Running Head: SOCIAL NETWORKING
1
AMERICAN MILITARY UNIVERSITY
Charles Town, West Virginia
SOCIAL NETWORKING: GATHERING EVIDENCE FROM FACEBOOK, MYSPACE &
TWITTER
A thesis submitted in partial fulfillment of
the requirements for the degree of
MASTER OF ARTS
in
LEGAL STUDIES
by
Zovinar Mherian Sayegh
Department Approval Date:
The author hereby grants American Military University the right to display these contents for
educational purposes.
The author assumes total responsibility for meeting the requirements set by United States
Copyright Law for the inclusion of any materials that are not the author’s creation or in the
public domain.
SOCIAL NETWORKING
2
© Copyright 2011 by Zovinar Mherian Sayegh
All rights reserved.
SOCIAL NETWORKING
3
DEDICATION
I dedicate this thesis to my children, Moses, Jordan, Markos, Jacob and my niece Stephanie
Nicole Thompson. Without their motivation and support, the completion of this work would not
have been possible.
SOCIAL NETWORKING
4
ACKNOWLEDGEMENTS
I wish to thank my sister Irena Kageorgis for introducing me to American Military University’s
Master’s Program. I also wish to thank every instructor that I had with American Military
University. My experience as a graduate student has been educational and enjoyable.
SOCIAL NETWORKING
5
ABSTRACT OF THE THESIS
SOCIAL NETWORKING: GATHERING EVIDENCE FROM FACEBOOK, MYSPACE &
TWITTER
by
Zovinar Mherian Sayegh
American Military University, October 23, 2011
Charles Town, West Virginia
Professor Constance St. Germaine-Driscoll, Thesis Professor
The establishment and progression of our online community has been rapid and
unrelenting. With the development of new communication technologies, the sharing of
information is more difficult than ever to organize. Social media websites such as Myspace,
Facebook, Twitter, Google+, and YouTube, in which user submitted content is updated nearly
every second, are slowly becoming valuable sources for finding and gathering evidence related
to modern cases. As such, the current statutes governing the admissibility and relevance of
evidence, the Federal Rules of Evidence, must be amended respectively.
SOCIAL NETWORKING
6
TABLE OF CONTENTS
SECTION
PAGE
INTRODUCTION
8
FEDERAL RULES OF EVIDENCE
8
Article I-IV
9
Article V-XI
10
EVOLUTION OF FEDERAL RULES OF EVIDENCE
11
TECHNOLOGICAL REVOLUTION
11
SOCIAL NETWORKING WEBSITES
12
LITIGATION USING EVIDENCE FROM CYBERSPACE
13-15
CYBERBULLYING
United States
15-20
International
20-21
CIVIL CASES
Romano v. Steelcase
21-22
Ledbetter v. Wal-Mart
22-23
CRIMINAL CASES
United States v. Tank
23-24
People v. Clevenstine
24-25
People v. Hardaway
25-26
People v. Fernino
26-27
Criminal Libel
27-28
RECENT CASES
29-30
PRIVACY
30-31
Katz v. United States
31-32
SOCIAL NETWORKING
7
ADMISIBILITY OF EVIDENCE
Lorraine v. Markel American Insurance Co.
32-33
ANALYZING LORRAINE
33-36
THE SMOKING GUN
36-38
CONCLUSION
39-40
SOCIAL NETWORKING
8
INTRODUCTION
Over the past 10 years, society has become dependent on information collected from the
World Wide Web. With the introduction of social networking websites such as Myspace and
Facebook, the sharing of information between users has reached an all time high. In order for
the legal system in the United States to remain efficient and relevant, legal staff must regard
these websites as viable sources for evidence pertaining to modern cases.
With the onset of new technology, the Federal Rules of Evidence has evolved to include
social networking and media websites as a means of gathering pertinent evidence.
