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Monthly Archives: November 2013

Accessing and Monitoring a Juror’s Twitter Account

Today, a judge heard arguments about whether defense counsel for Jodi Arias should gain access to the Twitter accounts of the prospective jurors in Arias upcoming sentencing trial.  Here is the motion filed by the Arias defense team. 

As some may recall, Arias was previously convicted in May of killing her on and off again boyfriend, Travis Alexander.  At the time of her conviction, the jurors could not decide whether or not Arias deserved the death penalty.  Thus, although she was convicted, she has not been completely sentenced.  Her case is in a state flux as prosecutors must decide if they want to seat a new jury in order to pursue the death penalty.  If a new jury is not empanelled, Arias will be sentenced to life.

According to defense counsel, they need access to the Twitter accounts of any future jurors to ensure that any decision made by the jury is based on evidence presented at trial not information gleaned from others via Twitter.  The defense attorneys also note that in Arias’ earlier trial some jurors failed to strictly abide by the courts admonitions against using social media.  

It is highly unlikely that the court will grant the defense’s request.  If courts start requiring jurors to turn over access to their social media accounts, many more prospective jurors will find reasons why they can’t serve.

The New Speech: New Law Review Article


Andrew Tutt, a visiting fellow at the Yale Information Society Project, has posted a new law review entitled The New Speech.  The article will be published in the upcoming edition of the Hastings Constitutional Law Quarterly.







Could the government prevent Facebook from deleting an individual’s Facebook account without first following government-prescribed procedures? Intervene to require Google to conduct its search engine rankings in a certain manner, or subject Google to legal liability for wrongful termination or exclusion? Require social networks and search engines to prominently reveal the criteria by which their algorithms sort, order, rank, and delete content? Demand that some user information or data be deleted, withheld, made inalienable, non-transferable, ungatherable or uncollectable? Engage in detailed regulation of the intellectual property and privacy relationships that inhere between individual users and the platforms they engage?

Each of these questions implicates the First Amendment, and as each question reveals, the same stresses that strained the institution of property when Charles Reich wrote The New Property in 1964 confront digital speech in 2014. The most important “speech” of the next century will be generated, intermediated, transformed, and translated by massive computers controlled by powerful institutions: petitions in front of the shopping mall replaced with “Likes” on Facebook and “Votes” on Reddit; sports leagues replaced by leagues of Counter-Strike and Call of Duty; broadcast and cable news replaced by interactive, algorithmically-generated, computer-curated granularly distributed news memes spread via blogs and aggregators.

As more of the activities that were once exclusively the province of the physical world become the province of the digital, more of the issues that once confronted the distribution and allocation of rights in property will confront the distribution and allocation of rights in speech. While the great speech debates of the twentieth century were about the content of speech — that is, what one could say — the great speech debate of the twenty-first century will be about what counts as speech and whose speech counts. Will it be that of institutions and algorithms, or individuals and organic communities?

These are questions courts are already confronting and they are getting the answers wrong. In contrast to scholars who by turns either deemphasize the transformative nature of the New Speech or argue that courts will have little impact on its growth, this Article argues that potentially critical judicial missteps are already occurring. Just as the needs of modern industrial society were delayed and often stymied by the judiciary of the early twentieth century, if we fail to consider the implications of the speech decisions courts make now, the needs of the modern information society may be delayed and stymied by the judiciary of the early twenty-first.

This Article is an effort to explore the ways in which speech platforms represent a new challenge to the First Amendment, one that will require it to bend if we are to prevent the Lochnerization of the Freedom of Speech. It ties together various threads — the power of automation, the centrality and power of Internet media platforms, the doctrines developing in the courts, the actual acts of censorship in which these platforms regularly engage, and the core purposes the First Amendment was designed to serve — to make a sustained argument that we must think seriously about restructuring and dejudicializing the First Amendment if we are to avoid seeing the First Amendment transformed into a powerful shield for the very sorts of censorship it was written to prevent.

The Best Blogs Discussing Social Media Law

Here is my list of the best blogs that discuss the impact of social media on the law.  If anyone has additions to the list, please feel free to pass them along.

Shear on Social Media Law

Wassom on Social Media Law

Social Media Law Bloomberg News

Social Media JD Supra


Social Media and the Law

Social Networking Law Blog

Socially Aware

Social Media Law Brief

Social Media Law Update

Social Media in the Workplace: New Law Review Article

Jon Garon, Social Media in the Workplace:  From Constitutional to Intellectual Property Rights


Social media has become a dominant force in the landscape of modern communications. From political uprisings in the Middle East to labor disputes in Washington State, social media has fundamentally disrupted the way in which communications take place. As noted constitutional scholar Erwin Chemerinsky explained, “technology has changed and so has First Amendment doctrine and American culture. It now is much more clearly established that there is a strong presumption against government regulation of speech based on its content.” Just as the government must tolerate more speech, the same thing is true about employers. Chemerinsky further notes that “for better or worse, profanities are more a part of everyday discourse.” Abrasive speech may be coarse from the word choice or may more readily upbraid the objects of the speech. Whether foul or abusive, such speech now pervades commercial and social media.

