bourke’s personal e-mails of a sexual nature were discovered by another employee during an e-mail training session for new employees - Nissan issued a written warning - Bonita resigned and sued for invasion of privacy amongst others 41 Bourke vs Nissan - Court issued summary judgement in favor of Nissan because: - Bonita signed a waiver regarding company e-mail policy - Bonita knew others had access - Appeals court upheld decision 42 Useful Resources FindLaw www.findlaw.com FindLaw Cyberspace Law Center cyber.findlaw.com/clc Perkins Coie Internet Case Digest www.perkinscoie.com/resource/ecomm/netcase/ Cyberspace Law for Non-Lawyers www.ssrn.com/update/lsn/cyberspace/ csl_lessons.html 43 Contact Information Neil Bortnak & Associates #144 - 1657 128th St Surrey, BC Canada V4A 3V2 neil@bortnak.com A copy of this presentation can be obtained at: http://www.bortnak.com/library 44 ... country - The following slides and lecture are the result of my own research and opinions - Neil Bortnak does not hold any responsibility for your actions in regard to this information Liability... reasonably prudent Trade Secret - Insecure Corporation receives confidential information from Unwitting Inc - Insecure stores the information in a general purpose directory that is accessible my most... containing client information 24 Protecting Yourself - Exercise “due diligence” - Use policy to prevent employees from making costly mistakes - Policies are an exercise in diligence - Classify information