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Difficulty with Reconciling the Fourth Amendment and Social Media.

In a November 29, 2012 New York Times article entitled Panel Approves a Bill to Safeguard E-Mail, Charlie Savage details a bill passed by the Senate Judiciary Committee which would require a warrant in most cases where the government seeks e-mail from internet service providers. Currently the government is able to obtain e-mail either by warrant or subpoena. The government’s choice is dictated by the Stored Communications Act and series of court decisions which have interpreted it. Savage indicates that the bill is not expected to make it through Congress in 2012, instead the bill would be subject to negotiations during 2013. The sponsor of the bill, Senator Patrick Leahy argues that e-mails stored by third parties should be afforded the same protection as papers stored inside of an individual’s home. According to Senator Leahy, an architect of the Stored Communications Act, as technology changes the law which protect privacy must also change.

In a December 26, 2012 Huffington Post story entitled Netflix Social Sharing Bill Passes Without Email Privacy Protection, the writer, referring to the bill sponsored by Senator Leahy, points out how Congress passed the “Netflix amendment” to the Video Protection Act, but dropped the e-mail privacy provision. In the article the writer argues that the failure to include the privacy provision leaves the Stored Communications Act intact, making it relatively easy for law enforcement officers to gain access to open stored e-mail. The author of the article seems to suggest that Congress’s failure to pass the bill, put the interest of Facebook users who want to share a “Michael Bay movie marathon” with their friends over the privacy rights of everyone.

There is no argument that our privacy rights deserve protection. Under the Fourth Amendment a person has a right to be secure in their houses, papers and effects, against unreasonable search and seizure. In Justice Harlan’s concurring opinion in Katz v. United States, a test for the reasonable expectation of privacy was developed. The “Katz Expectation of Privacy Test” considers whether (1) the individual subjectively by his conduct has “exhibited an actual expectation of privacy” and (2) whether the individuals subjective of privacy is “reasonable” from an objective view.

Most people would agree that ensuring Fourth Amendment protections is more important than a bill which enables Netflix users to share a “Michael Bay movie marathon” with everyone on Facebook. However, applying the “Katz Expectation of Privacy Test” to contemporary social media may not be as simple as it appears. Since the enactment of the Stored Communications Act, the courts have been able to apply the original language of the Act with constantly evolving technology. In some of the cases the court has held that the individual exhibited an actual expectation of privacy but that the expectation was not reasonable from an objective view, while other courts have held the opposite view. Irrespective of how the courts have decided, many of them struggled, albeit successfully, with reconciling the Fourth Amendment with social media.

As a result of these court decisions, law enforcement and prosecutors have developed guidelines which ensure their actions are in accordance with the Stored Communications Act and judicial precedent. Despite Congresses inability to pass the 2012 e-mail privacy provision, it is hard to imagine that members of Congress are more concerned about a Michael Bay movie marathon than they are about our Fourth Amendment rights. Even if the unimaginable were true and Congress was indifferent to our rights, the courts will continue to determine if there is a reasonable expectation of privacy. Nevertheless, one can assume that Congress may be having the same difficulty reconciling the right of privacy to the ever changing world of social media.

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You’re sitting in Starbucks enjoying a cup of Joe thinking how nice it would be if a friend could stop by and join you. With the imminent launch of Facebook’s latest gimmick, Nearby Friends, finding a friend in close proximity to you for coffee becomes instantaneous and effortless; provided you both have opted-in to and turned on the new service.

Nearby Friends is Facebook’s latest attempt to connect people in person rather than online. As quoted in Josh Constine’s Huffington Post article,

Facebook Launches “Nearby Friends” With Opt-In Real-Time Location Sharing To Help You Meet Up, Andrea Vaccari, developer of Nearby Friends, explains the goal of the newest technology is to “make it really easy to discover when someone is around you, and meet up and spend time together.” Nearby Friends will become available within the next few weeks for mobile phones using iOS or Android operating systems. If a Facebook user, only those 18 years or older, chooses to opt-in to Nearby Friends, an icon will appear next to that user’s friends who have also selected to participate in the service. Participants in Nearby Friends will receive notifications from Facebook when friends are within their proximity. Facebook allows users to be discriminatory by giving users the option to share their proximity with all friends or with only specific friends; additionally, an individual’s exact location will not be disclosed, only his proximity to another user. If a user wants to know the specific location of a friend, he can send that friend a forty character message through the Nearby Friends service and ask for his exact address. When Nearby Friends is not specifically turned on, a user’s location is not available to others. However, if a user turns Nearby Friends on and forgets to turn it off, his whereabouts will always be available for all of his participating friends to see.