Social media fundamentally upends the notion of the traditional commercial media environment and with that, it reverses the established legal doctrine from constitutional assumptions to everyday rules involving copyright, defamation, and unfair labor practice. For employers, these rules are particularly important to navigate because they effect the manner in which the companies communicate with the public, how employees communicate with each other, and how laws are restructuring the employee-employer relationship. The transformation is taking place with changing policies affecting trade secrets, confidential information, copyrighted material, aggregated data, trademarks, publicity rights, and endorsements.

This article highlights the nature of the changes as they present the new paradigm shift and provides some guidance on how to prepare policies for the transitional model. The article tracks the rise of the many-to-many model of social media, its effect on commercial speech, intellectual property, and labor law. The article concludes with suggestions on employment policies geared to managing these changes in the modern workplace.



Colleges Using Social Media to Screen Applicants

The Sunday edition of the NY Times had a lengthy article entitled They Loved Your G.P.A. Then They Saw Your TweetsAs the title suggests, this article is about colleges using social media to vet prospective students.  According to the article, use of social media as an investigative tool is not widespread among college admissions officers but it is growing.  The article cites a recent survey conducted by Kaplan of 381 college admission officers in which 31% said they had visited an applicant’s social media site.  In light of the growing use of social media by colleges some high schools like Brookline High School in Massachusetts are instructing their juniors and seniors to delete alcohol-related posts or photographs and create socially acceptable email addresses.

Instagram and Witness Intimidation

Here is one more example of a criminal defendant using social media for criminal purposes. The story below, which recently ran in the Philadelphia Inquirer, discusses how one anonymous poster in Philadelphia used Instagram (photo-sharing social media platform) to identify and intimidate trial witnesses. 

Philly.com: ‘Rats215’ Instagram account deactivated

Philadelphia police and prosecutors are investigating an anonymous Instagram account with thousands of followers that for months has been identifying witnesses in violent crimes across the city – aiming, in its creator’s words, to “expose rats.”

The account, called rats215, has outed more than 30 witnesses since February, posting photos, police statements, and testimony on the photo-sharing website.

Because many of the statements posted aren’t public records, authorities are investigating the page as a potential act of mass witness intimidation – in a city where police and prosecutors struggle daily to find witnesses willing to testify…

The site, which had 7900 followers, was shut down once Instagram became aware of its illegal purpose.  Among other things, this site raises the question of whether new laws are needed to combat the use of social media by criminal defendants.


140 Characters or Less: An Experiment in Legal Research

Title: 140 Characters or Less: An Experiment in Legal Research

Author: Patrick M. Ellis

Abstract:     In 1995, Robert Ambrogi, former columnist for Legal Technology News, wrote about the Internet’s potential to revolutionize the accessibility and delivery of legal information. Almost 20 years later, Ambrogi now describes his initial optimism as a “pipe dream.” Perhaps one of the greatest problems facing the legal industry today is the sheer inaccessibility of legal information. Not only does this inaccessibility prevent millions of Americans from obtaining reliable legal information, but it also prevents many attorneys from adequately providing legal services to their clients. Whether locked behind government paywalls or corporate cash registers, legal information is simply not efficiently and affordably attainable through traditional means.

There may, however, be an answer. Although the legal industry appears to just be warming up to social media for marketing purposes, social media platforms, like Twitter, may have the untapped potential to help solve the accessibility problem. This Note attempts to prove that assertion by showing an iteration of social media’s potential alternative use, as an effective and free information sharing mechanism for legal professionals and the communities and clients they serve.

Generally speaking, law review editors and other academicians demand that authors support every claim with a citation, or, at the very least, require extensive research to support claims or theses. This Note seeks to fulfill this requirement, with a variation on conventional legal scholarship. Almost all of the sources in this Note were obtained via Twitter. Thus, this somewhat experimental piece should demonstrate social media’s potential as an emerging and legitimate source of legal information. By perceiving and using social media as something more than a marketing tool, lawyers, law schools, and, most importantly, clients, may be able to tap into a more diverse and more accessible well of information. This redistribution of information accessibility may not only solve some of the problems facing the legal industry, but also has the capability to improve society at large.