The Kansas Board of Regents recently adopted a new social media policy for university employees in the state of Kansas. According to the policy, university employees may be terminated for “improper use” (a very broad and open-ended phrase) of social media. This policy was apparently in response to a tweet sent by one University of Kansas journalism professor who was subsequently suspended but not terminated for his use of social media. In response to the Washington Navy Yard shooting earlier this year, the professor tweeted the following: “The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.”
To access Kansas’ new social media policy go here.
To read an article about the policy go here.
Bradley Shear who was one of the first attorneys ever to specialize in social media recently suggested that maybe we should create a Digital Miranda Warning for social media. He offered this idea after the most recent social media slip up made by Justine Sacco who formerly worked for IAC. Here is what Ms. Sacco tweeted while on a plane bound for Africa.
By the time the plane landed in Africa some 12 hours later, Ms. Sacco had lost her job.
To read more about Shear’s proposal for a Digital Miranda Warning go here.
Here is a link to my interview that aired today on CSPAN2. In the interview, I discuss my new book Social Media in the Courtroom: A New Era for Criminal Justice. The book which is available here examines the different ways social media has impacted the criminal justice system to include looking at how it has influenced the behavior of crime victims, criminal defendants, law enforcement, jurors, attorneys and judges.
An appellate court in Missouri v. Polk has upheld the conviction of a child rapist despite the fact that the prosecutor handling the case was tweeting during the trial. Here is a sample of his tweets.
David Polk trial next week. DNA hit linked him to 1992 rape of 11 yr old girl. 20 yrs later, victim now same age as prosecutor. (Tweeted days before jury selection.)
Watching closing arguments in David Polk ‘cold case’ trial. He’s charged with raping 11 yr old girl 20 years ago.
I have respect for attys who defend child rapists. Our system of justice demands it, but I couldn’t do it. No way, no how. (Tweeted during trial.)
Jury now has David Polk case. I hope the victim gets justice, even though 20 years late.
Finally, justice. David Polk guilty of the 1992 rape of 11 yr old girl. DNA cold case. Brave victim now the same age as prosecutor. (Tweeted after the verdict.)
Aside from DNA, David Polk’s victim could identify him 20 years later. Couldn’t forget the face of the man who terrorized her. (Tweeted after the verdict.)
While the appellate court was bothered by the tweets it still upheld the guilty verdict. According to the court,
Polk [the defendant] has presented no evidence that the jury was aware of or influenced by Joyce’s Twitter comments. During voir dire, none of the potential jurors responded that he or she followed the prosecutor’s social media postings. Additionally, the trial court instructed the jury not to conduct any independent research, and to refrain from using social media such as Twitter or Facebook. Though we do foresee how comments like Joyce’s could taint a jury, we cannot conclude that the jury in this case was substantially swayed based on the mere potential for prejudice. Accordingly, even if the prosecutor’s public Twitter comments were improper, the trial court did not abuse its discretion in denying Polk’s motions to dismiss and to strike the jury panel.
The prosecutor in this case has subsequently stopped tweeting about her trials.
New law review article by Professor James Grimmelman
Abstract: Social software has a power problem. Actually, it has two. The first is technical. Unlike the rule of law, the rule of software is simple and brutal: whoever controls the software makes the rules. And if power corrupts, then automatic power corrupts automatically. Facebook can drop you down the memory hole; Paypal can garnish your pay. These sovereigns of software have absolute and dictatorial control over their domains.
Is it possible to create online spaces without technical power? It is not, because of social software’s second power problem. Behind technical power there is also social power. Whenever people come together through software, they must agree on which software they will use. That agreement vests technical power in whoever controls the software. Social software cannot be completely free of coercion — not without ceasing to be social, or ceasing to be software.
Rule-of-law values are worth defending in the age of software empires, but they cannot be fully embedded in the software itself. Any technical design can always be changed through an exercise of social power. Software can help by making this coercion more obvious, or by requiring more people to join together in it, but it alone cannot fully protect users. Whatever limits make social software humane, fair, and free will have to come from somewhere else — they will have to come from We the Users.
The topic of revenge porn has continued to gather headlines as of late. At least initially, most seem to believe that something should be done about those who post nude or lascivious photos of their former significant other online. However, there now appears to be a growing concern about not only the current laws in place that specifically target revenge porn (at present both CA and NJ have specific laws on revenge porn), but also the legislation that is being contemplated in state legislatures across the country. Here is the latest piece criticizing CA’s revenge porn law.
Here is an interesting bill in the Texas legislature that would allow service of process by social media. Specifically, HB 1989 states that if substitution of service is allowed then service by social media may be permitted if the following are met.
(1) the defendant maintains a social media page on that website;
(2) the profile on the social media page is the profile of the defendant;
(3) the defendant regularly accesses the social media page account; and
(4) the defendant could reasonably be expected to receive actual notice if the electronic communication were sent to the defendant’s account.
If this bill is passed then Texas will join Australia, New Zealand and the UK which also permit service by social media.