I guess I understand the benefits to Nearby Friends. It is a great way to find company at a moment’s notice. It easily facilitates an impromptu gathering of friends. However, part of me can’t help but think that Nearby Friends makes society a little lazier. It takes the effort out of picking up the phone and telling a friend you want to see them, then working together to make a meeting happen. There’s something nice about letting someone know that you want to carve time out of your busy life specifically for them, rather than relying upon pure happenstance. But what happens when a user forgets to turn off Nearby Friends when he doesn’t want his relative location disclosed? I can anticipate the trouble that will ensue if one is found to be somewhere he shouldn’t. Whether the user’s behavior at that time is inappropriate or not is irrelevant; it is a realistic issue that can arise from participating in the service. Although leaving Nearby Friends activated at inopportune times is the result of the user’s own negligence, it is not unreasonable to believe that people will forget to turn the service off when they want to go about their business without being bothered by others; if one forgets to turn off Nearby Friends, that luxury becomes obsolete.

I think it is obvious that I most likely will not participate in the new service; however, I will probably be in the minority. I do see the benefit of knowing when a friend is close-by when one is in want of some companionship. However, making a phone call or sending a text message can serve that function, as well. I don’t need my cell phone to disclose my location for me. But perhaps my thinking is just old fashioned…

Revenge Porn is a sexually explicit picture or a video published on the Internet without the subject’s permission, most commonly by a disgruntled ex-partner or someone angry with the pictured person. A link to the true identity of the pictured person is usually attached to the posting so as to assure that the person’s identity is connected to the nudies. It is undoubtedly malicious; aimed at embarrassing and humiliating the pictured person. Often, the image or video is created with the subject’s permission, or is even taken by the subjects themselves. After all, most of us are guilty of “selfies” that should never see the light of day, much less be shared on social media (as evidenced by the Weinergate). However, an inadvertent posting of “sexting” is a far cry from the devious maleficence of revenge porn. So vile and abusive is the nature of this public humiliation, that some state legislatures (and some countries) have passed laws that criminalize revenge porn. Should revenge porn be criminalized at state or federal level or is this uncivil behavior better addressed in civil courts?

Less than a month ago, Wisconsin was the third state this year (after Utah and Idaho) that passed a law criminalizing revenge porn. The Wisconsin law makes it a Class A Misdemeanor to distribute without permission an image of a “nude or partially nude person or of a person engaging in sexually explicit conduct.” California and other states have passed similar laws and about 20 states have proposed this legislature. California however makes an exception for “selfies.”

There have also been civil suits brought against those that posted unauthorized nude images. In Texas, a woman prevailed in a civil suit and was awarded $500,000 in damages – the largest award to date for this type. What about liability for harassment by sites that provide a platform for these types of postings (such as “Is Anyone Up?” or “You Got Posted”)?

“Is Anyone Up?” site founder, Hunter Moore, said “[p]eople threaten me with lawsuits every day, which is funny, because it fuels the site.” Moore shut the site down in April 2012 because he was tired of combing through the daily submissions to weed out daily contributions of child porn. He later opened a new platform. The site’s motto was “pure evil.” Hunter Moore and his subsequent site did eventually land in trouble and arrested by the FBI when a mom of one of his victims spent 2 years tracking down all the victims and finding evidence that he had obtained some of the pictures by hacking people’s computers and other untoward ways that swept him under the reach of existing laws against identity theft and unauthorized computer access.

