Andrew Tutt has an article up on SSRN about online speech entitled The New Speech, forthcoming in the Hastings Constitutional Law Quarterly. The abstract is below:
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.
In Matot v. CH, No. 6:13-cv-153 (D. Ore. 2013), the district court held that the creation of parody social media accounts does not violate the Computer Fraud and Abuse Act (CFAA).
Last year, the Ninth Circuit adopted a reading of the CFAA that does not allow for the law to be applied to the violation of a website's terms of service. United States v. Nosal, 676 F.3d 854 (9th Cir. 2012). A broad reading would allow such violations (for example, falsifying your age on a dating website) to be punishable under the CFAA through criminal and civil action. Some courts have adopted the broad reading (United States v. Rodriguez, 628 F.3d 1258 (11th Cir. 2010); United States v. John, 597 F.3d 263 (5th Cir. 2010); Int’l Airport Ctrs., LLC v. Citrin, 440 F.3d 418 (7th Cir. 2006).
In Matot, the plaintiff argued that the "defendants created false social media profiles in his name and likeness," violating the "without authorization" provision of the CFAA. The district court, however, found the argument to go against the Ninth Circuit's interpretation of the CFAA and the rule of lenity.
A federal court on Sept. 30th granted a motion to dismiss (in large part) a Georgia teen's lawsuit for multiple causes of action arising out of a Technology Instructor's use of a photo of her he obtained from her Facebook page; the photo was used in an "Internet Safety" class to illustrate that what you post online does not go away. The powerpoint the instructor used included the teen's name on a slide with her picture (the picture was of her in a bikini standing next to Snoop Dog (aka Snoop Lion)). The case is Chaney v. Fayette County Public School District, No. 13-CV-89-TCB (N.D. G.A. Sept. 30, 2013).
The powerpoint slides are below (I cropped out Chaney to prevent further reproduction) -
The court juxtaposed the instructor's intention with Chelsea Chaney's as follows:
The presentation was designed to illustrate the permanent nature of social media postings and how those postings could be embarrassing if published by third parties. Part of the presentation included a slide of a cartoon depicting a daughter approaching her mother about the mother’s Facebook page from years past, which listed the mother’s hobbies as “body art, bad boys, and jello shooters.” Chaney alleges that the obvious implication of this cartoon was the mother was humiliated by this Facebook posting, which according to Chaney labeled her as a “sexually-promiscuous, anti-establishment[] abuser of alcohol.”
Chaney alleged in the suit that the "unauthorized" use of her picture "violated her constitutional right to privacy under the Fourth and Fourteenth Amendments as well as several rights afforded her by state law." She sued the school district and the instructor in their official capacities - these were the claims dismissed by the Sept. 30th order above - and the instructor in his individual capacity (that claim has not been dismissed).
When bikini-clad Chelsea Chaney posed next to a cutout of Snoop Dogg during a family vacation, she had no idea that the photo would be shown to hundreds of strangers at a Fayette County Schools district seminar. An administrator used the photo to demonstrate the dangers of posting to social media.
The court found Chaney's Facebook setting allowing friends of her friends to see her pictures to constitute disclosure under the third-party doctrine, eliminating her reasonable expectation of privacy. The court, addressing the Fourth Amendment claim, stated:
Chaney contends that her privacy-setting choice of “friends and friends of friends” was “semi-private” and that her Facebook page was accessibly “only to those people she had specifically approved.” Thus, she contends that the District improperly searched her Facebook page and stole, i.e., illegally seized, her picture. However, Chaney fails to acknowledge the lack of privacy afforded her by her selected Facebook setting. While Chaney may select her Facebook friends, she cannot select her Facebook friends’ friends. By intentionally selecting the broadest privacy setting available to her at that time, Chaney made her page available to potentially hundreds, if not thousands, of people whom she did not know (i.e., the friends of her Facebook friends).
“The Supreme Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”
...
...Chaney surrendered any reasonable expectation of privacy when she posted a picture to her Facebook profile, which she chose to share with the broadest audience available to her. Thus, Chaney cannot show that society would be willing to recognize her expectation of privacy as legitimate.
