Feed on

The Second Circuit Court of Appeals recently upheld the prosecution’s introduction of social media evidence to support a conviction against an alleged gang member for narcotics sales, murder and related crimes. The case, United States v. Pierce,  concerned several defendants including Melvin Colon, a member of a Bronx N.Y. street gang.  As evidence against Colon, the prosecution introduced posts Colon made to his Facebook page including a video of Colon rapping “Somebody make somebody nose bleed / I’m OG shoot the Ruger / I’m a shooter,” and a picture of Colon’s hand showing a “Y.G.K.” tattoo.  YGK stands for Young Gunnaz Killer, and Gunnaz was the rival gang against whom Colon committed his violence.

At trial Colon argued that introduction of the Facebook posts violated his First Amendment rights because his conviction “rested on a form of expression, however distasteful, which the Constitution tolerates and protects.” The Court rejected his argument since the speech was not the basis of the prosecution, in other words, Colon was not prosecuted for making the posts, but rather the posts were used as evidence of his participation in a different crime.

The Court also rejected Colon’s argument that the Facebook posts were merely “fictional artistic expression,” which should not be used against him.  The Second Circuit, referencing a recent New Jersey Supreme Court case, acknowledged that violent rap lyrics alone are insufficient to sustain a conviction.  However, where the violent rap lyrics and the like survive a Fed. R. Evid. 403 challenges and their probative value outweighs their danger of unfair prejudice, the evidence is admissible.  The court ultimately sustained Colon’s conviction.


Tricia Mezzacappa brought suit against Bernie O’Hare for defamation of character. The charge stemmed from anonymous comments posted in response to a blog post O’Hare wrote on his blog, Lehigh Valley Ramblings. For the most part, bloggers are immune from liability for third party comments. The shield comes from Section 230 of the Communications Decency Act, which relieves internet service providers (ISPs) from fault. The legislation was enacted after Stratton Oakmont (yes Wolf of Wall Street Stratton Oakmont) successfully sued Prodigy for failing to removing potentially defamatory comments from its site.  Following the case Congress rightly recognized that holding ISPs responsible for all content posted on its sites would have a chilling effect on ISPs and would threaten the existence of the existence of the internet at all. The unfortunate by product of Section 230 is that plaintiffs who cannot identify defamatory posters because of their anonymity are left remediless.

But here is the tricky part, bloggers can get around the CDA by posting their thoughts as comments rather than as blog posts.   In this particular case, Mezacappa v. O’Hare, Mezzacappa contended that O’Hare was the one who posted the anonymous comments. The Pennsylvania Court of Common Pleas did not address this particular claim and, for several reasons, dismissed the case. In so doing, the court treats a small, manageable blog, one by which the blog administrator can easily monitor content, equal to the AOLs and Googles of the world. Is it fair to relieve a blogger of liability for blog posts that he or she masks as comments, particularly when he or she has the easy ability to delete content? As a blogger I am sighing with relief at the outcome of this case. But as a citizen interested in fairness in dealings…. not so much.

Thanks goodness for “mama bears.” Recognizing the law was not on her side, 55 year old Dr. Charlotte Laws took matters into her own hands after Hunter Moore, alternatively referred to as “The Kingpin of Revenge Porn” and the “most hated man on the internet” posted topless pictures of her daughter Kayla on the website, IsAnyoneUp.com; pictures which Moore allegedly stole from her daughter’s computer and email accounts.

Initially neither the police nor the FBI was willing to assist Dr. Laws in having the pictures of her daughter’s bare breasts removed. It was not until her husband threatened a law suit against Moore that the pictures were taken down. Moore has since been charged with several felonies, including seven counts of aggravated identity theft and seven counts of unauthorized computer use, stemming from hacking Kayla’s computer. Moore has also exposed himself to civil liability. Had Moore initially obtained the photos consensually, the law would have been much more forgiving.

