Monu Bedi, Facebook and Interpersonal Privacy: Why the Third Party Doctrine Should not Apply, 54 B.C. L. Rev. 1 (2013)
Abstract: Do communications over social networking sites such as Facebook merit Fourth Amendment protection? The Supreme Court has not directly answered this question and lower courts are not in agreement. The hurdle is the Third Party Doctrine, which states that a person does not have a reasonable expectation of privacy in any communication voluntarily disclosed to a person or entity. All Internet communications are stored on third party servers or Internet service providers, and thus would seemingly lose Fourth Amendment protection.
Numerous scholars have weighed in on the issue — analyzing the nature of the communication or the entity to which the information is disclosed — in an effort to show that these communications continue to merit Fourth Amendment protection. These scholars, however, have largely ignored the overall effect of communications over social networking sites such as Facebook. This Article steps outside traditional Fourth Amendment scholarship and relies on the concept of interpersonal privacy rights as a way to protect communications over social networking platforms. Because social scientists have recognized that these relationships share the same qualitative structure and can be just as “real” as their face-to-face counterparts, this Article makes the argument that the concept of interpersonal privacy should apply to social networking relationships over the Internet. This analysis provides a new way to apply the reasonable expectation of privacy test under the Fourth Amendment — one that avoids the common pitfalls associated with the Third Party Doctrine.
As the article below indicates, a 19-year old Ohio woman has been charged with pandering sexually oriented material involving a minor. The defendant allegedly posted a consensual sex video of a 16-year old girl on Facebook. Unfortunately, this is not the first time that someone has posted a sex video on social media. However, this is one of the few times that a person has actually been prosecuted for the act. The statute covering the charge against the defendant is available here.
Dayton Daily News: Woman charged after posting sex video on Facebook
Kelly Lynn Anders, Ethical Exits: When Lawyers and Judges Must Sever Ties on Social Media, 7 Charleston L. Rev. 187 (2012)
This article addresses the very recent trend of requiring lawyers and judges to sever ties on social media, the professional implications of doing so, relevant rules governing judicial and attorney conduct, and a discussion of “best practices” for lawyers and judges to follow when social media connections must be broken. Recent opinions from states that have issued social media directives in this area will also be discussed, along with a brief overview of three of the most commonly used social media sites at the time of the publication of this article – Facebook, LinkedIn, and Twitter.
Through this discussion and analysis, one theme will continue to resurface – the increasingly pressing need for guidance and clarity in the MRPC and MRJC so that expectations involving social media connections will be clear, uniform, and much easier to manage for lawyers, judges, and anyone with whom they may communicate, either professionally or personally. Such clear-cut guidance would also decrease the need for severing ties that should not have been formed in the first place, thereby also serving to contribute to the preservation of solid and favorable reputations of all jurists and counselors in an increasingly virtual world.
In Re: Cory P involved two juveniles (J.C. and Cory P.) accused of stealing two motorbikes. J.C. willingly admitted to his role in the theft. However, Cory P. maintained his innocence and decided to put the government to its burden at trial. As part of its case in chief, the government called J.C. who testified that both he and Cory P. stole the motorbikes.
During the defense’s presentation of evidence, it introduced Facebook posts allegedly made by J.C. In these posts, J.C. not only admitted to stealing the motorbikes but also stated that was going to blame the defendant for the thefts. On cross-examination, the government introduced State’s Exhibit A which consisted of fabricated Facebook posts in which Cory P., not J.C., allegedly admitted to the thefts. When confronted by these fabricated posts on cross-examination Cory P. denied making them. The prosecutor then admitted that she had made up these Facebook posts during her lunch break. The prosecutor indicated that she made up the posts to show that you can manipulate Facebook pages if you don’t print out the Facebook pages…” Defense counsel for Cory P. never objected to these fabricated posts. The defendant was ultimately convicted of two counts of theft.
On appeal Cory P. raised several counts of error all of which were rejected. With respect to the fake Facebook posts the appellate court made the following determination. We find that appellee acted improperly in misleading appellant and not disclosing to appellant or his counsel that Exhibit A was a document that she had fabricated during her lunch hour in order to cross-examine appellant…However, we note that defense counsel never objected to appellee’s conduct. “Absent plain error, an appellate court will not consider errors that the defendant failed to object to at the trial level.”… Because the trial in this case was a bench trial, as opposed to a jury trial, and based on the evidence, as set forth in the following assignment of error, we find that the appellant was not prejudiced. The trial court, as trier of fact, was aware that appellee had fabricated the Facebook messages. We find that appellant was not prejudiced because there was not a reasonable likelihood that the judgment was affected.
BBC News: Twitter users: A guide to the law
Care2.com: 5 Things You Can’t Do On Social Media (And One You Can)
Whittier Daily News: Local cops increasingly turn to social media for preventive policing
Mason City Globe Gazette: Governor wants anti-bullying law amended to include social media