The court also dismissed Chaney's argument that her outfit (bikini) and that she was a minor at the time had any bearing on the analysis.
The court then went on to the Fourteenth Amendment due process claim, noting that "zones of privacy" have been judicially recognized, but "[n]owhere in these protected areas may [appellant] find a constitutional right to be free from public embarrassment or damage to his reputation." The court pointed out that Chaney claims did not rise to a "constitutional magnitude" and instead "most appropriately arise under state tort law."
The court then proceeded to find the two defendants in their official capacity immune from suit, regardless, which would have defeated the claims without the preceding analysis.
Thus, the school district's (and the instructor's) Rule 12b(6) motion to dismiss was granted for all causes of action against them in their official capacities.
Side note: this was clearly a terrible judgment call on the instructor's part and by the school district (since it appears they OK'd it). That said, it's hard to argue the instructor didn't get his point across.
The following is an interview with the plaintiff Chelsea Chaney:
Update 1: A few things:
(1) I know it appears silly to crop out Chaney in the Powerpoint considering the image of her and Snoop Dogg (Snoop Lion) is the first thing that Google returns when you search for her name (and is included in the public filings for the case), but Venkat's write-up (see below) echoed my uneasiness about posting it ("With some reluctance, we're sharing a link to a page where you can find the photo.")
(2) I found it odd that Chaney's lawyer chose not to address the state tort claims in his brief in opposition to the motion to dismiss, even if sovereign immunity was a slam dunk
(3) Derek Black chose an interesting title for his write-up about the case on the Education Law Prof Blog: "Facebook Users Beware: The Principal Might Not Punish You, But He Can Ridicule You."(link below). A few thoughts on his use of the word "ridicule" (purely academic, not to criticize):
Can school district employees really "ridicule" you? The answer is not unequivocally yes because if the ridicule arises from a discretionary act, and the student can prove "actual malice," the claim would not be barred by the Georgia Tort Claims Act (or analogous statutes) providing immunity to schools/public officials/etc. (Black points this out at the bottom of his write-up). More importantly, though, is "ridicule" really what happened here? I don't see any evidence the use of the photo was to "mak[e] fun of someone or something in a cruel or harsh way." As I noted, there was an educational message tied to the use of the photo (admittedly, delivered in a ill-conceived way); the photo was not used to "ridicule" or opine on a non-pedagogical point (for example, to attack Chaney's choice of rapper, clothes, or lifestyle), and at least to me, that is a meaningful distinction. The take home message from the case is much more that Facebook users should worry about the impact their social media personas could have on their lives (i.e. striking the correct balance of privacy and communicative freedom in an interconnected and ever evolving technological age), and much less that they should beware of principals snooping for photos with which to "ridicule" them (a small, downstream derivative of the larger issue).
A Mississippi lawyer recently found his own Facebook post the subject of court deliberation after the state attorney general's office filed a Motion to Seal the court record. Havard v. Epps, NO. 5:08CV275KS (S.D. Miss. 2013).
The defense counsel appeared to be frustrated with the state as the parties filed motions related to a habeas corpus proceeding, posting on Facebook:
After responding to an asinine motion filed by the State, which not only wants to kill my client but doesn’t want to be bothered by actually responding to his claims of innocence, I am heartened by the following words penned by Kris Kristofferson. There are some similarities between prophetic songwriters and lawyers:
And you still can hear me singin’ to the people who don’t listen, To the things that I am sayin’, prayin’ someone’s gonna hear. And I guess I’ll die explaining how the things that they complain about, Are things they could be changin’, hopin’ someone’s gonna care. I was born a lonely singer, and I’m bound to die the same, But I’ve got to feed the hunger in my soul. And if I never have a nickle [sic] I won’t ever die ashamed. ‘Cause I don’t believe that no one wants to know.
Following the post, the state sought to have the records sealed, arguing:
Mr. Carner’s inability to maintain his professional integrity could compromise a case which is sensitive in nature. The victim in this case is a minor, a 6-month-old girl who was sexually battered before she was murdered. Mr. Carner has already demonstrated he is unable to refrain from speaking about this case to the public.