Only a few states currently criminalize revenge porn. Maryland amended its harassment statute in 2014 to include revenge porn, and Texas is considering a bill that makes it unlawful to “disclose or promote visual material.” In 2014 California saw its first conviction under its revenge porn statute.

According to Laws, the author of a new book titled Rebel in High Heels, revenge porn “[is]really more like non-consensual pornography or [as she prefers] to call it cyber rape because … victims act like traditional rape victims and it’s a sex crime.” I am not sure why “high heels” are necessary accessories to decry gender exploitation. But in all seriousness, it is time for all states to criminalize revenge porn, regardless of how photos were obtained.

Last month Orange County Prosecutors charged Victoria Graswald with the murder of her fiancé Vincent Viafore.  Ms. Graswald allegedly tampered with Mr. Viafore’s kayak while the two were boating in the icy (yes again icy – see post below) water of the Hudson River. As a result, prosecutors argue, Mr. Viafore drowned.

Although Mr. Viafore’s body has yet to be found, prosecutors believed that Ms. Graswald’s inconsistent stories, and pictures she posted on Facebook after the accident were sufficient to indict her for her fiancé’s death.  They cite as evidence a picture of Ms. Graswald in a yoga pose against a bucolic setting and a video of her doing a cartwheel.

Facebook posts that demonstrate a lack of remorse have been figuring into criminal prosecutions for a while.  in 2011 Casey Anthony was indicted in the media for posts she shared of a “Bella Vida” tattoo she emblazoned on her back shoulder and pictures she posted showing Ms. Anthony partying while her daughter was still missing.   A California, judge sentenced a woman to 2 years in jail for her first DUI offense (typical first time offenders are given probation).  The judge cited a post- arrest picture the woman posted to MySpace while holding a drink.

But are Facebook posts, with all of their innuendo, a fair measures of guilt.   The Casey Anthony jury probably didn’t think so; although all we know for sure is that the posts, considered as part of the prosecution’s entire case, were not sufficient to lead to a guilty verdict.  And arguably posts, without a body, will not provide the lack of reasonable doubt necessary to convict Ms. Graswald.

But should these pictures hold the weight that members of the criminal justice system increasingly ascribe to them?  A problem seems to be context.  While the pictures seem damning when posted during or soon after an investigation, the evidence is circumstantial at best.  Absent testimony by the defendant corroborating his or her intent at the time of the post, (an event unlikely to happen) jurors can never be certain that the pictures demonstrate an expression of relief or a lack of remorse.

The issue of post-indictment remorse is transcends social media. Prosecutors recently introduced into evidence a picture of Dzhokhar Tsarnaev (the Boston Bomber) flashing his middle finger into a camera from a jail holding cell.  But Tsarnaev’s attorney, like Ms. Graswald’s spun the picture in a way that suggests it has nothing to do with a lack of remorse.

And therein lies the problem, skilled attorney’s on either side can explain  pictures, and intent while posting them, from several different angles.  The issue becomes whether their value is sufficient to justify supporting an indictment for a crime? a conviction? or a sentence?


In February 2015, two young men dared  Parker Drake to jump into a frigid ocean for virtual entertainment. Parker, who doctors diagnosed as having autism spectrum disorder, first “met” the men through twitter. After several exchanges the young men took Parker to the ocean, “for laughs” dared him to jump in and then videotaped Parker’s struggle to return to shore.  The men published the video on Facebook, you could hear them laugh as Parker battled the waves.

Upon discovering the tape, Manasquan, NJ Municipal Court officials charged the men with “endangering the welfare of an incompetent person.”  The problem, however, is that because 19 year old Parker voluntarily jumped into the ocean, the men had not, in fact, committed a crime.

The case is another example of a moral wrong failing to translate into a legal wrong.  Sadly, laws do not exist to punish those who use social media for bullying; just consider the events that prompted Tyler Clementi to jump off the George Washington Bridge.  With this unfortunate event, Parker’s mother joins the rank of parents who fail to see justice in the courts for reprehensible harms committed against their children.