FEDERAL RULES OF EVIDENCE
In 1961, the Judicial Conference of the United States, under the direction of Chief Justice
Earl Warren, appointed a committee to research the practicability of a uniform code for use of
evidence in the United States’ court system. In 1970, after a preliminary draft was distributed
and returned, a revised draft was agreed upon by both the Advisory Committee and Judicial
Conference and circulated to members of the House for review. Concurrently, President Richard
Nixon and members of his cabinet were involved in a highly publicized scandal known as
Watergate. In order to appropriately investigate dealings with Watergate, the formal adoption of
the Federal Rules Evidence was postponed. In 1975, after much deliberation over detail, the
revised code was submitted to the House of Representatives, where it was voted into action and
endorsed by the President. 1
At present, the Federal Rules of Evidence consists of twelve articles:
1
Federal Rules of Evidence: The Legislative and Drafting History, 6 Tex. Tech. L. Rev. 773 (1974-1975).
SOCIAL NETWORKING
9
Article I involves the general provisions of the Federal Rules of Evidence including
scope, purpose and construction, rulings on evidence, preliminary questions, limited
admissibility, and remainder of or relating writings or recorded statements. 2
Article II involves judicial notice of adjudicative facts. 3
Article III involves presumptions in general civil actions and proceedings, and
applicability of state law in civil actions and proceedings. 4
Article IV involves relevancy of evidence and its limitations, including definition of
relevant evidence, relevant evidence generally admissible, irrelevant evidence inadmissible, and
exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time. Article III
also comprises character evidence not admissible to prove conduct, exceptions, and other crime,
methods of proving character, habit, routine practice, subsequent remedial measures,
compromise and offers to compromise, payment of medical and similar expenses, inadmissibility
of pleas, plea discussions, and related statements, and liability insurance. Rules 412 through 415
of Article III take account of sex offense cases, relevance of alleged victim’s past sexual
behavior or alleged sexual predisposition, evidence of similar crimes in sexual assault cases,
evidence of similar crimes in child molestation cases, and evidence of similar acts in civil cases
concerning sexual assault or child molestation. 5
2
FED. R. EVID. art. I (2010).
3
FED. R. EVID. art. II (2010).
4
FED. R. EVID. art. III (2010).
5
FED. R. EVID. art. V (2010).
SOCIAL NETWORKING
10
Article V involves the privileges shared within the attorney/client relationship. 6
Article VI six involves witnesses, taking account of competency, lack of personal
knowledge, oath or affirmation, interpreters, competency of judges and jurors as witnesses,
impeachment, evidence of character and conduct of witness, religious beliefs or opinions, mode
and order of interrogation and presentation, writing used to refresh memory, prior statements,
calling and interrogation of witnesses by court, and exclusion of witnesses in court. 7
Article VII comprises opinions and expert testimony. 8
Article VIII addresses the hearsay rule. 9
Article IX encompasses the authentication and identification of evidentiary documents. 10
Article X incorporates the contents of writings, recordings and photographs submitted as
evidence. 11
Article XI addresses miscellaneous rules such as the applicability of rules, amendments
made to the Rules of Evidence, and title for citation. 12
6
FED. R. EVID. art. IV (2010).
7
FED. R. EVID. art. VI (2010).
8
FED. R. EVID. art. VII (2010).
9
FED. R. EVID. art. VIII (2010).
10
FED. R. EVID. art. IX (2010).
11
FED. R. EVID. art. X (2010).
12
FED. R. EVID. art. XI (2010).
SOCIAL NETWORKING
11
EVOLUTION OF FEDERAL RULES OF EVIDENCE
While the existing Federal Rules of Evidence (F.R.E.) has substantiated our litigation
process for years, it has become perceptibly necessary for an additional standard to include
evidence gathered from a source entirely left out of the FRE, the World Wide Web.
