Facebook Friends and the 4th Amendment (Everett v. State)


Facebook Friends and the 4th Amendment (Everett v. State)

While most believe that the issue of whether users of Facebook have a reasonable expectation of privacy in posts shared with others, see e.g., U.S. v. Meregildo, the question nonetheless occasionally resurfaces.  In Everett v. Statethe defendant argued that his 4th Amendment rights were violated when police, using a bogus name and profile, friended the defendant, monitored his Facebook page for 2 years and then used information discovered on his page to convict him.  According to a three-judge panel from the Delaware Supreme Court, the defendant did not have a reasonable expectation of privacy when he shared an incriminating photo with so-called friends on Facebook.  The court also noted that

as between Everett and his ‘false friend,’ the undercover Detective Landis, Everett assumed the risk that whoever was behind that account was a law enforcement officer, and, thus, there was no reasonable expectation of privacy that shields the incriminating information he shared.

Another interesting aspect of this case is that the monitoring by law enforcement occurred over a two-year time span.


Law Firms and Social Media


Law Firms and Social Media

Bloomberg law has an article discussing the challenges of creating social media policies for law firms.  Of particular note were the practical suggestions by Social Media Attorney Scott Malouf who I have had as a guest speaker in my Social Media Law class.  Scott knows social media.  Here are his tips for law firms.

* First, don’t view the policy as set it and forget it. Social media is too dynamic-platform services, user culture, and relevant legal requirements change quickly. A policy, ideally, should evolve in response.

* Second, don’t aim for perfection. Addressing “every” social media scenario is a Sisyphean task-users, communities, laws, ethical guidance, user goals, and platforms are just too varied. A better approach may be to create a shorter, user-friendly policy and support it with solid training and concrete examples.

* Third, remember the positive aspects of social media. Risk reduction, legal and ethical compliance, and creating clear expectations often drive social media policies-yet a policy shouldn’t undermine the benefits of social media. For example, many law firms are now podcasting. But you can’t just post an episode and hope people find it. You have to promote it in multiple ways and be open to listeners’ responses. Your social media policy shouldn’t eliminate or severely hamper these practices.

Biglawbusiness.com: Drafting and Implementing Social Media Policies for Law Firms

Willingness to Pay to Use Facebook, Twitter, YouTube, Instagram, Snapchat, and More: A National Survey

Cass Sunstein


Willingness to Pay to Use Facebook, Twitter, YouTube, Instagram, Snapchat, and More: A National Survey


There has been a great deal of discussion of the welfare effects of digital goods, including social media. The discussion bears on both private practice and potential regulation. A national survey, designed to monetize the benefits of a variety of social media platforms (including Facebook, Twitter, Youtube, and Instagram), found a massive disparity between willingness to pay and willingness to accept. The sheer magnitude of this disparity – a “super endowment effect” – suggests that in the context of the willingness to pay question, people are giving protest answers, signaling their intense opposition to being asked to pay for something that they had formerly enjoyed for free. Their answers are expressive, rather than reflective of actual welfare effects. There is also a question whether the willingness to accept measure tells us much about the actual effects of social media on people’s lives and experiences. It may greatly overstate those effects. In this context, there may well be a sharp disparity between conventional economic measures and actual effects on experienced well-being.

More Judicial Miscues on Social Media


More Judicial Miscues on Social Media

Here is another story about a judge running into trouble on social media.  Of the judicial missteps that I have seen, this one doesn’t seem that bad.  Here, Kentucky state judge Sandra McLaughlin was reprimanded for using Facebook to share a news article about a pending murder case in Jefferson District Court where she sits.  In addition to sharing the article, the judge posted the following comment

This murder suspect was RELEASED FROM JAIL just hours after killing a man and confessing to police.

According to the reprimand from the Judicial Conduct Commission, the judge violated her duty (1) to uphold the integrity of the judiciary, (2) conduct herself in a manner that promotes public confidence in the judiciary, and (3) to refrain from public comments about a pending case.

To read more about the case go here.  To access the reprimand go here.


GIF Provoking Seizure can be a Battery


GIF Provoking Seizure can be a Battery

A federal judge in Maryland has ruled that sending a flashing tweet with a strobe light to a journalist who suffers from epilepsy can be a battery. The defendant had argued that a battery required physical contact; however, the judge ruled that physical contact can be “of an amorphous nature; it is not always accomplished by means of a solid, graspable object.”  The judge went on to note that second-hand smoke, an electric shock, and a loud noise all of which don’t involve physical contact can also constitute a battery.

ABAJournal.com: Sending a flashing GIF to provoke a seizure can constitute battery, federal judge rules

Social Media and the First Amendment


Social Media and the First Amendment

Professor Noah Feldman has an interesting op-ed in the NY Times discussing the downsides of applying the First Amendment to social media.  He writes the article in light of the recent court ruling against the president for blocking users from his Twitter feed.

NYTimes.com: Are You Sure You Want a Right to Trump’s Twitter Account?

Free Speech is a Triangle

Jack Balkin


Free Speech is a Triangle


The vision of free expression that characterized much of the twentieth century is inadequate to protect free expression today.

The twentieth century featured a dyadic or dualist model of speech regulation with two basic kinds of players: territorial governments on the one hand, and speakers on the other. The twenty-first century model is pluralist, with multiple players. It is easiest to think of it as a triangle. On one corner are nation states and the European Union. On the second corner are privately-owned Internet infrastructure companies, including social media companies, search engines, broadband providers, and electronic payment systems. On the third corner are many different kinds of speakers, legacy media, civil society organizations, hackers, and trolls.

Territorial goverments continue to regulate speakers and legacy media through traditional or “old-school” speech regulation. But nation states and the European Union also now employ “new-school” speech regulation that is aimed at Internet infrastructure owners and designed to get these private companies to surveil, censor, and regulate speakers for them. Finally, infrastructure companies like Facebook also regulate and govern speakers through techniques of private governance and surveillance.

The practical ability to speak in the digital world emerges from the struggle for power between these various forces, with old-school, new-school and private regulation directed at speakers, and both nation states and civil society organizations pressuring infrastructure owners to regulate speech.

If the characteristic feature of free speech regulation in our time is a triangle that combines new school speech regulation with private governance, then the best way to protect free speech values today is to combat and compensate for that triangle’s evolving logic of public and private regulation. The first goal is to prevent or ameliorate as much as possible collateral censorship and new forms of digital prior restraint. The second goal is to protect people from new methods of digital surveillance and manipulation—methods that emerged from the rise of large multinational companies that depend on data collection, surveillance, analysis, control, and distribution of personal data.

This essay describes how nation states should and should not regulate the digital infrastructure consistent with the values of freedom of speech and press; it emphasizes that different models of regulation are appropriate for different parts of the digital infrastructure. Some parts of the digital infrastructure are best regulated along the lines of common carriers or places of public accommodation. But governments should not impose First Amendment-style or common carriage obligations on social media and search engines. Rather, governments should require these companies to provide due process toward their end-users. Governments should also treat these companies as information fiduciaries who have duties of good faith and non-manipulation toward their end-users. Governments can implement all of these reforms—properly designed—consistent with constitutional guarantees of free speech and free press.

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