social media – Page 7 – Attorney Evan Brown

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.”

September 20, 2010 Employment, Evidence

Plaintiff failed to show that Facebook pics supported hostile workplace claim

Jabbar v. Travel Services, Inc., 2010 WL 3563112, (D.Puerto Rico September 10, 2010)

Plaintiff sued her former employer for racial discrimination. The court granted summary judgment in favor of the employer, finding there was not enough evidence to go to trial on plaintiff’s claim. Plaintiff asked the court to reconsider the judgment against her. The court held its ground.

One of the assertions that plaintiff made was that someone from work had posted a discriminatory comment on a Facebook photo taken at a company outing.

The court found there was no evidence apart from plaintiff’s own deposition testimony that the company’s official policy was to upload photos to Facebook. And there was no evidence as to who owned the Facebook account in question.

So the court found no basis to overturn its earlier determination that plaintiff failed to establish a prima facie case of employment discrimination.

January 2, 2010 Litigation

Some thoughts on jurors doing internet research – keep the process clamped down

People v. Carmichael, — N.Y.S.2d —, 2009 WL 5126920, (N.Y.A.D. 4 Dept., Dec 30, 2009)

A recent decision from a New York appellate court gives us occasion to think about the problem of jurors doing web research to find information relating to the case.

The Carmichael Case

A jury convicted one Carmichael of murder. One of the jurors did some internet research during the trial on the question of whether the gunshot wound on the victim was a close contact wound or was inflicted from a distance. When Carmichael discovered the juror’s research, he moved to set aside the jury’s verdict. He argued that the juror’s misconduct caused prejudice to a substantial right.

The trial court denied the motion and Carmichael sought review. On appeal, the court held that the trial court properly denied the motion to set aside the verdict.

It found that Carmichael suffered no prejudice to a substantial right because the juror’s testimony at a hearing on the matter showed that the information found during the internet research was not helpful, that he remained confused even after the research, and that he based his verdict only on the evidence presented at trial.

The Modern Person’s Connection to the Web

The sense of connection that the modern person feels within the web causes an intriguing disruption to the traditional method of the jury trial system. It calls us to evaluate whether it’s fair to characterize conduct like that of the Carmichael juror as “misconduct.” As this Time article notes (and as we all know from our own experiences), it is natural for jurors to desire background, contextual information about the matter being considered.

The tension applies to the problem of jurors acquiring information concerning the case as well as the problem of jurors distributing information they have, or making inappropriate connections with others in the process. The past few months have shown us, for example, stories of improper attempts by jurors to friend witnesses, prohibitions on judges connecting with lawyers, questions of witness intimidation through Facebook, and orders prohibiting courtroom tweeting.

In most instances this tendency to want and share information is a positive attribute. Skepticism, rationality and transparency are noble qualities. But information crossing the abstract borders of the trial court can jeopardize the fairness that the process has historically ensured. It’s no small problem. Even Britain’s Lord Chief Justice recognizes that the ability to so easily get information external to the case “changes the whole orality tradition [i.e., oral testimony] with which we are familiar.”

It’s not a new problem. I was writing about it almost five years ago. Here’s a post I wrote and a podcast episode I did about it back in 2005.

Keep ’em Clamped Down

At the most general level there are two options for handling the present tension. Courts could assimilate the modern tendency and simply leave the process unchecked — allowing information to flow in and out as if on the breeze. The other option would be to clamp down, as the courts in Michigan have done, enacting rules that prohibit jurors doing research and disseminating information during the proceedings.

Our tradition should tell us to go with the latter, that is, clamping down. Looking at it a certain way, there is nothing different in kind occasioned by modern communication methods that mandates information to be free flowing. Though in the past it would have been less feasible, it would not have been impossible for jurors to share information during the process or do external research during off hours. To foster the fairness of the proceedings, courts have historically fortified the abstract walls of the courtroom, permitting the jurors only to consider the evidence made a part of the record. Think about it — that’s the entire basis for having rules of evidence in the first place.

So even though it’s easier to get information these days, and even though jurors want to do that (and in most situations outside of jury duty should be encouraged to do so), there is no good reason not to enforce strict regulations prohibiting outside research. Whether a juror should be permitted to share information during the process is more subtle — there are more concerns there about openness in the process implicated. Absent national security or other similar reasons, we generally don’t want proceedings to be incommunicado.

The solution should not be an assimilation and accompanying dissolving of the borders of the walls around the process, but should come from education of the jury pool. The quasi-closed system of the proceedings, moderated by rules of evidence helps ensure fairness and accuracy. To the extent jurors are helped to understand such a notion of “information regularity,” the more likely they are to see that it makes good sense.

Jurors only photo courtesy Flickr user dmuth under this Creative Commons license.

August 13, 2009 Computer Crime, First Amendment

Is banning sex offenders from social networking sites constitutional?

Mashable and others are reporting on a law that the governor of Illinois signed earlier this week, banning use of social networking sites by convicted sex offenders. The big criticism of that law seems to be that it may be unconstitutional. That question is worth thinking about.

The most likely constitutional challenge will be that the law is too broad. For a law to prohibit certain speech and not run afoul of the First Amendment, it must be narrowly tailored to serve a compelling government interest. Clearly there is a compelling government interest in protecting children and other victims of sex crimes from perpetrators. So the real analysis comes from examining whether this restriction on the use of social networking sites is narrowly tailored to serve that purpose.