Judge Keith Starrett, however, felt that the request was not necessary.
Respondents' concern was apparently triggered by a Facebook post of one of Petitioner's counsel about the Motion for Clarification discussed above. In particular, counsel wrote, "After responding to an asinine motion filed by the State, which not only wants to kill my client but doesn't want to be bothered by actually responding to his claims of innocence, I am heartened by the following words penned by Kris Kristofferson." However ill-advised this post may have been, in terms of the standards of professionalism by which lawyers are encouraged to govern themselves, this statement does not give rise, in the Court's opinion, to a need to seal this record, for three reasons. First, there is no indication that the record of these proceedings in state court is unavailable to the public; second, the state court record was conventionally filed in this Court and is not available for electronic access; and, finally, information about this case is so widely available through Internet sources that closure of this record will not prevent dissemination of the details of the charges or the identification of the infant victim in this case. For these reasons, the Motion to Seal will also be denied.
According to the Hattiesburg American, a spokesperson for the AG's office acknowledged the ruling was correct and claimed they were preparing to withdraw the motion, but the judge ruled on it before they had the chance to do so.
Here are a few links to some good articles from around the Internet:
Find out how to delete all of your data on social networking sites in a one-stop website with this article on Wired.
The Economist discusses Silk Road which "allows dealers in drugs and other illegal products to meet online without leaving any trace of their identity." (Read more from Cybercrime Review on Silk Road here.)
If you haven't seen it yet, be sure to check out this trailer for Terms and Conditions May Applywhich "examines the cost of so-called 'free' services and the continuing disappearance of online privacy. People may think they know what they give up when they click 'I Agree' on companies like Facebook and Google. They're wrong."
In Smith v. State, No. 2012-KA-00218-COA, the Mississippi Court of Appeals addressed authentication and hearsay arguments regarding social networking messages in a case of first impression. The court ultimately found the messages to have been properly admitted.
The defendant was convicted of capital murder for the death of his stepdaughter, a seventeen-month old girl. At trial, the prosecution was allowed to use as evidence Facebook messages sent between the defendant and his wife.
On appeal, the defendant argued that the Facebook messages should not have been admitted because they were not properly authenticated and were hearsay. As to the issue of authentication, the court found the messages to be properly authenticated because the wife testified that the printouts were "Facebook messages between her and Smith."
On the hearsay issue, there were two types of messages before the court. One was an e-mail notification produced automatically by Facebook notifying the wife of a new message which contained the content of the message itself. The other was a printout of wall postings from the defendant on the wife's page. The court found that because the e-mail was "a fully automatic process, ... [it] may not be considered as hearsay." Comparing the case to one a federal court opinion, the court reasoned:
The court noted that when someone forwards an email, he or she has made an out-of-court assertion as to what someone else said. Id. There, however, a person forwarded the message. Thus, there was an assertion and a declarant. Here, an automatic process sent each message. As a result, in this case there was neither an assertion nor a declarant. The email notification, which contained the Facebook message, is not within the definition of hearsay.
The court then found that the defendant's statements were admissions by a party-opponent and therefore not hearsay. The wife's statement "could be hearsay" and no exception was offered by the state, but the error was considered harmless.
In a recent divorce case, the Georgia Court of Appeals ruled that it was okay for the trial court to order the parties to not talk disparagingly about either other on Facebook - at least until after the divorce proceedings. The husband appealed the order, arguing that it violated his First Amendment rights.
The trial court had issued an order that "restrained and enjoined [the parties] from posting matters about each other or their current litigation on Facebook or other social networking sites."
On appeal, the Court of Appeals acknowledged that the state Supreme Court allowed orders "to refrain from making derogatory remarks about the other before the children" and also for parties "telephoning the other's workplace or communicating with each other." Both parents had used social media to make "derogatory and disparaging comments about each other" prior to the order, and the appellate court decided the order was appropriate.
The case is Lacy v. Lacy, No. A12A2261 (Ga. Ct. App. 2013).
