myspace – Attorney Evan Brown

June 4, 2011 Privacy

Court dismisses class action against MySpace for violation of the Stored Communications Act

Hubbard v. MySpace, 2011 WL 2149456 (S.D.N.Y. June 1, 2011)

Plaintiff, who sued on behalf himself and others similarly situated, claimed that MySpace improperly turned over account information and private messages to law enforcement, even though there was a search warrant. Plaintiff claimed this violated the Stored Communications Act, 18 USC 2701 et seq.

MySpace moved to dismiss. The court granted the motion.

The version of the Stored Communications Act in effect at the time of the alleged wrongful disclosure in this case provided that a search warrant seeking the information must issue from a federal court “with jurisdiction over the offense under investigation,” or be “an equivalent State warrant.”

Plaintiff argued that the warrant sent to MySpace was not sufficient under the SCA (and should have been ignored) because (1) the state magistrate did not have jurisdiction to hear the felony that the cops were investigating plaintiff for, and (2) the magistrate did not have the power to issue search warrants across state lines.

The court rejected both of these arguments. In determining the warrant to be “an equivalent State warrant,” it looked to the way federal magistrates issue warrants in SCA cases. It held that the phrase “jurisdiction over the offense under investigation” refers to the power to issue warrants, not to the power to ultimately try the case. And the court looked to the legislative history around the Patriot Act amendments to conclude that SCA investigations give magistrate judges special powers to direct search warrants across state lines, because having to require cooperation with the courts in which an ISP actually exists might allow enough time for a terrorist to get away or strike again.

This case is worth noting for the wide scope the court establishes for valid search warrants under the SCA. It is also worth noting that the SCA has since been amended to make the scope more clearly this broad.

April 8, 2011 Evidence, Litigation

MySpace evidence was inadmissible hearsay

Musgrove v. Helms, 2011 WL 1225672 (Ohio App. 2 Dist. April 1, 2011)

An Ohio domestic relations court ordered an ex-wife to pay her ex-husband child support. Based on evidence that the ex-wife’s income had increased, the court increased the amount of support she had to pay. One of the pieces of evidence the court relied on was information from the ex-wife’s MySpace page where she had stated her income was “less than $30,000.” (This comported with other evidence suggesting her income was around $29,000).

The ex-wife sought review of the order increasing child support with the appellate court. On appeal, the court found the MySpace page to be inadmissible hearsay, and vacated that portion of the order.

The finding turned on a nuance of the rules of evidence pertaining to hearsay. Generally, hearsay is inadmissible as evidence, but there are exceptions. One of the exceptions is statements made by the declarant that are against her interest. The court found that although the MySpace information was used in a way adverse to the ex-wife’s interest (i.e., to increase her support obligation), as a declaration it was not adverse to her interest because it was not an assertion of fact which was by its nature contrary to her interest.

So this case is a reminder that notwithstanding any increased interest in the discoverability of social media evidence, the rules in place may serve to render the information discovered ultimately useless later in the litigation.

September 25, 2010 Privacy

Court: privacy on social networking sites is wishful thinking

Defendant is permitted access to plaintiff’s social networking accounts as part of discovery in personal injury case.

Romano v. Steelcase Inc., — N.Y.S.2d —, 2010 WL 3703242 (N.Y.Sup. September 21, 2010)

Plaintiff sued defendant for personal injury that allegedly caused her to lose her enjoyment of life. During discovery, plaintiff refused to voluntarily turn over the contents of her Myspace and Facebook accounts. So defendant filed a motion to compel plaintiff to consent to having Facebook and MySpace turn over all current and deleted content from the accounts. (That consent was necessary because without it, the sites would violate the Stored Communications Act.) The court granted the motion to compel.

The court found that the information contained in the profiles was “material and necessary” to the case. In drawing its conclusion, the court dispensed with any notion that a user’s privacy settings should affect the analysis. Denying defendant access to the information, the court found, would not only go against New York’s policy favoring liberal discovery, but “would condone Plaintiff’s attempt to hide relevant information behind self-regulated privacy settings.” Plaintiff had put her physical condition at issue, so it was fair for defendant to get evidence that may contradict the assertions of injury.

The court rejected plaintiff’s argument that disclosure of the information would violate her right to privacy under the Fourth Amendment. Fatal to any assertion of privacy was the fact that plaintiff had voluntarily made her information available on the sites. The court looked to earlier New York cases dealing with email to find that plaintiff had no expectation of privacy in the social networking data.

