Richard Fox, Comment, The Return of “Voodoo Information”: A Call to Resist a Heightened Authentication Standard for Evidence Derived from Social Networking, 62 Cath. U. L. Rev. 197 (2012)
Introduction: Plaintiff’s electronic ‘evidence’ is totally insufficient . . . [T]he Court continues to warily and wearily view [the Internet] largely as one large catalyst for rumor, innuendo, and misinformation . . . [A]ny evidence procured off the Internet is adequate for almost nothing . . . Instead of relying on the voodoo information taken from the Internet, Plaintiff must hunt for hard copy back-up documentation in admissible form. . .
This quote, from Federal District Court Judge Samuel Kent in 1999, roughly coincides with the dawn of the Internet era. Eight years later, this same judge presided over a case in which he used a “quick search on the [I]nternet” to hold that it would not be prohibitively expensive for plaintiffs to fly from Ecuador to San Diego to attend court. Is this judge being hypocritical, or does he simply no longer believe that the Internet is “voodoo information” that is “adequate for almost nothing”? 4
Judge Kent’s attitude is not unique among American jurists who are skeptical of evidence derived from new forms of technology. Judges have expressed this attitude in opinions concerning the admissibility of audio recordings, photographs, motion pictures, and computer generated business records. As the prevalence and judicial acceptance of these technologies have grown, courts have lowered the barriers to admissibility…
Andrew E. Taslitz, Information Overload, Multi-tasking and the Socially Networked Jury: Why Prosecutors Should Approach the Media Gingerly, 37 J. Legal Prof 89 (2012)
Abstract: The rise of computer technology, the Internet, rapid news dissemination, multi-tasking, and social networking have wrought changes in human psychology that alter how we process news media. More specifically, news coverage of high-profile trials necessarily focuses on emotionally-overwrought, attention-grabbing information disseminated to a public having little ability to process that information critically. The public’s capacity for empathy is likewise reduced, making it harder for trial processes to overcome the unfair prejudice created by the high-profile trial. Market forces magnify these changes. Free speech concerns limit the ability of the law to alter media coverage directly, and the tools available to trial judges to minimize harm to trial fairness are toothless. The usual solution has been lawyers’ ethics rules designed to channel their communications with the press, particularly rules focusing on prosecutors.
This piece addresses these concerns, using a recent proposed revision to the American Bar Association Criminal Justice Standards for the Prosecution Function as a jumping off point for the discussion. Those Standards, like most state ethics rules, prohibit prosecutors from making “public statements that the prosecutor reasonably should know will have a substantial likelihood of materially prejudicing a criminal proceeding.” Drawing on cognitive science, behavioral economics, rumor-transmission studies, and jury research, this article argues that a substantial likelihood of mate-rial prejudice to criminal proceedings from prosecutor statements to the press will always be present in high profile cases. Accordingly, the rules generally governing prosecutor dealings with the press, including the latest version of those rules embodied in the proposed Standards, are unrealistic. Better rules are theoretically possible. Nevertheless, this article concludes,such rules are probably not politically realistic. Accordingly, this piece recommends modest changes to the proposed standards’ commentary to alert prosecutors to the true nature of the risks arising from their contact with the media and recommending prosecutor training and internal and external accountability mechanisms to improve prosecutor performance in this area.
Daily News & Analysis: Four social media lessons from the Boston attacks
Berkshire Eagle: Social media a double-edged sword in gathering Boston manhunt info
Business Insider: Bombing Suspects’ Attack On Boston Linked To ‘Social Media …
Providence Eyewitness News: The Buzz: Social media’s role in Boston suspect manhunt
The latest article on jurors and social media is listed below. Among other things, the article lists four reasons why courts are so concerned about jurors using social media.
(1) Potential for direct communication with members of the court
(2) Release of confidential information about the trial or the deliberation process
(3) Disclosing of personal information about a fellow juror
(4) Revealing an unacceptable bias for or against one party
I would add one more reason to this list or maybe expand #1.