If you're looking to nominate someone for mother of the year, this is not the case to look at. In Aaron B.D. v. Jennifer D. (In re K.B.D.), 2012 Ill. App. 121558 (Dec. 14, 2012), a trial court's verdict awarding the biological father of a young child custody over his biological mother was upheld, due in part to her postings on Myspace, Facebook, and Twitter. While it isn't unusual for a court to look at online evidence in custody proceedings, this case appeared to focus quite heavily on the online activities of the mother and I thought the trial court's take on her activities (and the posting themselves) were quite interesting.
Importantly, the mother Vicki had made a large amount of her postings with references to the child's name, which in turn allowed anyone on the internet to search for the child's name and find inappropriate things the mother had posted. The court:
The court read extensively from Vicki's Internet posts on blogs, Myspace, and Facebook, which the court found were important in making its decision. The court noted that Vicki was an exotic dancer, which was not illegal, but found that her photographs on the Internet were "disturbing," because they depicted "[Vicki's] interest in bondage. Photographs with her hanging from chains with her wrist cuffed. Pictures skimpily dressed; pictures with her hand at her genitals, very, very suggestive photographs. All of these were found on the Internet by the GAL, all by Googling [the child's] name. This is particularly disturbing."
Vicki's argument on appeal was that there was insufficient evidence to show depravity and that the online postings were not enough to take her child away and allow adoption by the biological father and his girlfriend. The court disagreed. (As a side note, there was also evidence that Vicki failed to keep in contact with the child, had mental health issues, and had acted in an irresponsible or odd manner on an untold number of occasions). Examples of Vicki's online activities (from the father's testimony):
Aaron also testified that he had visited Vicki's blog and testified about several entries. ...Vicki had told the child that elves were fictional, which Aaron confirmed that she had done; the blog also discussed Vicki's complaints about Santa, elves, the Easter Bunny, and Snow White. . . .
Another blog entry was dated May 19, 2009, and was entitled "conception." Aaron testified that the entry contained a large amount of false information about him, including that Vicki told him that she did not wish to have sex with him and that he did so anyway, pinning her down and covering her mouth. . . .
Aaron then testified about Vicki's postings on Facebook. He testified that she created a public profile in the child's name, which included negative comments about Aaron and links to articles about him, and included photos and video of the child.
And from the girlfriends testimony:
Jennifer testified that while they were parenting the child, she searched for the child's name on Google as a precautionary measure. She discovered photographs of Vicki in compromising and provocative positions and "ongoing rants" that Jennifer knew were fabricated. Jennifer further testified that in investigating. . . . Jennifer testified that Vicki posted information about getting her hair done, eating out, and traveling at the same time that she was not paying any child support.
In the trial court ruling, the court stated:
"The thought that a child could go on online and see what is on these blogs on the Internet is just incomprehensible to me. The thought that his friends could see any of these things. There was one entry which I think I neglected to read that indicated that [Vicki] said she had thought she wouldn't tell [the child] about the rape until he was older, indicating that, perhaps, she had told him about the rape. I certainly hope that's not the case. Given the lack of credibility, I don't believe that it was a rape. I believe it was consensual sex, and I believe that the behavior exhibited throughout the ensuing years has shown a lack of ability to conform to a moral standard[] which is acceptable and, thus, that [Vicki] reaches the definition of depravity."
The appellate court agreed, stating that while "[w]e agree that Vicki's behavior is not on the same scale as murder or predatory criminal sexual assault, both of which result in a presumption of depravity. . . . the commission of these types of crimes is not required in order for a person to be considered depraved." Thus, the great weight of her internet activity, and the ability of the trial court to observe her demeanor during trial was sufficient to uphold the adoption/termination of parental rights.
In an order, found here: Reid v. Ingerman Smith, LLP (E.D.N.Y Dec. 27, 2012), Magistrate Judge Marilyn D. Go granted (and denied in part) a motion to compel discovery of plaintiff Reid's social media usage. The case itself revolves around a sexual harassment claim brought by Reid against Ingerman Smith for an incident while Reid was employed as a legal secretary. More details regarding the case can be found here (in an order to deny in part and grant in part a motion to dismiss the case, authored by Judge Glasser).
