Tag Archive for 'facebook'

A Murder Victim’s Facebook is Off-Limits Before Trial

In the age of technology, social media has become the new frontier for evidence gathering in criminal cases. Especially amongst the younger population, the majority of communication is not simply verbal anymore—it’s written through Facebook messages, tweets, and pings, or even conveyed through pictures via Instagram, Twitpic, and Snapchat. To some, this may seem like a gold mine of information with any potential incriminating evidence entirely recorded somewhere in the Internet ether.

However, the Constitution has long protected the right to privacy. Thus, when it comes to online communications, especially those intended to be private, lawmakers and judges alike have been extraordinarily cautious in balancing one party’s need for information against another party’s right to privacy.  Facebook Killing

A recent decision rendered by the California Court of Appeals for San Francisco County rightly explained why the careful preservation of privacy in criminal cases is so important in an increasingly digital generation. Specifically, the Court held criminal defendants may not compel social media platforms like Facebook and Twitter to disclose a victim’s private online communications before trial begins.

Can Criminal Defendants Use Victim’s Internet Profiles as Evidence?

The case involved a gang-related drive-by shooting in the Bayview District of San Francisco that resulted in the death of Jaquan Rice, Jr. and serious injuries to his girlfriend. The shooters were identified as Lee Sullivan and Derrick Hunter, both members of a gang called “Big Block.” In its case to the grand jury, the prosecution maintained Rice was a member of rival gang “West Mob,” and this gang rivalry was the driving force behind the drive-by and murder. San Francisco Police Department Gang Task Force expert Inspector Leonard Broberg testified to the grand jury that “gangsters are now in the 21st century and they … do something called cyberbanging. They will actually be gangsters on the Internet. They will issue challenges; will show signs of disrespect, whether it’s via images or whether it’s via the written word.”

Defendants Sullivan sought to obtain all public and private social media records from Facebook, Instagram, and Twitter of Rice and purported witness Renesha Lee, the former girlfriend of Sullivan, to help build his defense case prior to trial. Sullivan believed such records would expose Rice as “a violent criminal who routinely posted rap videos and other posts threatening [Hunter] and other individuals.” The defense further argued that obtaining the records before trial was necessary to ensure Sullivan’s constitutional right to present a complete defense to the charges against them for a fair trial and their rights to effective legal assistance and confrontation of adverse witnesses.

Although the lower court bought defendant Sullivan’s arguments for the records, the Court of Appeals quickly and rightly reversed the decision and denied him access. However, the Court of Appeals did not deny access to such records indefinitely. The Court emphasized that pretrial access to confidential information by the defense was off limits, but the defense could potentially access such information during trial. The Court of Appeals reasoned that if it were to allow pretrial access, a trial court might be forced to weigh the defense’s need for information against a victim or witness’ right to privacy without enough information from either side to make a truly balanced decision. Such a process would be far too risky and the price could potentially be a breach of victims or witnesses’ constitutional right to privacy. The Court further maintained that enforcing this decision would not breach Sullivan’s constitutional rights to fair trial or effective assistance, because it was limited to pretrial access and any evidence required to afford him a full and fair trial could eventually play out once trial actually began. Thus, Sullivan was denied access to Rice and Lee’s social media records until trial.

This Court of Appeals decision sheds important light on how new mediums of evidence might fit into the frameworks of evidence law and criminal procedure without disrupting constitutional individual rights.

Should Parents Be Liable for Their Child’s Creation of a Defamatory Facebook Page?

In Georgia, two seventh graders posted defamatory remarks about a classmate on a fake Facebook page that they created under her name. Their parents may be held liable for their actions once the parents learned of the account, and did not take measures to remove it. This is an unprecedented case that will decide whether parents should be held liable for their children’s activity on the internet.

cyberbullying parent liabilityThe students used a “Fat Face” app to twist the girl’s features out of shape, and made derogatory remarks about her. Per the court document, both students added material to the profile that mentioned that the girl held racist views and was a homosexual. They also had the fake Facebook page send invitations to the girl’s friends, teachers, and relatives. According to the court, the material on the fake Facebook page was “graphically sexist, racist, or otherwise offensive.”

When the girl’s parents found out about the fake Facebook page in the name of their daughter, they discussed the matter with the principal of the school. The two students responsible for creating the page admitted their involvement. They were then suspended from school for two days.

Even after the students’ parents were informed in writing of their children’s behavior, the fake Facebook page could be viewed for an additional 11 months, after which Facebook made the account inactive. It is the opinion of the court that during that time, the fake persona kept extending or accepting requests to become Facebook friends with more users, and that other users saw the page, and posted on it.