What the law says

Let’s back up and take a look at what the new law actually says. In short, it requires any sex offender that is on parole, supervised release, probation, conditional release or court supervision to “refrain from accessing or using a social networking website.” Note that the restriction is not a lifetime ban, but just a restriction to be in effect during the sentence.

There are a number of terms to unpack.

There is a prohibition on “accessing” and “using.” This is kind of redundant, because the statute defines “access” as “to use, instruct, communicate with, store data in, retrieve or intercept data from, or otherwise utilize any services of a computer.” (The redundant part comes from the fact that to “use” is part of the definition of “access”.)

The most important definition for our discussion is that of a “social networking website”:

“Social networking website” means an Internet website containing profile web pages of the members of the website that include the names or nicknames of such members, photographs placed on the profile web pages by such members, or any other personal or personally identifying information about such members and links to other profile web pages on social networking websites of friends or associates of such members that can be accessed by other members or visitors to the website. A social networking website provides members of or visitors to such website the ability to leave messages or comments on the profile web page that are visible to all or some visitors to the profile web page and may also include a form of electronic mail for members of the social networking website.

This is a tortured definition plagued by a couple of runon sentences, but in essence, a social networking website, as defined under Illinois law, is any site that has:

profile pages that contain
identifying information such as names, usernames or photographs, and which are
linked to other profile pages of “friends or associates” that can be
accessed by other members or visitors to the website, and
provides the ability to leave messages or comments on the profile visible to others

In a rather strange style for legislative writing, the definition says that a social networking site “may also include” direct messaging. That’s weird to say in a statute — does it have to include direct messaging to be considered a social networking site? One could argue either way. So that part of the definition does nothing to assist.

How one can run afoul of the law

By merely accessing a social networking site, a sex offender violates this new law. He or she doesn’t have to actually use any of the social networking functionality, all that is necessary is to merely retrieve data from the computer on which the site is stored. Clearly it would be verboten to use MySpace and Facebook. But also off limits would be LinkedIn and Focus. Flickr? YouTube? No way, even if the offender is just going there to passively view content for completely benign purposes.

The constitutional problem

Remember, the law has to be narrowly tailored to meet the compelling state interest. That means that if there is some less restrictive alternative than the law as enacted to fix the problem, the law is too broad and therefore unconstitutional. It would certainly seem that there is something less restrictive than a prohibition on merely visiting a website with social media functionality. A good start would be more aggressively targeting the actual online conduct that might put people at risk — actual online interaction through social media.

But it is far from clear. The Seventh Circuit (which is the federal appellate court that would hear a constitutional challenge to an Illinois law) has held that a convicted sex offender can lawfully be prohibited from visiting a city park. See Doe v. City of Lafayette, 377 F.3d 757 (7th. Cir. 2004). In a city park there is plenty of conduct one can undertake which is not unlawful or does not threaten others. And the court held that restriction was not unconstitutional. There is plenty of conduct one can engage in on a “social networking site” as defined by the statute that is not harmful as well.

Is the comparison between a city park and a social networking site justified?

Keyboard image courtesy Flickr user striatic under this Creative Commons License.

October 17, 2008 First Amendment

No injunction against transferring student over violent YouTube video

O.Z. v. Board of Trustees of Long Beach Unified School Dist., 2008 WL 4396895 (C.D. Cal. Sept. 9, 2008)

While school was out of session for spring break, seventh grader O.Z. collaborated with a classmate to make a slide show video dramatizing the murder of the students’ English teacher. Though O.Z. says she did not intend to share the slide show to anyone outside her home, she posted the video to YouTube. A couple months later, while doing a vanity search on YouTube, the English teacher encountered the video. Naturally distressed by the work, the teacher notified school authorities. Administrators suspended O.Z. and transferred her to a different school for her eighth grade year.

O.Z. filed suit and sought a preliminary injunction requiring the school district to re-enroll her at her former school. She argued that the slide show was protected speech under the First Amendment, and that the school’s discipline for it was unconstitutional. The court denied the motion for preliminary injunction.

In evaluating the likelihood of O.Z.’s success on her First Amendment claim, the court applied the standard set forth in Tinker v. Des Moines Ind. Comm. School Dist., 393 U.S. 503 (1969). The Tinker test provides that discipline over student speech is appropriate if school officials reasonably conclude that the speech will “materially and substantially disrupt the work and discipline of the school.”

O.Z. argued that the slide show was merely a joke and not a true threat. But the court found that the school could reasonably forecast substantial disruption of school activities given the violent language and unusual photos comprising the video slide show. Further, the decision to transfer O.Z. served not only to discipline her, but to protect the safety of the teacher.

The fact that O.Z. created the slide show outside of school was of little import in the circumstances. Comparing the present situation with Wisniewski v. Board of Educ. of Weedsport Cent. School Dist., 494 F.3d 34 (2nd Cir. 2007) and other cases involving off-campus conduct, the court found that the slide show created a foreseeable risk of disruption within the school. Such a finding was no doubt influenced by the ability of social media platforms like YouTube to facilitate wide distribution of content.