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Monthly Archives: April 2016

Amicus Curiae Brief in Ballot Selfie Case

Amicus Curiae Brief in Ballot Selfie Case

Here is an Amicus Curiae brief filed in Rideout v. Gardner, which involves a law passed by the State of New Hampshire to prevent ballot selfies.

In the Like of Duty: Jurors Facing Fines for Facebooking in the Court


RT: In the Like of Duty: Jurors Facing Fines for Facebooking in the Court

More Schools Tracking the Social Media Use of Students

More Schools Tracking the Social Media Use of Students

According to the article below, an increasing number of school districts are turning to outside companies, like SnapTrends, to monitor the social media activities of students.  These companies, through sophisticated software, comb the public social media posts of students looking for keywords that relate to cyberbullying, suicide threats or criminal activity.  Upon discovering something substantial, the company flags the post and alerts the school.

Washington Post: Schools are helping police spy on kids’ social media activity


Free Social Media Ethics CLE


Free Social Media Ethics CLE by PLI

Information on the CLE is provided below.

Social media has become a great tool to make connections, promote business and gather useful information. Risks to attorneys have increased dramatically with fines, censure and even disbarment because of the gray areas of ethics in the social media landscape. Download our comprehensive program Ethics in Social Media 2016 to learn more about privacy and security issues; Federal Financial Institutions Examination Council social media guidance; and recent opinions from the New York City Bar Association, the New York State Bar Association and the New York County Lawyers’ Association to help you steer clear of any ethical issues for you and your clients.

The Secret Rules of the Internet

Catherine Buni


Soraya Chemaly


The Secret Rules of the Internet

The Verge has a great story (The Secret Rules of the Internet) about how social media platforms regulate speech.  Here is an excerpt from the article.

Today, YouTube’s billion-plus users upload 400 hours of video every minute. Every hour, Instagram users generate 146 million “likes” and Twitter users send 21 million tweets. Last August, Mark Zuckerberg posted on Facebook that the site had passed “an important milestone: For the first time ever, one billion people used Facebook in a single day.”

The moderators of these platforms — perched uneasily at the intersection of corporate profits, social responsibility, and human rights — have a powerful impact on free speech, government dissent, the shaping of social norms, user safety, and the meaning of privacy. What flagged content should be removed? Who decides what stays and why? What constitutes newsworthiness? Threat? Harm? When should law enforcement be involved?

To continue reading go here.

Memorandum: Hearsay Exception for Electronic Communications of Recent Perception


Daniel Capra

Memorandum: Hearsay Exception for Electronic Communications of Recent Perception


At the Advisory Committee’s Symposium on Electronic Evidence, held in April 2014, Professor Jeffrey Bellin proposed an amendment to the Federal Rules of Evidence that would add two new hearsay exceptions: one to Rule 804(b), which is the category for hearsay exceptions applicable only when the declarant is unavailable to testify; the other to Rule 801(d)(1), for certain hearsay statements made by testifying witnesses. Both exceptions are intended to address the phenomenon of electronic communication by way of text message, tweet, Facebook post, etc. Professor Bellin contends that the existing hearsay exceptions, written before these kinds of electronic communications were contemplated, are an ill fit for them and will result in the exclusion of many important and reliable electronic communications.

To solve the perceived problem, Professor Bellin proposes a modified version of the hearsay exception for recent perceptions — an exception that the original Advisory Committee approved, but which was rejected by Congress. Professor Bellin contends that the proposal will allow most of the important and reliable tweets and texts to be admitted, while retaining sufficient reliability guarantees that will exclude the most suspect statements. And he contends that the proposal fits well within evidentiary doctrine because it derives from a hearsay exception that the Advisory Committee approved — an exception that, though rejected by Congress, has actually been adopted and applied in a handful of states.

Professor Bellin makes a detailed case for his proposal in an article published in the Minnesota Law Review. He follows up the proposal by responding to two critiques—one set forth by Paul Shechtman in his presentation at the Electronic Evidence Symposium, and the other made by Professor Colin Miller.

This Memo analyzes some arguments and issues that the Committee might wish to consider in determining whether to proceed with the proposal to add two hearsay exceptions to expand admissibility, primarily for electronic communications but also for other communications made after a recent perception. The goal for the Committee at this meeting is to determine whether it is interested in pursuing the proposal or some modification of it. If the Committee is interested, then a formal proposal will be prepared for the Spring 2015 meeting.

Part I of this Memo sets forth Professor Bellin’s proposal within the context of the Federal Rules hearsay exceptions. Part II assesses whether expansion of the existing exceptions might be necessary to cover reliable eHearsay. Part III raises some questions about the proposal to add a new exception to Rule 804(b). Part IV raises some questions about the proposal to add a new exception to Rule 801(d). This Memo is intended to raise questions for the Committee to consider about the proposal — arguments in favor of the proposal have been made effectively by Professor Bellin elsewhere.


Keeping Texas Prisoners Off of Social Media


Keeping Texas Prisoners Off of Social Media

Texas prison officials are taking increased steps to prevent prisoners in their custody from making posts to social media.  In a recent update to the prisoner handbook, prison officials have stated that prisoners are prohibited from using social media.  The changes read as follows:

Offenders are prohibited from maintaining active social media accounts for the purposes of soliciting, updating, or engaging others, through a third party or otherwise.

Prison officials believe that this language is necessary in order to get social media providers to more readily comply with take down requests.  According to one Texas prison official,

The rule is specific to active social media accounts such as Facebook, Twitter, Instagram, etc…Those companies have mechanisms in place that allow us to request that the pages be deactivated. Private Web pages don’t have a mechanism to request they be taken down and we cannot force them to comply.

Absent a smuggled phone, prisoners generally do not have access to the Internet.  However, prisoners relay messages to family members and other friends who subsequently post the information on social media.

h/tip Arstechnica