The judge ruled that the parents may be held liable for not compelling their son to remove the fake Facebook page that made possibly libelous remarks about the girl. According to the opinion of the judge, “Given that the false and offensive statements remained on display, and continued to reach readers, for an additional 11 months, we conclude that a jury could find that the [parents’] negligence proximately caused some part of the injury [the girl] sustained from [the boy’s] actions (and inactions).”

The case is now going to be tried in the lower court. Hopefully, the trial court will decide in the girl’s favor and hold the parents liable, thereby setting a new precedent that will deter other students from engaging in the same type of bullying behavior.

Social Media and Employer Discrimination: Are You Protected?

It’s no secret that employers look up the social medial profiles of job applicants. The Society for Human Resource Management found that recruitment through social media websites raised from 34 percent in 2008 to 77 percent in 2013. A quick glance at a person’s Facebook profile often tells more about that person than their formal resume.

social media employment discriminationProfiles on Facebook or LinkedIn include all kinds of personal information, including race, gender, age, and ethnicity. How do you know if a potential employer isn’t discriminating against you in the hiring process based on one of these factors? The unfortunate answer is, you don’t.

Since the Equal Employment Opportunity Commission can’t regulate employee discrimination online, the EEOC suggests companies use a third party to survey social media profiles. Using someone not involved in the hiring process will rule out the possibility of discrimination online.

Also, companies can only use public information on a candidate’s profile. Employers may not use private information while deciding who to hire. That means, if a person’s profile is private, an employer may only use information that everyone can see.

In order to increase employee privacy, seven states have enacted a bill that prohibits employers from requesting social media passwords: Louisiana, Maine, New Hampshire, Oklahoma, Rhode Island, Tennessee, and Wisconsin. Legislation for the same bill is pending or has been introduced in 28 states.

There is always risk of discrimination by a potential employer when recruiting on social media. To protect yourself, keep your profile private, and always think twice about what you post online.

The Right of Free Speech vs. Online Business Reputations

SLAPP Lawsuits and the Internet

In the mid-90’s, Oprah Whinfrey dedicated an entire episode of her talk show to the topic of mad-cow disease spreading around several countries, including the United States. Cattlemen in Texas formed a coalition, claiming that the show negatively affected future beef sales, and sued her in federal court on a tortious interference with business reputation claim. After spending an exuberant amount of money defending the suit, Whinfrey ultimately won, with the court finding that the cattleman failed to show she had made any false statements.

anti-slapp internet free speechSimilarly, in 2010, a towing company sued 21-year-old Justin Kurtz for creating a Facebook page dedicated to criticizing the company for wrongfully towing his car. This was a fairly unique lawsuit at the time because the comments were made on the Internet by a member of the general public, as opposed to a public figure with significant influence on traditional media.

Both of these suits are called SLAPP-suits. These types of lawsuits have triggered much state legislation aimed at protecting the general public under the 1st amendment right to free speech and the right to petition the government for unfair practices of big business.

These relatively new suits, targeting the general public for their negative comments on Internet sites like Yelp and Facebook, are the brain-child of a three decade old problem of lawsuits being filed by big business entities. Critics argue that these lawsuits against the everyday citizens are an attempt to silence them from exercising their right of free speech or their right to petition the government. These suits are called SLAPP suits, which stands for “Strategic Lawsuits against Public Participation.”

Since the real motive of a SLAPP suit is to punish and deter criticism, the lawsuits have been successful in “chilling” free speech and discouraging the public from making future complaints against the company. There are many documented cases where defendants found it easier to remove their posts and remain silent.

States Have Tried to Protect Individual Free Speech with Anti-SLAPP Legislation

Public outcry against these suits resulted in many states enacting anti-SLAPP legislation. The purpose was to prevent an entity from filing a suit when the result would chill free speech. For example, California’s version of anti-SLAPP legislation is California Civil Procedure Code, section 425.16, which states that a person is protected from a suit if “any act of that person in furtherance of the person’s right to petition or free speech under the United States or California Constitution in connection with a public issue.” If the person is sued anyway, they will lose. However, a relatively small number of states have legislation as broad as California and only about one half of the states have legislation at all.

Is the Internet Considered Media?

When a state legislature is drafting Anti-SLAPP legislation, they often leave out protections that would cover the media. The First Amendment does not protect the media for defamatory or libelous statements, for publishing information not of public concern, or for a statements that are false and published with actual malice. These restrictions don’t apply to the general public. A member of the general public would be protected for making statements about the same or similar subject matter. Remember, Oprah won her suit only because the court found the statements were true.