Judge Go agreed with the defendants that Reid's Facebook postings and comments on photographs placed on Facebook were relevant to whether Reid had actually experienced the emotional distress she claimed resulted from the sexual harassment. The court reviewed how other jurisdictions had dealt with similar questions, after observing that: "[a]lthough the law regarding the scope of discovery of electronically stored information ("ESI") is still unsettled, there is no dispute that social media information may be a source of relevant information that is discoverable." The ultimate issue, then, as summarized by the court:
The defendants argue that since postings and photographs from the public portions of plaintiff's Facebook account contain information that contradict plaintiff's claims of mental anguish resulting from the alleged sexual harassment by defendant Sadowski and termination of her employment, the non-public portions may also provide relevant information. Plaintiff responds that she should not be subject to broad discovery of the entirety of her social media account and be required to disclose private information.
I think any court facing this dilemma is trying to do two things: (1) facilitate discovery of information that is no doubt relevant to the claims in the case, but more importantly, (2) attempting to prevent further emotional damage to the plaintiff, whose privacy was already violated once by the sexual harassment, by limiting the reach of the prying inquiry requested by the defendant. I'm not necessarily convinced Judge Go achieved the second goal adequately. At least in the order, she exempted trivial personal information and photographs from birthdays, but did not really delineate what should be excepted. She offered stipulations at the end regarding discovery, but it remains to be seen if the scope will be as limited as she imagined with such a dearth of adequate guidance by the court.
The court summed up its thoughts as follows:
While plaintiff is correct that disclosure of her personal social media account may raise privacy concerns, such a consideration is more "germane to the question of whether requested discovery is burdensome or oppressive and whether it has been sought for a proper purpose" rather than to affording a "basis for shielding those communications from discovery." E.E.O.C. v. Simply Storage Mgmt., 270 F.R.D. 430, 434 (S.D. Ind. 2010).
Even had plaintiff used privacy settings that allowed only her "friends" on Facebook to see postings, she "had no justifiable expectation that h[er] 'friends' would keep h[er] profile private . . ." U.S. v. Meregildo, 2012 U.S. Dist. LEXIS 115085, 2012 WL 3264501, at *2 (S.D.N.Y. 2012). In fact, "the wider h[er] circle of 'friends,' the more likely [her] posts would be viewed by someone [s]he never expected to see them." Id. Thus, as the Second Circuit has recognized, legitimate expectations of privacy may be lower in e-mails or other Internet transmissions. U.S. v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004) (contrasting privacy expectation of e-mail with greater expectation of privacy of materials located on a person's computer). (emphasis added)
While many courts have stated that Internet communications are less protected, I'm not convinced that you can fully analogize a Facebook posting to an email. Here's why: An email has no built in protection to prevent forwarding to third parties; Facebook does - you personally limit who can see what on your page, and that effort in and of itself shows a subjective intent to retain an expectation of privacy in those posts. It is not a difference in kind, and I would never argue it was, but the continual need to analogize differing internet communications to email to appeal to more settled court precedent is troublesome.
I'd like to reiterate that I am not arguing the information requested isn't germane to the case, indeed, it is likely so. But, sweeping under the rug the difference between Facebook and other electronic communications does a disservice to users of these sites. It also erodes the ability of an individual to protect their own privacy interests through use of privacy mechanisms employed by electronic services such as Facebook; what's the purpose of such mechanisms, if all communications on Facebook are essentially, if not explicitly, lumped together?
My favorite part of this ruling follows:
statements regarding plaintiff's social activities may be relevant to plaintiff's claims of emotional distress and loss of enjoyment of life. The postings may also provide information regarding potential witnesses with knowledge. Thus, plaintiff must disclose social media communications and photographs "that reveal, refer, or relate to any emotion, feeling, or mental state . . . [and] that reveal, refer, or relate to events that could reasonably expected to produce a significant emotion, feeling or mental state." Simply Storage, 270 F.R.D at 435-36; see also In re Air Crash, 2011 WL 6270189, at *6 (W.D.N.Y. 2011) (ordering disclosure of electronic communications, including social media materials, as they relate to decedent's domicile and claimants' loss of support claims). Likewise, photographs uploaded by plaintiff, as well as photographs uploaded by third parties depicting plaintiff are discoverable, while other photographs that have a more tenuous connection with the party are less likely to be relevant. Clearly, "pictures of the claimant . . . will generally be discoverable because the context of the picture and the claimant's appearance may reveal the claimant's emotional or mental status" while "a picture posted on a third party's profile in which a claimant is merely 'tagged' is less likely to be relevant." Simply Storage, 270 F.R.D. at 436.