And the court made a sweeping declaration about the state of online privacy that is worth noting. Quoting from a law review article, the court observed that in the social media environment, “privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking.”

May 28, 2010 Computer Crime

That bogus social networking profile can send you to jail

Clear v. Superior Court, 2010 WL 2029016 (Cal.App. 4 Dist. May 24, 2010)

The California Court of Appeal has held that a man who set up a bogus MySpace profile of his former church pastor can stand trial for criminal “personation.”

The defendant’s alleged conduct that might really put him on the hook is what he did after setting up the profile: he posted content that suggested the pastor used drugs and was gay. Because this could have resulted in the pastor losing his job, the court found the statute prohibiting personation of another might have been violated (that question will be resolved at trial unless there’s a plea deal).

The criminal personation statute (Penal Code Sec. 529) has an intriguing framework for liability. Apparently it’s not enough just to say you’re someone else. To be liable you’ve got to actually do something while assuming that persona that would subject your target to some kind of legal harm.

For example, just saying to the cops that you’re someone else, that you have that persons birthday and even responding affirmatively to whether you have their middle name apparently isn’t enough to violate the statute. People v. Cole, 23 Cal.App.4th 1672 (1994).

But using your sister’s name when you get a traffic ticket and also forging her signature on the citation isn’t allowed. People v. Chardon, 77 Cal.App.4th 205 (1999).

All the reason not to set up that Facebook profile of your boss and populate it with tales of drugs and other shenanigans.

Image by Balakov under this Creative Commons license.

October 15, 2009 Evidence

MySpace posting was not improper character evidence at murder trial

Clark v. State, No. 43S00-0810-CR-575 (Ind. October 15, 2009). [Download the opinion]

Defendant Clark killed his girlfriend’s two-year-old daughter. At his murder trial, the prosecution introduced the following post Clark had made to his MySpace page:

Society labels me as an outlaw and criminal and sees more and more everyday how many of the people, while growing up, and those who judge me, are dishonest and dishonorable. Note, in one aspect I’m glad to say I have helped you people in my past who have done something and achieved on the other hand, I’m sad to see so many people who have nowhere. to those people I say, if I can do it and get away. Bullshit. And with all my obstacles, why the fuck can’t you.

Clark was convicted of murder and sentenced to life in prison. He sought review with the Indiana Supreme Court. On appeal, the court affirmed the conviction.

One of the arguments Clark raised on appeal was that the trial court committed error when it allowed the jury to consider the MySpace posting. He claimed that it was improper character evidence under Indiana Rule of Evidence 404(b) which provides in relevant part:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The Supreme Court held that Rule 404(b) did not apply because “[i]t was Clark’s words and not his deeds that were at issue.” The posting was “solely evidence of [Clark’s] own statements, not of prior criminal acts.”

Moreover, Clark had made an issue of his character when he testified in his own defense. One theme of his testimony was that he had acted recklessly, and that had he intended to kill the victim he would have done more to conceal the crime. The court held that the bravado exhibited in the MySpace posting (in conjunction with a statement Clark had made to a detective upon his arrest, namely, “I will fucking kick your ass. I will send the Hell’s Angels to kill you. Fuck it. It’s only a C felony. I can beat this.”) was probative in that it countered his argument of “mere” recklessness.

August 12, 2009 Computer Crime, Evidence

Conviction for sending intimidating MySpace message overturned

Marshall v. State, 2009 WL 2243467 (Ind. App. July 28, 2009)

Gotta love the facts of this case from my home state of Indiana.

Marshall and Goodman traded cars with one another, but that deal went sour. Marshall then got into an altercation with Goodman’s mother (named Lee) and Marshall was arrested. She was also ordered to have no contact with either Goodman or Lee. Three days after her arrest, Marshall sent the following (redacted) private message through MySpace to Goodman:

Dont think that you are gonna get away from this s***. you can’t hide forever and one of these days when you are out and about … you know thy aint going to pin nothing on me. Cant prove s***. aint gonna and I am just waiting for that day. You want a war? ? ? Your gonna get it now f*****. I don’t know YET who told you the s*** in my blogs or was feedin you info on me but you can rest assured that I am gonna f*** them uptoo when I found out. And I WILL find out. The s*** aint done and you better know that. Its only a matter of time.

The b**** you know I can be.

(Ed. note: stay classy, Ms. Marshall!)

