Department employees are required at all times to adhere to certain government-wide standards of conduct that apply to online communications, regardless of whether the employees are at work, off duty, or using government equipment. All Department employees should be aware of the following requirements governing the use of social media, and Department attorneys should consider obligations imposed by applicable rules of professional conduct:
- Department employees must properly safeguard confidential, privileged, classified, privacy-protected, and sensitive Department information.
- Department employees are generally restricted from publicly releasing any comments or information that may reasonably be expected to influence the outcome of a pending or future trial, including observations about a defendant’s character or their opinion as to a defendant’s guilt.
- Department employees should not make false statements or statements in reckless disregard for the truth about a judge’s qualifications or integrity.
- Department employees should not make comments that can be perceived as showing prejudice based on race, gender, sexual orientation, or any other protected basis.
- Department employees may not engage in anonymous online activity (or use a pseudonym) to engage in conduct or communications that they otherwise would not be permitted to engage in if their identities were known.
Department attorneys should also be aware that the rules of professional conduct in their respective jurisdictions may further limit their permissible activities on social media. For example, Department attorneys should not make statements that would result in the Department attorney being materially limited or impaired in representing the United States, such as by posting personal opinions contrary to those that the attorney is advocating on behalf of the United States, comments that can be perceived as showing prejudice based on race, gender, sexual orientation or any other protected basis, or comments that may cause the attorney to be called as a witness. See Model Rule 1.7(a)(2); Model Rule 8.4(d) & cmt. ; Model Rule 3.7(a). In addition, Department attorneys may need to consider whether statements posted on social media are required to be disclosed subject to the Government’s discovery obligations.
[updated September 2018]