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Social Media and Surveillance in LTD Cases

Social Media Surveillance

Is Social Media Surveillance Legal?

 It is perfectly legal for disability insurers to spy on your daily activities. They can hire someone to follow you around with a video camera (“video surveillance”) to document your physical exertional capability, O'Bryan v. Consol Energy, Inc., 477 F. App'x 306, 307 (6th Cir. 2012), and they can comb through your Facebook and Instagram postings (“social media surveillance”) to determine what activities you have been doing in an effort to deny or terminate your long-term disability (LTD) claim.

Courts typically allow insurance companies wide latitude in using video and social media surveillance when evaluating claims. In Davis v. Aetna Life Ins. Co., 699 F. App'x 287, 290, 296 (5th Cir. 2017), the court held that even snooping on claimant's husband was not improper, where the insurer monitored the husband's Facebook postings about his wife's activities, in order to deny the wife's disability claim.

Growing Use of Social Platforms

According to the Pew Research Center, about 70% of Americans report they use social media platforms (not including YouTube), which represents a fourteen-fold increase since 2005, when Pew Research Center first started monitoring social media use. [Ref: https://www.pewresearch.org/fact-tank/2018/03/27/americans-complicated-feelings-about-social-media-in-an-era-of-privacy-concerns/]

Roughly three-quarters of Facebook users visit the site daily, including about half who do so several times a day. Id.

Social Media Laws Are Limited

In the United States, there are no national comprehensive social media privacy laws that are like the European Union General Data Protection Regulation (GDPR). The Communications Decency Act (CDA) and The Children's Online Privacy Protection Act (COPPA) are laws that protect children. There are state laws against hacking and laws that deal with data security and notification requirements for data breaches.

The European Union has "right to be forgotten" laws that allow individuals and corporations to request that their information be deleted from certain internet sites. However, there are no right to be forgotten laws in the United States.

The American Bar Association points out that “in Europe, Canada, and other countries across the world, protection of each citizen's private information is considered to be a human right, secured by statute and enforced by government and private causes of action. In the United States, by contrast, only certain classes of information are protected under federal law – financial transactions, health care transactions, and information regarding children under the age of 13 – while nearly all other data is considered to be fair game for any business or government agency that chooses to collect, store, and use the information.”

 [Ref: https://www.americanbar.org/groups/business_law/publications/blt/2014/01/03a_claypoole/]

Privacy Policies

Social media platforms allow access to their sites by third parties without worrying about their own liability. Facebook's Cambridge Analytica scandal is an example of this problem and highlights the need for additional laws to protect the privacy of social media users.

There are social media workplace privacy laws to help protect employees. There are state laws that criminalize "revenge porn" and other unauthorized content.

However, typically your privacy rights concerning the personal data that Internet-based companies collect on you are determined not by federal or state laws, but by the privacy policies that are posted by Facebook, Google, and other internet providers. You must read and agree to those policies in order to use the platform.

In California, as of January 1, 2020, the California Consumer Privacy Act gives Californians the right to find out what personal information a business collects bout them; the right to delete personal information; and the right to opt out of the sale of their personal information. Cal. Civ. Code § 1798.100, et. seq.

It's a step in the right direction. As the American Bar Association points out, states are “developing laws and regulations to protect certain aspects of people's information on social media. As social media sites evolve to make the dissemination of information easier, our society is beginning to recognize the problems inherent in such dissemination, and the use and protections to which such information is entitled. Both the FTC and state legislatures are taking steps to protect the American public from inappropriate intrusions on their privacy through social media – even if they are only protecting us from our own poor judgment.” Id. However, more needs to be done on both the state and federal level to protect our privacy.

Pay attention to the privacy settings for each social network that you use and choose the strictest possible privacy settings. Don't accept privacy policies without at least reading them. (But who does?)

Disability Benefits

The safest course of action when it comes to protecting your long-term disability (LTD) benefits from social media surveillance by insurers is to shut down your Facebook, Instagram, and other social media platforms.

If you are unwilling to do that, at least select the most restrictive privacy settings that you can. The personal information that you or your family post on these platforms may be monitored by insurance companies and may be used against you.

At Law Med, we want to help you protect your LTD benefits under Social Security (SSDI) and private group plans (ERISA). Be aware!

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