Judges and Social Media: ‘Friends’ with Costs and Benefits

Benjamin Cooper

Abstract:     

A wave of recent judicial ethics opinions from the states and the ABA offer guidance on navigating the ethical minefield of social media use by judges. This Article surveys those opinions and argues that although they provide helpful guidance on a number of issues, they fall disappointingly short in providing clarity on the critical issue of whether judges may “friend” lawyers who may appear before them, and if so the extent of any disclosure obligation to other parties in litigation involving the social media“friend.” To read the entire article go here.

 

 

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SCT Briefs Filed in Elonis v. United States (Facebook Threat)

In Elonis v. United States the defendant was convicted of violating the Interstate Communications Act and sentenced to more than three years in prison. His conviction stemmed from a series of ominous Facebook posts in which he threatened his wife, a former employer, and the community as a whole. Some of the individuals threatened by the defendant were friends with him on Facebook.

Here is a sample of what he posted:

That’s it, I’ve had about enough

I’m checking out and making a name for myself

Enough elementary schools in a ten-mile radius

to initiate the most heinous school shooting ever imagined

And hell hath no fury like a crazy man in a Kindergarten class

The only question is…which one?

Fold up your PFA [Protection from Abuser oder] and put it in your pocket

Is it thick enough to stop a bullet?

The defendant argues that these posts were rap lyrics and that he had no intent on carrying out what he wrote on Facebook. The defendant also claims that the posts were protected by the 1st Amendment and that in order to be convicted the government had to prove that he had a subjective intent to threaten. 

This subjective intent standard is the law in a few jurisdictions (Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont). In contrast, the government argues that the lower courts were correct when they upheld the defendant’s conviction because the prosecution only needed to prove that a “reasonable person” would regard the defendant’s Facebook posts as threatening. It will now be up to the SCT to determine the applicable standard to apply to online criminal threats.  

The specific issue in this case is whether, consistent with the First Amendment and Virginia v. Black, 538 U.S. 343 (2003), conviction of threatening another person requires proof of the defendant’s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort?

Brief for Petitioner, Anthony D. Elonis

Brief for the Marion B. Brechner First Amendment Project and Rap Music Scholars (Professors Erik Nielson And Charis E. Kubrin) in Support of Petitioner

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The Slippery Slope of Material Support Prosecutions: Social Media Support to Terrorists

Emily Goldberg Knox

Abstract:
On September 21, 2013, a group of al-Shabaab gunmen attacked the Westgate Shopping Mall in Nairobi, Kenya, killing nearly seventy civilians. Al-Shabaab’s media wing, HSM Press, launched a public relations campaign on Twitter claiming responsibility for the attack, posting live information and pictures, and taunting Kenyan and global security forces with threats of future action. More recently, ISIS’ social media campaign has drawn much international attention. This Note discusses whether the U.S. government could successfully pursue material support to terrorist charges against social media companies for allowing designated foreign terrorist organizations to use their services and if so, the constitutional and policy implications.

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NLRB and Social Media

 The National Labor Relations Board: Perspectives on Social Media

Christine O’Brien

Abstract:     

This article provides an update to the NLRB’s viewpoint on employees’ social media posts concerning work-related matters that impact the employment relationship. Work time and private lives are blurring further than ever, as employees post updates and comments on an astonishing range of matters, to sites including Youtube, Google, Facebook, Twitter, Snapchat, Instagram, Linkedin, their Tumblr blogs, and more. For example, in just a log-in moment, typing a mere 140 characters, employees apprise the world of their perspectives on what just transpired at the office, point of view (pov) included. Employees’ social media use has increased workplace pressures. The tensions between employers’ reputational rights, along with efforts to maintain workplace decorum and productivity, are increasingly conflicting with employees’ expressions of workplace frustrations and more in their online activities.

The National Labor Relations Act protects private sector employees’ regardless of union affiliation, to the extent their communications cover protected concerted activity – matters of shared concern relating to: wages, hours and working conditions, or mutual aid and protection. The National Labor Relations Board has taken advantage of the popularity of social media to educate the public about the protections afforded to employees by Section 7 of the National Labor Relations Act, and over the past five years has issued a number of reports, advice memoranda, and decisions to reinforce its role as administrative authority on employee’s employment-related social media use. The NLRB has signaled its readiness to respond to unfair labor practice charges filed by employees or unions against employers to the extent the employers have policies or act unlawfully to interfere with employees’ Section 7 rights. To get a sense of the nuances of these cases and the wide scope of employee communications that trigger NLRB scrutiny, this article summarizes a recent top ten cases and adds to these several recent additions.