When the Internet became widespread, a federal statute called the Communications Decency Act was passed. Although its original wording restricted free speech on the Internet, the Supreme Court struck down those sections and included wording that ultimately protects sites like Yelp and YouTube. Unfortunately, only the owners of the sites are protected from a defamations suit resulting what other people post. The individuals is not explicitly protected.

Has the Internet Transformed the General Public into the Media?

The question stands, if a person voices their opinion on the Internet, which has become the new mass medium, have they transformed into an agent for the media, and thereby deserving of less protection? If so, what protections should they be awarded when it comes to potential SLAPP suits?

An increasingly popular view is that an individual retains their status as such, and is therefore not an agent of the media and is protected by Anti-SLAPP legislation. In fact, there have been a number of California cases where complaints for defamation arising from Internet postings were successfully defended by using the state’s anti-SLAPP statute.

Some of the protections for Internet postings have remained the same as those for which the traditional anti-SLAPP laws were established: to protect the general public. These protections include the right to free speech (online speech in this case), the fact that the cases have no legal merit, and the fact that the lawsuit creates a “chilling effect”, as explained earlier. The courts have also found that people on the Internet have the right to remain anonymous when posting criticism. Businesses have attempted to issue subpoenas to compel the person to reveal their identity, which has been successful in some cases and found to be a valid defense in others.

The fact remains, however, that there has failed to be consistent rulings regarding Internet use and the protections individuals are awarded. The problem remains that everyday citizens are often not financially equipped to defend lawsuits brought by big business and their criticisms are often silenced.

Modern Technology Calls for Broader Constitutional Rights

Since the states vary in the broadness of their anti-SLAPP legislation, further protection is sorely needed. This type of protection can only come from a broadly defined federal statute, which will force the states to protect their citizens. Recently, many have been advocating for a federal anti-SLAPP law to protect people in states that either do not have laws or have laws that are too broad to adequately protect an individual’s right to free speech.

As a strong supporter of First Amendment rights, my view remains: it is no longer valid that the media should be limited in protection. In a sense, we have all become the media because of the ease in which individuals can widely disseminate information on the Internet, creating just as much influence as traditional media. Therefore, if the goal of traditional anti-SLAPP legislation is to protect individual rights and to protect those who do not have the resources to defend themselves against big business, those protections should be expanded to the media. This would quell the controversy and prevent needless litigation. Most importantly, it would protect the constitutional rights that make the United States unique.

Violent Facebook Posts: Threats or Protected Speech?

Everyone has bad days, and everyone has different ways of dealing with them. Some people go to bars, some go the gym, some go shopping… Soon, the Supreme Court will decide whether violently venting frustrations on Facebook will be classified as true, criminal threats, or a protected way to decompress.

anthony elonis facebook violence2010 was a rough year for Anthony Elonis. His wife moved out and he lost his job. In response to these events, he took to Facebook. His posts were often written as lyrics or mimicking the comedic styling of others, and were specific and violent in theme. As a result, his wife called the authorities, and a court issued a protective order.

Unsurprisingly, he responded with violent lyrical threats referencing his wife, the judge, the sheriff’s office, and even elementary schools. Eventually, the FBI became involved. After a visit by two agents, guess how Elonis responded?

Direct references to killing one of the agents in another lyrically styled Facebook post.

When Is a Threat a Threat?

This case presents a few complicated legal questions. At the core, the Supreme Court should be clarifying when a threat really is a threat. According to Virginia v. Black, one of the flagship cases for true threats, the speaker need not actually intend to follow through with the threat. Indeed, the lack of First Amendment protection over true threats is to protect people from fear of the possibility of violence.

This offers little clarity on when words lose protection and become criminal in nature. In fact, courts across the country seem to pick and choose, on a case-by-case basis, whose intent and perception matter when applying a standard. Some look towards the subjective intent of the speaker, where others look towards whether the reasonable person receiving the message would feel threatened. Even where courts settle on a “reasonable” standard, they struggle to apply a consistent standard of reasonableness—for instance, is it the reasonable listener, or the reasonable speaker?

Why Does This Matter?

The first question many may ask is “why does this matter?” In today’s day and age, where communication can happen nearly instantaneously, the lack of clarity of when the First Amendment applies is troubling.

While Elonis’ method of therapy unfortunately struck fear into others, his case matters because it will be setting a new benchmark. While the current Black standard has been more of a grey area, it has likely kept courts cautious in how to treat speech. Now, a line will be drawn. Too strict of a standard, and free speech suffers; too loose, and the freedom to not feel threatened by violence does.

“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” These famous words of Justice William Brennan succinctly define how we generally view speech in this country. Even though the sentiment comes from a time when flag burning and taking to the street to express anger was more common than logging onto social media to do so, hopefully the court will keep it in mind when deciding how to treat online speech.