Potential for communication with outside parties unaffiliated with the court.
When jurors use social media they are likely to post or write about the case. This increases the likelihood that they will get into a discussion or communication with an outside party about the case. This in turn may lead to the outside party improperly influencing the juror.
Social Media Use as Evidence of Juror Misconduct: Richard Raysman and Peter Brown
I have written two law review articles on this topic.
Lisa A. Schmidt. Note. Social Networking and the Fourth Amendment: Location Tracking and Facebook, Twitter and Foursquare, 22 Cornell J. L. and Pub. Pol’y 515 (2012)
Abstract: This Note focuses on the privacy implications of social networking activity in the context of location tracking. Facebook, Twitter, and Foursquare are all capable of tracking users’ locations while they are logged into the website, and the Fourth Amendment may not apply to this type of location tracking. This Note also discusses the Fourth Amendment case law detailing the reasonable expectation of privacy standard and concludes that any media placed on social networking websites – including location check-ins – may be without Fourth Amendment protection, because, in the words of the Katz opinion, the social networking users knowingly exposed that information to the public. Thus, Government officials may use any information posted on these websites to justify an arrest or as evidence in a case against a suspect. This Note details the users’ need to remain aware of publicly viewable information on social networking websites, from photographs and status updates to location check-ins.
Part I of this Note discusses the Katz reasonable expectation of privacy standard. Part II details Fourth Amendment doctrine in the context of location tracking, including considerations of plain view movements and the use of Global Positioning System (GPS) trackers. Part III discusses various implications of the Fourth Amendment in social networking, including consent and “opting in” to the privacy rules of Facebook, Twitter, and Foursquare. This Part also addresses recent developments in several cases implicating Fourth Amendment protection in social networking use. Part IV discusses some of the foremost Supreme Court Fourth Amendment cases, specifically those involving new technology and plain view surveillance. Part V focuses on the Supreme Court’s development of the “pretend friend” doctrine. Lastly, Part VI examines additional considerations in a social networking search analysis, including youth privacy and suppression claims.
On Friday, April 5, 2013, from 9:00 am to 3:30 pm the University of Maryland Francis King Carey School of Law’s Journal of Business & Technology Law is sponsoring a symposium titled, “Social Media and the Law: An Exploratory Look into the Legal Effects of Online Interconnectedness.” The event is free, open to the general public, and lunch will be provided to those who RSVP. Go here for more information.
h/tip to Shear on Social Media and the Law
Tentative Symposium Schedule
(This schedule reflects speakers confirmed as of March 27, 2013)
|9:00 – 9:30 am||Participant check-in, Law School Lobby|
|9:30 – 9:35 am||Welcome from JBTL members, Ceremonial Moot Court Room|
|9:35 – 9:40 am||Introductory Remarks, Dean Phoebe A. Haddon, Ceremonial Moot Court Room|
|9:40 – 11:00 am||Panel One: Student Athlete Social Media
Ceremonial Moot Court Room
|11:00 – 11:15 am||Break, return to Ceremonial Moot Court Room|
|11:15 – 12:35 pm||Panel Two: Social Media and Copyright Law
Ceremonial Moot Court Room
|12:35 – 1:40 pm||Lunch, Krongard Board Room|
|1:40 – 1:50 pm||Break, return to Ceremonial Moot Court Room|
|1:50 – 3:10 pm||Panel Three: Employment Law, Contracts & Privacy
Ceremonial Moot Court Room
|3:10 pm – 3:20 pm||Closing Remarks, Ms. Julie Hopkins, Intellectual Property Law Program Manager, Ceremonial Moot Court Room|
Houston Chronicle: Study: Gangs use web for braggadocio
Inside Social Games: Criminal Case claims the top spot among fastest-growing Facebook ..
Social News Daily: Facebook Threats Could Be A Felony Under Florida Law
Media Post Communications: Proposed Computer Fraud Law Could Make Bad Rule Worse
Digital Trends: Eh oui! Twitter hit by $50 million criminal lawsuit in France