The author recommends for employees to more closely manage and edit their posts so as to avoid workplace-related communications that are not protected by the NLRA. Furthermore, employers are advised to conform to the NLRA when reacting to employee posts that raise issues of concern, and further, to understand how the NLRB will construe their responses. To the extent employees reasonably construe employers are prohibiting protected concerted activities, such actions will be found to be unlawful. Finally, employers should create social media policies that provide specific guidance and examples for employees, managers, and even C-level officers, on the types of communications that are covered, and not covered. In this way, employees’ and employers’ interests are both well-served.

 

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CA to Prohibit Public Employers from Demanding Social Media Passwords

It appears as though California Governor Jerry Brown, in the near future, will sign AB 25. This bill prohibits public employers from demanding social media passwords or usernames from employees or job applicants. However, there is a carve out for law enforcement agencies. Also, it should be noted that California passed a similar bill in 2012 but some believe that that law may not apply to public employers. Thus, some felt the need for a stopgap bill.

To read more about the new law go here.

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Prosecutors Disciplined for Criticizing Jurors on Facebook: “12 idiots”

According to the Brainerd Dispatch article below, two Minnesota prosecutors have been disciplined for going on Facebook to criticize jurors who acquitted a defendant in a criminal sexual misconduct case. The Facebook comments by the prosecutors have been subsequently removed.

Two assistant Clay County attorneys face disciplinary action after making disparaging comments over Facebook about a jury decision in a sexual assault trial.

Clay County Attorney Brian Melton said Thursday that until the disciplinary action is final, he can’t talk about specific penalties, but he outlined the reasons he took action against Pamela Harris and Jenny Samarzja.

Melton said that several weeks ago he was made aware of comments the lawyers exchanged over Facebook in July after a trial in which Harris was the prosecutor ended in a not guilty verdict.

Melton said Harris posted comments on Facebook to the effect she didn’t think she’d be spending her whole week with “12 idiots.” 

Samarzja implied it was not a shining moment for Clay County, according to Melton, and he said she punctuated her comment with, “Wake up people!”

Melton said that when he was alerted about the online comments, he told Harris to remove them and she did.

He said the statements were a violation of the public’s trust, and he apologized on behalf of his office for any offense jurors may have taken.

He said both attorneys are continuing to go about their regular duties.

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Deputy Claims Harris County Social Media Policy Violates His Rights

A deputy sheriff (Carl Pittman) has filed a preliminary injunction against a recently enacted social media policy of the Harris County Sheriff’s Office (HCSO).  According to Pittman’s federal lawsuit, “[t]he policy is riddled with language unnecessarily curtailing the rights of Pittman and others employed within the HCSO from speaking out as citizens on matters of public concern.”  The lawsuit goes on to cite some examples of where the social media policy falls short a few of which have been reproduced below

an employee’s actions must never bring the HCSO into disrepute, nor should conduct be detrimental to the HCSO’s efficient operation

for safety and security reasons, HCSO personnel are cautioned not to disclose employment with the HCSO that employees cannot engage in “blasphemous” or “negative” speech about the HCSO or its personnel

that HCSO employees are prohibited (unless they receive “express permission from the Chief”) from posting HCSO’s logos or badges, or personal photographs that may cause them to be identified as HCSO employees


HCSO issued the following response to the lawsuit.

“As a 21st century-leading law enforcement agency, the Harris County Sheriff’s Office recognizes the power and value of social media as an important communication tool. As such, we use social media actively to inform the community on public safety matters, to create awareness, and promote the achievement of HCSO employees, among other things.

Major law enforcement agency’s across the nation have instituted similar policies. The HCSO’s social media policy was modeled after researching and reviewing other similar policies, and parallels the conduct expected of all HCSO employees as outlined in the HCSO’s code of ethics, and standard departmental policies.

Just as we urge the general public to take common sense measures when using social media for the safety of their children, their families and property, it is important that we be concerned about the security and integrity of our HCSO employees when using social media.

As public servants striving to achieve and maintain the public’s highest level of trust and respect, there must be reasonable expectations on how social media is used and how that may reflect on the Harris County Sheriff’s Office, and the ability of our employees to conduct their important work in the community. It has been long accepted and expected that public employees are held to a greater standard of conduct, whether on or off duty.

Planned with the release of the HCSO’s social media policy is training, precisely to educate HCSO personnel on the importance of social media use and security.”