Section 230 of Title 47 of the United States Code (47 U.S.C. § 230), which was passed as part of Communication Decency Act of 1996, provides protection to internet providers and intermediaries (including bloggers that allow contributions) from law suits under any State or local law that is inconsistent with that section. So, unless the “pure evil” was contributed by Moore himself or picked out, commissioned, paid for or obtained by hacking (or unless it violated any other federal law), any state laws against providing a platform for such content would be preempted by this federal protection. Thankfully, “Mr. Pure Evil” has lived up to his name with such fervor that he violated some laws and thus exposed himself to liability. However, had he been more careful, his site would still be up and running.

However, a recent proposal for a federal law criminalizing revenge porn, if passed, would mean that websites hosting this type of content would be unable to raise the Section 230 defense. This would go a long way to preventing a wide distribution of this content, however, there are obvious First Amendment issues that may stand in the way of this federal legislature. Some countries already criminalize revenge porn; for instance, Israel classified revenge porn as “sexual harassment” which can result in 5 years in jail. The Australian State of Victoria also recently passed a law making revenge porn illegal. It will be interesting to see whether such a federal law will pass or survive a constitutional challenge in the US.

 As we all know, through social media, information disseminates with lightning speed.  Instantly, millions are up to date and provided conclusions to a variety of stories and issues. Users simply acquire, retain, and click (i.e., re-tweet, like or dislike), easy-peasy- free of thought.  Is this troubling?  Robert Frost once said “Thinking isn’t agreeing or disagreeing.  That’s voting.”

Accordingly, if a re-tweet is nothing more than a vote for the product of the analysis of others , and if clicking Facebook’s “like” button simply allows over 1 billion users to avoid intellectual expression all together, are we setting a trend abandoning 2500 years of trans-disciplinary critical thinking?  Is this dangerous to future generations?  Is this a good trend, beneficial perhaps?  Is it worrisome that social media allows so many to routinely supplant active argumentation? 

In 1987, the National Council for Excellence in Critical Thinking defined critical thinking as “the intellectually disciplined process of actively and skillfully conceptualizing, applying, analyzing, synthesizing, and/or evaluating information gathered from, or generated by, observation, experience, reflection, reasoning, or communication, as a guide to belief and action.  In its exemplary form, it is based on universal intellectual values that transcend subject matter divisions: clarity, accuracy, precision, consistency, relevance, sound evidence, good reasons, depth, breadth, and fairness.   Critical thinking can be seen as having two components: 1) a set of information and belief generating and processing skills, and 2) the habit, based on intellectual commitment, of using those skills to guide behavior.”

Thinking is thus to be contrasted with:  the mere acquisition and retention of information alone, because it involves a particular way in which information is sought and treated.  If this is true, it means that the net intellectual engagement in context- for millions of social media users- amounts to nothing more than a preferential re-tweet, and/or clicking “like”/“dislike,” with a smile. 

But with only so many users, social media remains a form of entertainment.  One may argue: Relax!  It’s fun.  There are plenty of people left who still read and think!  Okay, but what happens when 5 or 6 billion people become devoted users?  How much fun would that look like?  Perhaps it is just evolution?

  Could it be that “thinking” is simply a natural process that will adapt to social media and evolve accordingly, in a beneficial way?  Perhaps an active mode of thinking- where the thinker consciously separates facts from opinions and challenges assumptions- is becoming outdated? 

After hearing all of the frighteningly careless stories of social media use by jurors, it is nice to finally read some encouraging news on the topic.   A recently published article in the Duke Law and Technology Review titled “More From the #Jury Box: The Latest on Juries and Social Media,” has revealed that juror instructions on the use of social media appear to be highly effective in deterring juror use of social media during trial.  The authors’ conclusions are based on the results of a survey of jurors in federal and state courts on their use of social media during their jury service.  The surveys began in 2011 and have continued through the publication of this article in order to get a complete picture of juror attitudes toward social media and determine whether the landscape is changing.  The results of the survey strongly supported the notion that jury instructions are the most effective tool in mitigating the risk of juror misconduct through social media.  This is certainly a step in the right direction, as the surveys have helped to identify a potential solution to this recent problem that the rise of social media use has ushered in.