The response to the Parker Drake event, much like the response to many  social media wrongs for which the criminal law offers no retribution, is both outrage and frustration.   Parker’s mother is seeking justice in the civil courts.  The politicians have weighed in too.  Just last week several New Jersey lawmakers announced their intention to draft a law aimed atpunishing individuals who victimized disabled persons.

The law is not well suited for punishment of harms like the one that happened to Parker.  Our Constitution often stands as a roadblock between justice for social media wrongs and the right to voice opinions and ideas.  First Amendment concerns prevent punishing many types of speech, particularly outside of the classroom.   And then there are issues of “void for vagueness.”  A law that punishes those who exploit the developmentally disabled leaves open to interpretation what constitutes “exploitation.” (and I suspect defendants charged in a crime such as this might try to escape punishment by challenging whether his or her “victim” was developmentally disabled.”)

I am interested in seeing the legislation New Jersey law makers propose.  My hope is that they can walk the fine line between justice and free speech.  The lawyer in me, however, suspects that the bill will never make it to the Governor’s desk; as we have seen too many times before, regulating social media bullying in the courts is a nearly impossible task.




Share If You Dare

We’ve all been there. We search the web daily looking for that funny meme or that inspirational quote to share with our “friends.” Maybe we are taking a break at work, or distracted while studying in the library when we see it: the perfect picture to post on Instagram. Often we download this picture off of Google or Tumblr. We then upload it to Instagram after choosing the perfect filter and hashtag to capture the essence of the photo.

What we often fail to realize is that this is ILLEGAL. When we sign up for Instagram, the fine print, which no one bothers to read, contains language that asserts that YOU own the pictures you post, or at least have the creator’s permission to post it. This is usually never the case. Furthermore, most people believe that this copyright infringement or violation of intellectual property rights can be resolved by giving “credit” to the creator in a comment under the picture. While this is likely to cure any hostile feelings of the creator, you can still be sued.

One section of the Instagram “contract” states, “you agree to pay for all royalties, fees, and any other monies owing any person by reason of Content you post on through the Instagram Services.” In essence, if you post without permission, you’re screwed. Instagram has taken careful steps to shield itself from liability. Instagram users should, likewise, protect themselves. We need to recognize our legal limitations when posting someone else’s work.

It is often said that each picture says a thousand words. In the case of Instagram, one of these potential words is “lawsuit”. Be cautious of what you post and where you get it from. Not only do we need to protect ourselves from suit, but we need to ensure we are respecting the works of others.

For more information, look to http://thesocialu101.com/6-things-everyone-should-know-about-instagram/.

It finally happened.  My mother joined Facebook.  I’m not sure what the current population of planet earth is, but it’s probably around 1.28 billion.  I know this because that’s how many people are currently using Facebook[1].

A few years ago when the company went public, people started complaining about a perceived lack of privacy.  Most people were concerned that the constantly evolving format created a need to always be aware that what you were posting would be directed to the appropriate audience.  What many people hadn’t yet realized was that Facebook had begun mining information at an unprecedented rate.

Sign-in to Facebook today and notice that those shoes you just considered purchasing are now featured prominently on your news feed.  That Google search you just performed has now caused advertisements to display alongside your profile.  It almost seems like Mark Zuckerberg is stalking us.  Taking their data-mining scheme to the next level, Facebook has gone on a spending spree.  They recently purchased popular apps Instagram and Whatsapp.  Those who use these apps have probably noticed that you can login to them using your Facebook information.

As the complaints have increased, Facebook has come up with a proposed solution – the “anonymous login.”  What it will do is allow users to login to third-party apps without giving any personal information to that app.  However, Facebook will still verify your identity, know what app you’ve signed in to, and they’ll know how often you sign in and how much time you spend on that app[2].