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Defendant’s Girlfriend Arrested for Trying to Facebook Juror

To date, many people have heard stories about jurors improperly using the internet to conduct research or communicate with others. Unfortunately, the stories have become all too common. What most people don’t hear about are stories in which individuals use the internet to contact jurors. It doesn’t happen often but as the article below illustrates it can occur. What is not clear from the article is how the defendant’s girlfriend obtained the name of the juror in order to send a Friend Request. 

 

Detroit News: Suspect’s girlfriend arrested for trying to Facebook juror deciding his

Pontiac–A 22-year-old Goodrich woman has been jailed and faces contempt of court charges after allegedly contacting a male juror deliberating her boyfriend’s fate in a drug trial and asking him to “friend” her on Facebook.

Brianna Trovato was arrested on a bench warrant Wednesday morning outside Oakland Circuit Court after Judge Martha Anderson was informed by a juror he had received a friend request from Trovato. She had been sitting in court every day during the trial of her boyfriend, Samuel Misko, 23, also of Goodrich, who was convicted Wednesday of six counts of manufacturing with intent to deliver marijuana and six related firearms offenses

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Delaware is Working to Protect Your Digital Assets After Your Death

Last week, Delaware became the first state to adopt (codify) the Uniform Fiduciary Access to Digital Assets Act (UFADAA) (for background information on UFADAA go here). This new law will address ownership and control of digital assets after someone dies. It remains to be seen however whether other states will adopt UFADAA. Below is an excerpted article from Ars Technica discussing the protection of digital assets after death.

While some states, including Idaho and Nevada, have some existing provisions pertaining to limited digital assets for heirs, they are not as broad as the new Delaware law. For now, the state’s version of UFADAA only applies to residents of Delaware, one of the smallest states by population and land area. If other states don’t follow suit soon, people creating family trusts could conceivably use this Delaware law to their advantage, even without residing in Delaware. However, even though many tech companies (including Twitter, Facebook, and Google) are incorporated there, they will not be affected by the new law.

“If a California resident dies and his will is governed by California law, the representative of his estate would not have access to his Twitter account under HB 345,” Kelly Bachman, a spokeswoman for the Delaware governor’s office, said by e-mail.

“But if a person dies and his will is governed by Delaware law, the representative of that person’s estate would have access to the decedent’s Twitter account under HB 345. So the main question in determining whether HB 345 applies is not where the company having the digital account (i.e., Twitter) is incorporated or even where the person holding the digital account resides.”

While an important first step, Suzanne Walsh, an attorney with Cummings and Lockwood in Connecticut and chair of the UFADAA committee, told Ars that she is waiting for the most populous state to adopt its own version, which could also have an important influence on other states.

“I think California is the most important,” she told Ars. “It’s even more important that we have uniformity and uniform enactment.”

“You will not share your password”

Specifically, the new Delaware law states:

A fiduciary with authority over digital assets or digital accounts of an account holder under this chapter shall have the same access as the account holder, and is deemed to (i) have the lawful consent of the account holder and (ii) be an authorized user under all applicable state and federal law and regulations and any end user license agreement.
Typically, when a person dies, access to a digital service officially dies with them. Even giving your password to your spouse or a trusted loved one is forbidden under Facebook’s terms of service.

You will not share your password (or in the case of developers, your secret key), let anyone else access your account, or do anything else that might jeopardize the security of your account.

You will not transfer your account (including any Page or application you administer) to anyone without first getting our written permission.
In 2004, Yahoo famously denied access to a US marine’s e-mail account to his family after the marine was killed in action in Iraq.

Neither Twitter, Facebook, nor Google immediately responded to Ars’ request for comment.

“This problem is an example of something we see all the time in our high-tech age—our laws simply haven’t kept up with advancements in technology,” said Daryl Scott, in a statement last week. Scott is a member of the Delaware House of Representatives and the lead author of the bill. “By signing this bill into law, we’re helping to protect the rights and interests of the average person in the face of a rapidly evolving digital world.”


To read the full article go here.

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Twitter Pushing to Reveal Information About National Security Requests

The article below (Twitter Weighing Legal Options on Broadcasting National Security Requests Data) discusses the efforts by Twitter to provide its users more information about the national security requests that it receives from the government. In the article, Jeremy Kessel a senior manager of global legal policy at Twitter states

…if the government will not allow us to publish the actual number of requests, we want the freedom to provide that information in much smaller ranges that will be more meaningful to Twitter’s users, and more in line with the relatively small number of non-national security information requests we receive. We also pressed for the ability to be specific about different kinds of national security requests and to be able to indicate ‘zero requests’ if that applies to any particular category of request

To read the article in full go here.

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