Social Media & Municipalities: A Roundtable with SmithAmundsen’s Municipal Attorneys 

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November 17, 2017
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In our digital evolving age, social media platforms create a multitude of opportunities to engage the citizenry. They also create a minefield of dangers for municipalities to avoid.

Moderator, Julie Proscia, led a discussion with our panel of municipal law attorneys Mike McGrory, Carlos Arévalo, Alan Farkas, and Mike McGowan, to answer some questions to help you avoid the landmines and successfully avoid the pitfall traps.

Moderator: What is the biggest challenge that you see for governmental entities in a time of interconnectivity where everything is posted, tweeted, blogged etc.?

Carlos Arévalo: Properly managing and monitoring the flow of information in social media is a huge challenge even for the most sophisticated entities. It is crucial to put a qualified, innovative and knowledgeable individual in charge who is tasked with creating proper content and/or evaluating citizen interaction, even if it is critical, pursuant to set guidelines. Of course, these responsibilities may reside in more than one individual, which will depend on the municipal operation.

Mike McGrory: Municipalities have issues very similar to businesses when it comes to social media. Julie, you point out that anything can and will be posted on social sites. I agree with Carlos in that the formal posting from a municipality needs to be done by the right people, but I would also caution and say that municipalities need to be thinking of their internal communication strategy and working with experts to craft very specific messages to staff, especially in the case of a hot button issue. Your seemingly innocuous internal email about the mishandling of a situation can easily find its way online.

Moderator: What is your best advice to municipalities that are struggling with the heightened comments and exchanges of their constituents on their official social media platforms?  

Carlos Arévalo: I would begin by  recommending that clients: 1) Prepare social media policies that establish  how  postings will be handled; 2) Identify guidelines regarding what is acceptable and what is not acceptable; 3) Describe expectations regarding content for the public; and 4) Indicate the manner in which removed content will be handled.

Alan Farkas: I’m adapting this advice from a bumper sticker: dance like nobody’s watching, text like it will be Exhibit A at trial. 

Moderator: Are social media posts public record?

Julie Proscia: Maybe. Posts that are made by the official governmental entity or by a private account being used to distribute information by that entity are public records IF the content is unique, i.e. a governmental entity only needs to save the first announcement regarding free electronic recycling – not all 50 unless the versions significantly differ.

Moderator: How should government entities store their social media content to comport with FOIA, Open Meetings Act, etc.?

Mike McGowan: Government entities should store their social media content using third party software that captures information and records it automatically. A few examples of platforms that accomplish this include: ArchiveSocial, Global Relay, and Ownbackup.

Moderator: How has social media changed the way that you litigate?

Mike McGowan: Social media has had a profound effect on how we litigate. Pre-litigation intelligence has become readily available via sites like Facebook, Twitter, and Instagram. Furthermore, social media searches of clients, opponents, and witnesses is now part of the minimum level of due diligence that we often perform. Information that previously had to be discovered is often posted through social media for the entire world to see, thus allowing litigators to access this information. Courts have accepted that there is no reasonable expectation for user privacy, given that users have knowingly made their social media information available to the public.

Alan Farkas: Social media is both an influencer and viewfinder into the public, including the jury. In some cases, the parties may have access to the information being consumed by the jurors, and the portal may be focused on the 12 individuals in that box. Of course, the jurors have their own portals, and despite admonishing them not to do so, the jurors are looking up the judges, the lawyers, the witnesses, the parties, and sometimes each other too. And the final tool is social media as a 24/7 private investigator on all witnesses and parties who come before the court. An unscrupulous lawyer can use these tools to manipulate any of the players in a trial. A skilled litigator is aware and weary of the need to play defense across the internet while also making ample use of its many gifts. This often requires counsel to use social media and public relations consultants in high profile cases. Of course this is all new within the past ten years.