The article points out that “[t]he impartial jury has survived the telephone, the radio, the automobile, and the television.  There is no reason why it cannot survive Facebook and Twitter, too.”  Though jurors have always been instructed to refrain from discussing the trial with anyone, practically speaking there was nothing to stop a juror from going home and calling everyone in their phonebook to chat with them about the trial.  Tweeting or posting on Facebook about the trial would not only likely reach a much wider audience, but this misconduct can also be more easily detected due to the lax privacy settings of many social media users.  Social media has also simply given jurors additional opportunities to disobey the law, particularly when many are accustomed to alerting all of cyberspace to their every move and thought.

The good news is that jurors appear to respond well to instructions—the survey results indicated that those who were tempted to use social media during trial but refrained from doing so, acted accordingly based on admonishments from the court to abstain from using social media.  Specifically, the authors of the article offer three suggestions regarding when and how to administer these instructions to the jury, including early and often, as well as recommending that relevant content be included in the instructions and examples of prohibited activities be provided.

What I find odd about these suggestions is that they indicate that jurors are not willfully disobeying the court’s instructions, but instead are simply forgetting—or worse, not knowing—that they are not supposed to be tweeting or posting about the trial.  I had always assumed that jurors who participated in these prohibited activities knew that their social media use was unlawful and were either maliciously attempting to sabotage the trial, or, more likely, merely hoping or assuming they wouldn’t be caught.  What the reality of the situation is, according to this survey, might be more troubling to me than what I had initially assumed, because it points to a disturbing level of ignorance about the legal system and the importance of their role as a jury member.

Therefore, it seems that until jurors intuitively assume that they should refrain from using social media during trial, specific and frequent instructions on the matter is the best solution to prevent this misconduct.

A teen was arrested for Tweeting an airline terrorist threat. A 14 year old Dutch girl named Sarah with twitter name @QueenDemetriax tweeted to American Airlines the following: “@AmericanAir hello my name’s lbrahim and I’m from Afghanistan. I’m part of Al Qaida and on June 1st I’m gonna do something really big bye.”

In response American Airlines wrote to Sarah from their official Twitter account saying “we take these threats very seriously. Your IP address and details will be forwarded to security and the FBI.” Moments after their response, Sarah replied saying “I’m just a girl” and that her initial tweet was simply a joke that her friend wrote! She had also posted a tweet apologizing to American Airlines and stating that she is scared now.

Sarah turned herself in to the Dutch police station, where the police department stated that they are taking her tweet seriously since it is an alarming threat. The girl was charged with “posting a false or alarming announcement” under Dutch law. It was unconfirmed whether the FBI was involved or not but she gained thousands of followers on Twitter as a result of this incident. Could this be a new trend in order to gain popularity or recognition? Should Sarah be punished and if so how?

Update:

Others are now tweeting similar tweets @AmericanAir and other airlines. Kale tweeted @SouthwestAir “I bake really good pies and my friends call me ‘the bomb’ am I still allowed to fly?” Donnie Cyrus tweeted @SouthwestAir “@WesleyWalrus is gonna bomb your next few flights.” ArmyJacket tweeted @AmericanAir “I have a bomb under the next plane to take off” There are many other tweets with similar language all aimed at airlines.

There are no reports yet of any of these follow up twitter threats being reported to the appropriate authorities. Are these tweeters going too far? These tweets can potentially be translated into legitimate threats or have they now crossed into the realm of freedom of speech?

Both law students and practicing attorneys will tell you the best way to get employment or clients is either networking or referrals. This week, they may have to add a third option: an app.

Jammed Up is currently a website that will be launching soon for IPhone, Android and Blackberry.  Its slogan is “When trouble finds you, you find us!” The site positions itself as a way to easily find a lawyer if you are arrested, merely scroll through the app or website and select one. There are currently 200,000 lawyer listings nationwide, and the site also includes listings for bail bondsmen and private investigators.

 

The website and future app was co-founded by a bail bondsman and a cement flooring contractor from the Bronx. Michael Falzono, one of the founders, stated they are trying to “be an urban legal website for the everyday person.”