Based on this message, Marshall was convicted of felony intimidation against Lee. The prosecution had argued that Marshall committed this crime by communicating a threat to knowingly injure Lee, with the intent that Lee be placed in fear of retaliation for calling the police.

Marshall sought review of her conviction with the Indiana Court of Appeals. On appeal, the court reversed the conviction.

The court held that the prosecution failed to prove its allegations of intimidation against Lee, because the message was sent to Goodman’s ( and not Lee’s) MySpace account. Even though an intimidating communication may be indirect, the state had to prove that Marshall must have known or had reason to know that her communication would reach Lee. In this case, there was no such proof.

The MySpace message was not addressed to Lee, nor was she mentioned by name. Accordingly, there was no evidence that Marshall knew or had reason to know that Goodman would show the message to his mother.

Photo courtesy Flickr user subewl under this Creative Commons license.

August 3, 2009 Computer Crime

Drinkin’ photos on MySpace send man to prison

Lesson of the day: don’t post pictures of yourself on MySpace holding a beer if the conditions of your probation don’t let you drink alcohol or use the internet.

Defendant Pressley pled guilty to some ugly crimes and was sentenced to a lifetime of probation. As part of the deal, he promised not “to consume or drink any substance containing alcohol,” and to “not possess, use or have personal access to any computer or similar equipment that has internet capability without prior written permission of [his] Probation Officer.”

In July 2007, Pressley’s probation officer paid him a visit. There in Pressley’s house was a vodka bottle two-thirds empty (or as I like to say, one-third full) and a laptop having a desktop icon with Pressley’s name. (It’s not clear what that icon was, but it sounds like a profile icon for Windows XP.)

The state filed a petition to revoke Pressley’s probation. The trial court granted the petition and sentenced him to ten years in prison. Pressley appealed. On review, the court affirmed the prison sentence.

The most intriguing argument that Pressley made to the appellate court was that the lower court erred in admitting photos of Pressley holding a beer. According to Pressley’s wife’s testimony, the photos came from her MySpace page. One of the other pictures had a caption, as if written by the defendant, that said, “Me and my wife.” The court found that these pictures were relevant to whether Pressley violated the terms of his probation.

Good thing you’d never see anything like this over at Sorry I Missed Your Party.

July 2, 2009 Computer Crime

What the Lori Drew acquittal should mean for service providers

You know the story of Lori Drew — the mom from Missouri who was accused of setting up a bogus MySpace profile impersonating an adolescent boy. Lori acted as this fake “Josh” to stir up romantic feelings in young Megan Meier who, after being dumped by “Josh,” took her own life.

A terrible thing of course. And someone needed blaming. So federal prosecutors chose to go after Lori Drew. The jury convicted her of violating the Computer Fraud and Abuse Act (the federal anti-hacking statute), but today the judge acquitted her. Seems like a good decision, as the theory on which the prosecution based its case — that Lori violated the site’s terms of service by saying she was someone other than she is and thereby exceeded her authority — was shaky at best. The big problem with that theory was that such a reading would make most of us criminals. I’m sure you don’t mean to tell me you’ve never signed up for an online service using something other than your real name or accurate contact information.

Most smart people can agree that the Computer Fraud and Abuse Act was not the right way to punish this “crime.” Various states have enacted legislation to handle cyberbullying and are already prosecuting people in state court. But the problem is not going to go away. People will still do foolish things on the internet.

And to the extent that foolishness is criminal, the individual should pay a criminal price. The individual.

Using the Computer Fraud and Abuse Act to go after this conduct put the contractual relationship between the end user and the provider (i.e., Lori Drew and MySpace) under the microscope where it did not belong. The court and jury had to scrutinize that contractual relationship and the resulting authority (or lack thereof). They had to do that because there was no other way the government was going to win a CFAA prosecution otherwise.

Focusing on that relationship in this context did not make sense. MySpace didn’t have anything to do with this other than being a passive intermediary. Why should the inquiry at trial have gone to those kinds of questions? Why should the intermediary have been bothered? It shouldn’t have.

The bad act was (I guess we have to again say “allegedly was” now that she’s been acquitted) between Lori Drew and Megan Meier. That’s the space where the factual focus and legal analysis belonged. Not in the legal relationship between Lori Drew and MySpace.

Now that we have a sensible legal outcome in this case, hopefully prosecutors will take some more principled approaches and leave the intermediaries out of it.