‘Privacy’ And ‘Smartphone’ Are Mutually Exclusive Terms

March 6, 2012       Gary Morton      

Since the dawn of the smartphone era in 1997, and especially since the first camera phone was introduced to the United States market five years later, nonprofits have wrestled with privacy and safety issues that have developed with the spread of instant communications.

One of the first major areas of concern arose after Sprint and Sanyo introduced the first cell phone with a camera in 2002, sparking a rage that transformed the cellular communications market. Now practically every cell phone has the capability to take still photographs or video. Combined with Internet capabilities of most phones today, a compromising photo taken in a locker room or backstage, or an unflattering shot elsewhere on the nonprofit’s campus, say in a small city like Sweetwater, Texas, may be viewed in a matter of seconds in New York or Paris or Istanbul.

That drastically increased nonprofits’ risk management concerns regarding cell phone use beyond the already serious concern of cellular phone usage while driving the organization’s vehicles or transporting its clientele. Now, the risk of inappropriate photos taken at the nonprofit or its activities, or by its staff and volunteers, and the use and misuse of texting and e-mail capabilities, could affect the privacy expected by clients and by staff.

One of the more obvious ways nonprofits have responded is to restrict the use of any cellular phone with camera capabilities — in essence, the entire cell phone market in the United States — on their grounds. The Merrimack Valley YMCA in Lawrence, Mass., for example, unveiled a policy about six years ago limiting the use of such phones and any other video recording devices to the lobby of its campuses unless explicitly authorized in advance by its executive director. “Anyone caught taking pictures of another person without his or her permission and knowledge will be prosecuted to the full extent of the law,” according to a prominently posted notice.

“Members have respected the policy. We have not had any problems,” said Elizabeth Covino, Merrimack Valley Y’s vice president of marketing and development. “Sometimes we have to remind them to use a cell phone in the authorized area.”

The liability of nonprofits regarding the use of smartphones remains an issue of discussion. The Nonprofit Risk Management Center suggests that nonprofits “adopt practical guidelines and enforce them consistently,” said Melanie L. Herman, the Leesburg, Va., center’s executive director.

“The appropriate guidelines for smartphone or cell phone use depend wholly on the nature of the nonprofit, the clients it serves, the caregivers it employs as staff and volunteers, and the nature of the services provided. There is no single policy that is appropriate for all, or even most organizations.”

Nonprofits have faced a series of challenges raised by the use of modern technology, Herman said, starting with use of cell phones while driving on behalf of the organization. They have expanded over the years to include “a reasonable expectation of privacy” both for clients and employees and volunteers; distraction of nonprofit representatives from their duties and responsibilities while using smartphones, and inappropriate communications.

“The research on multitasking and cell phone use suggests that multitasking is a myth, and that someone using a smartphone or cell phone to talk or text cannot be concurrently focused on another task (such as driving or supervising children) and expect to do both well,” she said.

Use of smartphones to communicate with clients is a double-edged sword since it is an effective way to communicate in many situations. “Text alerts have become a popular safety device at certain nonprofits, including institutions of higher learning,” Herman said. “But again, any adult employee or volunteer should be cautioned about the critical importance of using professional language and terms, avoiding the use of terms or language that is sexually suggestive, violent, or otherwise inappropriate, and organizations that intend to use texting as a form of regular communications with minors are well advised to obtain parental permission before doing so.”

As a simple rule, she said, “They should be cautioned against saying anything in an email or text that would be embarrassing or inappropriate if spoken aloud or published in the nonprofit’s newsletter.”

Those staff and volunteers who do not follow the nonprofit’s policies should face consequences, she said. “Action must be taken in the event of serious violations,” such as texting a child in spite of a parent’s expressed wishes. Any staff member or volunteer who uses inappropriate language — that which is sexually suggestive, profane or violent — in text or email messages “should be subject to timely discipline, such as suspension pending an investigation or dismissal.”

Inappropriate language also includes verbal harassment and bullying, Herman said. “Things that shouldn’t be said are more likely to be said when two people are communicating by texting or e-mail,” according to some research. Since email records are permanent, they could be retrieved as evidence should a lawsuit result.

While insurance should cover situations such as a claim of sexual abuse based on text messages sent to a child by an adult leader, under the nonprofit’s sexual abuse policy, Herman said insurance does not protect the organization’s image from being damaged. “Any inappropriate communications by an employee or volunteer pose a risk to the nonprofit’s ability to advance its mission and service the community,” she said.

Thomas B. Nedderman, an attorney with the Seattle, Wash., law firm Floyd, Pflueger & Ringer, noted the difference between misuse of computers owned by a nonprofit — whether by staff, volunteers, or clients — and use of smartphones in that smartphones generally are purchased by the individual user, not the user’s employer. The organization can monitor use of email sent from its computers, for example, but has no way of monitoring smartphone usage.

That does not exempt the nonprofit from establishing guidelines regarding smartphone usage as a representative of the organization. Should a lawsuit be filed, “if you have guidelines you could produce, you could say, ‘We properly instruct our employees how to use these devices,’” Nedderman said. “You can’t police every action your volunteer or employee takes, but you can have guidelines.”

Protection of minors becomes more problematic, given the accepted, general use of new technologies to communicate. Use of text messaging, seemingly second nature to many of today’s students, to inquire about a homework assignment opens the door to unintentional consequences, Nedderman said.

He cited litigation in which a male teacher and female student began texting one another in an innocuous manner, regarding assignments and school functions, but grew into an inappropriate context. While the school had “no easy way to monitor” the exchange, they exposed the nonprofit to liability since “they’re communicating with the students in the context of ‘I’m the teacher, I’m here to help you with your school work”

Again, he traced the issue back to how in this case a nonprofit could establish ways to monitor electronic conversations between students and teachers, such as requiring the use of school computers to email parents or students regarding class assignments or extracurricular activities “rather than one-on-one contact through texting on personal phones.”

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Gary Morton is a Delaware-based freelance correspondent for The NonProfit Times.