 

Lawyers are bound by ethical rules of professional responsibility. One of the major rules concerns solicitation. The American Bar Associations’ Model Rules of Professional Conduct Rule 7.3 states, in relevant part:

 

“(a)  A lawyer shall not by in‑person, live telephone or real-time electronic contact solicit professional employment when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted:

(1)  is a lawyer; or

(2)  has a family, close personal, or prior professional relationship with the lawyer.”

 

As stated above, referrals from previous clients or friends and family have been the norm for lawyers. Jammed Up, however, seeks to change that. It seems the app and its legal listings come into direct conflict with Rule 7.3, which serves as a model rule to most of the 50 states ethical rules. I would argue being listed on the app could equate to electronic contact for solicitation e.g. Facebook messaging . Why else would you be listed on Jammed Up? However, there is an argument that since it would be prospective clients that would be reaching out to the attorneys, there is no solicitation.

Social media and mobile apps are a continuing trend that the ethical rules have not caught up with. While old laws may be adequate to prosecute new  crimes, the old ethical rules do not address emerging technology in a way that they should.

Source: New York Daily News

Given the digital goldmine of potential evidence available from social media websites, it is not surprising that they are increasingly targeted by search warrants and government subpoenas in criminal matters.

I recently had a conversation with an Assistant District Attorney that stated when they subpoena digital records from social media websites like Facebook, and Twitter, those social media companies disclose to the user that a subpoena has been ordered to release specific information from the website. As the ADA stated, “this makes it extremely difficult to investigate a person’s social media activity during an on-going investigation.” Further, when a subpoena is issued, the ADA already has creditable evidence to move forward with a subpoena to proceed with the investigation. The ADA is not issuing subpoena’s to invade the privacy of an individual’s innocent conduct.

This new policy from social media companies comes in the wake of the NSA surveillance scandal. Just last month, Eric Snowden appeared via videoconference at the South by Southwest technology conference, urging companies to increase their security and protect their users from government intrusion. Snowden wants the technology industry to get serious about protecting the privacy of its users and customers. Since the NSA scandal, social media companies have implemented new privacy policies that have made it difficult for investigators to subpoena records. This has changed the way social media companies cooperate with government officials.

Federal law provides that, in some circumstances, the government may compel social media companies to produce social media evidence without a warrant. The Stored Communications Act (“SCA”) governs the ability of governmental entities to compel service providers, such as Twitter and Facebook, to produce content (e.g., posts and Tweets) and non-content customer records (e.g., name and address) in certain circumstances. The SCA, which was passed in 1986, has not been amended to reflect society’s heavy use of new technologies and electronic services, such as social media, which have evolved since the SCA’s original enactment. As a result, courts have been left to determine how and whether the SCA applies to the varying features of different social media services.

Facebook has posted in a Help page article titled “May I obtain contents of a user’s account from Facebook using a civil subpoena? The article cites the Stored Communications Act as the reason that “Federal law prohibits Facebook from disclosing user content…in response to a civil subpoena,” stating unequivocally:

“Federal law prohibits Facebook from disclosing user content (such as messages, timeline posts, photos, etc.) in response to a civil subpoena. Specifically, the Stored Communications Act, 18 U.S.C. § 2701 et seq., prohibits Facebook from disclosing the contents of an account to any non-governmental entity pursuant to a subpoena or court order.”

In response to Facebook’s interpretation of SCA, a federal district court judge has held that certain elements (e.g., private messages) of a user’s Facebook or MySpace profile were protected from being subpoenaed under the Stored Communications Act by analogizing them to a type of electronic message (Bulletin Board System–BBS) that was mentioned in the Stored Communications Act. Crispin v. Audigier, 717 F.Supp.2d 965 (2010, C.D. CA).  The court quashed the defendant’s subpoenas to Facebook and MySpace requesting private messages from the plaintiff’s account.

As to the subpoenas seeking Facebook wall postings and MySpace comments, the Crispin court remanded the matter so a fuller evidentiary record regarding plaintiff’s privacy settings so it could be determined before deciding whether to quash the subpoena for that content. This implies that Facebook does not get to decide where the “privacy” bar should be set in determining whether social networking postings and comments are subject to a subpoena as Facebook’s Help pages would lead us to believe—only the court gets to decide that.