Two comments: (1) "social media communications and photographs" that reveal or relate to "any emotion, feeling, or mental state" essentially comprises anything on Facebook. Short of a picture of a tree in a field, everything on Facebook has a "feeling" connotation. Even the picture of a tree just mentioned could show a "mental state" focused on "trees." Is that helpful? The court's words are just about as vague and unhelpful to what is within the scope of social media discovery as I have ever seen. (2) photographs uploaded by third parties depicting plaintiff are discoverable? Wow. What about if those photos contain locational EXIF data, or private information a third-party believed would remain within a small social sphere? Once again, I am not arguing this type of information may or may not be relevant, but some guidance by the court regarding third-party privacy should have been noted. I ardently ascribe to judicial precision and narrowness, but not when a few extra words would clarify an order which the court admits falls in an area of judicial and legal instability.
In R.S. v. Minnewaska Area Sch. Dist. No. 2149, 2012 U.S. Dist. LEXIS 126257 (D. Minn., Sept. 6, 2012), a federal district court refused to dismiss the case of a 12-year-old against a Minnesota school district for allegedly punishing her for statements made on her Facebook wall and forcing her to disclose her Facebook password to search through her profile. The case involves multiple causes of action, most of which survived the motion to dismiss, including the First and Fourth Amendment claims.
While the court only has one side of the story, currently, the facts are pretty favorable for the plaintiff as described. In quick summary, it does not appear that her comments meet the requirements of Tinker to regulate student speech, nor did the school have a compelling reason to search her Facebook account.
Addressing the Fourth Amendment claim, the court first noted the distinction between Facebook wall posts (which would receive less protection depending on the settings) and messages, and ultimately held that with respect to the student's messages and profile information:
Based on Plaintiffs' complaint, at least some of the information and messages accessed by the school officials were in R.S.'s exclusive possession, protected by her Facebook password. R.S. controlled those items until she involuntarily relinquished her password. As with a private letter, the content of R.S.'s electronic correspondence was available only to her and her correspondent. The Court concludes, based on established Fourth Amendment precedent, that R.S. had a reasonable expectation of privacy to her private Facebook information and messages.
The court went on to explicitly equate Facebook messages with email, stating that "[t]he Court agrees that one cannot distinguish a password-protected private Facebook message from other forms of private electronic correspondence."
Finally, the court detailed the contours of school searches - that reasonableness in that context is determined under a lower standard due to the school environment - balancing the students reasonable expectation of privacy against the "substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds."T.L.O.The court found nothing on the school's side of the scale to justify the search. The courts stated:
Based on the facts alleged in the complaint, the school officials had reason to believe that R.S. may have had a sex-related discussion with a classmate. Both R.S. and her classmate had already admitted as much to the school officials prior to the search. Plaintiffs contend that such an out-of-school discussion, even a "naughty" one, broke no law or school policies.
At this stage, based on the facts alleged in Plaintiffs' complaint, the Court cannot disagree. It is difficult for the Court to discern what, if any, legitimate interest the school officials had for perusing R.S.'s private communications. . . . the school officials had no reason to believe that the search would return evidence of illegal behavior or violations of school policy. At this stage, there is no discernible school interest against which to balance R.S.'s reasonable expectation of privacy.
I have to say, I am very interested to see the outcome of this case. I think the Fourth Amendment details are fascinating and I have paid close attention to First Amendment cases dealing with out-of-school speech so I'm hooked there, too.
Though it is not likely to be news to readers of this blog, a federal trial court in New York has ruled that the government obtaining access to a defendant's Facebook page through one of his Facebook friend's cooperation does not violate the Fourth Amendment. United States v. Meregildo, No. 11 Cr. 576 (S.D.N.Y. 2012).