It seems that “anonymous” doesn’t really mean what we thought.  Where should the data-mining line be drawn?

[1] http://expandedramblings.com/index.php/resource-how-many-people-use-the-top-social-media/3/

[2] http://mashable.com/2014/05/01/facebooks-anonymous-login-is-evil-genius/

We all follow at least one person who pops up in our Instagram feed way too often.   They’re not the one posting group photos.  They’re not even posting photos of their food.  They’re the one who has perfected the angle to tilt their IPhone in order to get the best “Selfie”.  And they have the perfect filter to go with it.  We know their gym schedule.  We know when they’re getting ready for their night out.  We know when it’s bed time.  Their Selfies allow us to follow their schedules very closely.

For us followers, we can’t help but wonder- What are they thinking? Don’t they know they look ridiculous?  But for the repeat “Selfie” offenders, it could be a sign of an actual addiction.

For some people, the lyrics “first, let me take a Selfie” may ring true to a psychological disorder.  In one serious case, “A British male teenager tried to commit suicide after he failed to take the perfect selfie. Danny Bowman became so obsessed with capturing the perfect shot that he spent 10 hours a day taking up to 200 selfies.”[1]

Instagram users, especially the biggest “Selfie” offenders, may feed off the idea of receiving more and more “likes” on their photos to validate that people are in fact enjoying viewing their Selfies.  On celebrity instagrams, for example, Kendall Jenner, you see thousands of comments saying “LB for LB.”  This means that if you like one of that user’s photos, they will like one of yours back.  And for the Selfie addict, what better way to feel validated than to receive likes from random strangers?

What do you think? Can posting too many selfies be a sign of an actual addiction?

[1] http://www.realfarmacy.com/scientists-link-selfies-to-narcissism-addiction-mental-illness/#yQqQKLJZuagJXysL.99

Facebook has become a major part of most of our lives. We wake up and we check our social media accounts with the expectation that something has changed since we last checked them before bed. We use Facebook to keep in touch with long distance friends, close friends, and sometimes to meet complete strangers. But will becoming so social in our social media lives create anti-social behavior in our real lives? Will the next generation, born into social media, lack the social skills that the previous generations had no choice but to acquire?

Edward is on Facebook and notices a status posted by his Facebook friend and real life acquaintance, Tommy. The status reads, “Popped a Molly I’m sweatin’…amazing night.” Edward has now learned something about Tommy that he did not know; that he does drugs. At this point Edward comments on the status, “really mature, grow up”, and unbeknownst to Tommy, Edward immediately defriends him because he does not want to be associated with that type of behavior. The next time that Edward sees Tommy in person, he completely ignores him and their virtual and real friendship ceases to exist.

Before the existence of Facebook, Edward would have either never found out about Tommy’s drug use or learned through Tommy himself. In the former situation, Tommy and Edward would likely still be friends. In the latter situation Edward would have told Tommy to his face what he had said in the comment and would have told him that he no longer wanted to be friends. Facebook has allowed people to end relationships with the click of a button. Social media subscribers no longer have to approach a person face to face and can easily avoid an uncomfortable situation, if they choose. This can be beneficial in situations where the individual is known to be aggressive or violent and social media can be an alternative outlet in dealing with confrontation. But this reliance on Facebook also has its detriments.

A major concern is how the dependence on social media will, in the long run, affect the way in which we conduct ourselves in real time, face to face, in the real world. Those of us who have lived for most of our lives without social media have already learned the importance of relationships and the skills needed to conduct ourselves socially. Having lived without social media for the most critical years in our development and learning social etiquette is something we will retain no matter how much social media we use. But what about children who do not know a life without social media? Clearly, children are becoming social media users at a younger age. Children are saying things on social media that they probably would not in the real world. How will social media effect future generations? Will these generations still be able to grasp and utilize social skills regardless of their life long use of social media?

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.

Older Posts »