Perhaps this is why companies like Facebook have implemented a disclosure rule that notifies the user when a warrant or subpoena has been issued and requests the users site based content.

Are social media companies doing the right thing by notifying users when records are subpoenaed? Thoughts?

Social Rift

Another day, another questionable Facebook acquisition, and as engadget.com put it, another instance of the “Facebook” effect.  This particular acquisition is the $2 billion purchase of virtual reality headset manufacturer “Oculus Rift.”  Oculus Rift is a particularly unique purchase by Facebook because of its crowdfunding roots.  Oculus Rift got its start through the crowdfunding website “Kickstarter.”  Kickstarter allows individuals to contribute money to upstarts and projects often essentially pre-purchasing the product they are supporting.  Oculus Rift was able to successfully get funded and shipped its VR headsets to qualifying supporters.  Oculus was deemed to be a device that will change the gaming industry and supporters, many of them developers, wanted to get in on the ground floor.  Since its funding the Oculus Rift has improved and has been used for numerous projects, demos, and games by developers, artists, and gamers alike.

The future of the Oculus Rift will now however will be determined by Facebook its new owner to the dismay of many of Oculus’ former supporters.  Which poses an interesting legal question that Kickstarter and startups like Oculus have to consider.  What happens when your hundreds of investors on a crowdfunding site like Kickstarter think they are funding something like a unique grassroots revolution in gaming and it turns out to be bought by a social media juggernaut who may have intentions to take the company in a completely different direction?  Kickstarter has maintained that supporters on their website are not entitled to shares of the company they are supporting, viewing supporters as donators more than investors.  Many of the 9,522 initial Kickstarter backers of Oculus are now demanding their money back and expressing their displeasure online through social media such as on twitter and on Oculus’ Facebook page (irony noted).  Oculus’ Kickstarter page is riddled with comments condemning the acquisition and expressing their feelings of betrayal believing Oculus received a windfall on the shoulders of their supporters who made them who they are today.

Facebook may be able to now provide Oculus funding much greater than they have ever seen before, but their future in gaming is at risk by a number of factors.  The “Facebook effect” for instance, caused by the feeling of distrust of the social media giant by many, is already having an adverse effect with not just their Kickstarter supporters, but also by huge players in the gaming industry the platform needs to rely on.  The creator of “Minecraft,” an immensely popular game on a large number of platforms including game consoles, mobile phones, and PC’s tweeted, “We were in talks about maybe bringing a version of Minecraft to Oculus. I just cancelled that deal. Facebook creeps me out.”  Oculus also will soon no longer be the only game in town as far as virtual reality is concerned, with Sony announcing recently their own headset, Project Morpheus, for their PlayStation 4 game console.  Kotaku.com offered a quote by Sam Biddle from the blog Valleywag to offer a strong perspective to sum up the concerns of many in the crowdfunding community, “For me, it’s now simple: post-Oculus, if you back a large Kickstarter project, you’re a sucker.”

Read more at: Engadget & Kotaku

Minnewaska School District has agreed to pay Riley Stratton $70,000 to settle the 2012 case involving the former Minnewaska Area Middle School sixth-grader. Stratton is now 15 years old. According to the lawsuit Stratton was given detention after she posted comments about a teacher’s aide on her Facebook page. The ACLU claimed that the reason for originally viewing her page was due to claims that she was using school computers to talk to a boy about sex. However, Stratton used her own personal computer at home to make the post -not a school computer.
The nature of the comments which lead to detention about a teacher’s aide were supposedly disapproving. A disputed fact in the case was whether there was permission for the school to go through her cellphone and request passwords for her Facebook account. According to Minnewaska Superintendent Greg Schmidt “It was believed the parent had given permission to look at her cellphone,” but there was no signed waiver from the parent, and there was no policy requiring one.
The fact that the posting was made from her home was a deciding factor in settling the case, according to Schmidt. The reason for the lawsuit was because Stratton became too distraught and embarrassed to attend class or go to school. Since this settlement, the school has changed its policy. The school now requires parents to submit a signed permission waiver in order to look through a students cellphone. This case may be an example of schools overreaching their authority in punishing kids for activities outside of school, and especially for things that happen on social media.

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