The defendant sought to suppress evidence, arguing against the method the government used to collect evidence to support a determination of probable cause. The government had gotten one of his Facebook friends to give them access to his Facebook profile.
"When a social media user disseminates his postings and information to the public, they are not protected by the Fourth Amendment," held the court. "Where Facebook privacy settings allow viewership of postings by 'friends,' the Government may access them through a cooperating witness who is a 'friend' without violating the Fourth Amendment."
The case has gotten a bit of attention, including stories from NY Post, Gigoam, Gizmodo.
A recent Reuters article discusses what little is known of a Facebook attempt to identify sex predators on the social networking site. The program screens for inappropriate language and exchanges and flags certain conversations for review. Upon finding an inappropriate conversation, Facebook notifies law enforcement. The article details how other companies handle the issue and what other options exist.
Facebook has also modified their "report" option to help teens report cyberbullying. Users ages 13 and 14 can now click "This post is a problem," and according to CNN, a child will then
go through a series of casually worded questions to determine what kind of issue he's having and how serious it is. There's even a grid for ranking his emotions.
Once he finishes the questions, a list of suggested actions is generated based on how pressing his complaint is. If the boy is more annoyed than than fearful, he might choose to send a pre-written message to the other person saying that the post makes him uncomfortable. If he is afraid, he will be prompted to get help from a trusted friend or adult. There are links to catch anyone who may be feeling suicidal and direct them to professionals and Facebook's own suicide chat hotline.
A California juror recently posted to Facebook about the trial while it was in progress. Upon learning of the act, the juror was required to consent to the court's review in camera of his Facebook postings. He argued that the order violated the Stored Communications Act, but the Court of Appeals of California disagreed (Juror No. One v. The Sup. Court of Sacramento Cnty., No. C067309, (Cal. Ct. App. 2012)).
After trial, one of the jurors told the court that another had posted comments to Facebook about the evidence in the case. That juror had not seen the comments during the trial, but another juror had "liked" one of the posts. The juror-author admitted he posted during the trial, but said the content had nothing to do with evidence. One of the parties in the case attempted to subpoena the juror's Facebook records, but Facebook refused to disclose, citing the SCA. The court later ordered the juror to provide the postings himself.
On appeal, the court held:
Juror Number One has provided this court with nothing, either by way of the petition or the supporting documentation, as to the general nature or specific operations of Facebook. Without such facts, we are unable to determine whether or to what extent the SCA is applicable to the information at issue in this case. For example, we have no information as to the terms of any agreement between Facebook and Juror Number One that might provide for a waiver of privacy rights in exchange for free social networking services. Nor do we have any information about how widely Juror Number One's posts are available to the public.
But even assuming Juror Number One's Facebook postings are protected by the SCA, that protection applies only as to attempts by the court or real parties in interest to compel Facebook to disclose the requested information. Here, the compulsion is on Juror Number One, not Facebook.
The defendant also suggested that the order violated the Fourth and Fifth Amendments but did not actually present an argument or citation to support the theories.
A disagreement over a Facebook relationship status recently ended with gunshots being fired into the air outside a Georgia Waffle House. In February, a husband and wife unfriending someone on Facebook ended with that person's father shooting the couple.
As these events happen, they get a great deal of news coverage. The stories are somewhat unique as they involve a specific element that hasn't existed before. They seem to demonize social networking websites as the cause of such evil, but is that really fair? Relationships and friendships have always had highs and lows despite technology. The only thing different today is that those changes can be easily broadcast to hundreds or thousands of your closest friends.
The question is whether social networking is creating new issues. Would the couple mentioned above still be alive if the friendship had just faded without such a conclusive end? Is the nature of Facebook changing our emotions and reactions? Or would these same people have wound up feuding as a result of a telegram or letter sent by carrier pigeon? My fear is that social networking is making these types of interactions more common. What are your thoughts?
The Maryland General Assembly has approved a bill prohibiting employers from requesting or requiring any online account information for current of prospective employers. The bill (SB 443/HB 894) comes after a firestorm of criticism related to news that the Maryland Department of Corrections required job applicants to turn over that information for their Facebook accounts.
An amendment to the bill specifies that employees "may not download [sic] unauthorized employer proprietary information or financial data to an employee's personal website, an internet web site, a web-based account, or a similar account." Further, employers are not prohibited from investigating violations of this provision. This entire amendment strikes me as odd as it seems to deal with an entirely different issue - theft of intellectual property - and not personal privacy. It essentially allows employers to obtain account information for all employees' email accounts if they hear that some information has been stolen.
I added "sic" to the text of the amendment because they used the word "download" when they actually meant "upload." Files are uploaded to a website and downloaded from a website.
If the governor signs the bill, Maryland will be the first state to address the issue by statute.
California, Illinois, Massachusetts, Michigan, and Minnesota have pending bills to do the same.
Social media has been getting (or causing) a great deal of news coverage recently. Here are a few things going on:
A Maine high school football coach accidentally posted a nude photo of himself on Facebook. It only appeared for 10 minutes, but the three-time state championship coach and middle school teacher still had to resign.
Just when you thought it was dead, MySpace claims to be adding 40,000 new users each day. Part of the influx is attributed to the site's new music player and an integrated Facebook app.
After a Tennessee man and woman removed one of their Facebook friends, the ex-friend's father shot both of them in the head. A search of the father's home revealed approximately 80 handguns.
A North Carolina father has received nearly 25 million views for this video he posted on YouTube. His daughter complained about her parents on Facebook, and her father responded by getting trigger happy with her laptop. Reaction has been varied.
A new website, PrivacyScore, rates websites based on user privacy. Site profiles let you know, among other information, how long your data is retained by the company.
Pew Research has released a new study titled "Why most Facebook users get more than they give." It provides great insight into the average user's Facebook activity as well as what the report refers to as "power users." Other interesting factoids about the average user:
Has 245 friends and 156,569 friends of friends
Sends 9.5 private messages per month
Receives 4 and sends 4 friend requests per month
If you've ever wondered why people do what they do on Facebook, this 40-page report might provide some information.
For months, the Internet has been abuzz about Facebook's new Timeline feature. In addition to the redesigned profile, Facebook now gives you the ability to backdate posts - allowing you to add life events and tag them with an older date. As you can see at right (click for larger view), Facebook is asking for information about your relationships, children, pets, and more - even when you lost weight, had your first kiss, or moved into a new home.
I recently heard part of an NPR report concerning Timeline. The guest mentioned a great point: with the new information Facebook is looking to acquire, it makes it very easy to find answers to common password reset questions. As the Sixth Circuit decision was released yesterday (discussion here) concerning Sarah Palin's e-mail break in through the password reset feature, this is a great time to have the discussion.
This is part of what FB wants to know about your birth, but they also want the story and pictures.
Suppose a person uses the life event feature to add all of their pets. Now, the first pet question is compromised. Mother's maiden name? She's probably listed as a family member (and constantly posts on your status updates!). What city were you born? Facebook now wants that, too.
As Facebook collects more data, it could also lead to more sophisticated phishing scams. Many scams now are unsuccessful because of mass e-mailing, hoping to find a person that matches the criteria. This would allow scammers to better target people with information they know to be accurate.
Perhaps now is a time to develop better questions such as "Who were you with when you had your first drink?" Never mind, Facebook is actually asking that now, too (as well as the location, year, and your story of how it happened).
A federal magistrate has denied a motion to compel Facebook records in a slip and fall case. The plaintiff claimed back injuries, but the defendant suggests the plaintiff might be faking some of her injuries (they have a surveillance picture of her pushing a grocery cart). Tompkins v. Detroit Metro. Airport, 2012 U.S. Dist. LEXIS 5749 (E.D. Mich. 2012).
The court found that the Facebook data is not relevant because the plaintiff is not alleging that damages that prevent her from, for example, pushing a grocery cart. "If the Plaintiff's public Facebook page contained pictures of her playing golf or riding horseback, Defendant might have a stronger argument." Further, the judge noted that the defendant's request for the entire account was overly broad.