Electronic informal discovery is very much in its infancy in terms of the claims
and litigation process. While there are some reported decisions on these topics
there is certainly no unified movement in the courts to address these types of
issues. Various bar groups and other court panels are looking into adopting model
rules, but as of yet, very few jurisdictions have addressed the subject. Therefore,
there is no one set of rules that defines the scope and use of this information. 13
TECHNOLOGICAL REVOLUTION
Use of the internet was popularized in the mid-nineties as it proved necessary for person
to person dialogue to be faster and more direct than telephone and mail communication. “The
Internet now affects nearly every facet of our daily lives. It connects individuals, facilitates
economic transactions, fosters the exchange of information, and serves as a vibrant commercial
marketplace. This technological revolution also has left its mark on the practice of law.” 14
13
Mathew R. Booker, Informal Discovery: Google, Facebook and Beyond, Heyl, Royster, Voelker & Allen,
available at http://www.heylroyster.com/_data/files/Seminar_2010/2010_CP_F_MRB.pdf (last visited August 9,
2011).
14
John S. Wilson, MySpace, Your Space, or Our Space? New Frontiers in Electronic Evidence, 86 Oreg. L. Rev.
1201, 1202 (2007-08) available at http://www.law.uoregon.edu/org/olr/archives/86/Wilson.pdf (last visited August
9, 2011).
SOCIAL NETWORKING
12
SOCIAL NETWORKING WEBSITES
In the last decade, the establishment of social networking websites such as Myspace,
Facebook, Google+ and Twitter has made the share of information accessible to an entire cyber
community. “Social networking sites are online networks of individuals linked through
personalized Internet web pages. These web sites typically allow users to customize their own
personal web pages (often known as “profiles”), post photographs or videos, add music, or write
a journal or blog that is published to the online world.” 15
In the last two years, Facebook and Twitter have ranked highest of social networking
websites for user traffic. Facebook has over 400 million active users, in which, 50 percent of
these users log on to Facebook daily. Thirty-five million Facebook users update their status
daily equaling more than 60 million updates per day. 16
Additionally, advances made to personal and business e-mail services have generated an
unremitting and open tunnel for information otherwise private, including information regarding
finances, relationships, employment, and the like. “The average employee sends twenty and
receives thirty emails per day, and over eighty percent of all corporate data is created and stored
electronically without ever being converted to paper.” 17
15
Id. at 1220.
16
Mathew R. Booker, Informal Discovery: Google, Facebook and Beyond, Heyl, Royster, Voelker & Allen,
available at http://www.heylroyster.com/_data/files/Seminar_2010/2010_CP_F_MRB.pdf (last visited August 9,
2011).
17
John S. Wilson, MySpace, Your Space, or Our Space? New Frontiers in Electronic Evidence, 86 Oreg. L. Rev.
1201, 1207 (2007-08) available at http://www.law.uoregon.edu/org/olr/archives/86/Wilson.pdf (last visited August
9, 2011).
SOCIAL NETWORKING
13
LITIGATION USING EVIDENCE FROM CYBERSPACE
Websites like Facebook and Myspace have already become a budding source of
information leading to the acquisition of jurisdiction and initiation of litigation in court
proceedings, providing law enforcement with evidence for arrest and search warrants, and
establishing a basis for indictments and convictions. In civil suits, courts have approved for
parties to serve summons through an online profile. These websites will eventually become an
integral part of serving warrants and complaints, discovery requests, evidence in all manner of
proceedings, and newly discovered evidence for post-conviction motions. In criminal cases of
the present and future, social media content might prove to be the ultimate source discovering
evidence. 18
Nationally, some of the country’s most notorious criminals and, violent gang members,
have joined social networking websites to communicate with their associates, leaving a trail of
incriminating evidence for law enforcement to follow. Recently, a number of gang members
have been taken into custody after posting pictures and videos of themselves via Facebook,
Twitter, and YouTube parading their gang affiliations, including tattoos, inscribed gang
necklaces, stolen money and firearms. In some cases, the cars, guns, and other stolen property
photographed have been identified by law enforcement as evidence in pertinent crimes. Greg
Antonsen, Deputy Inspector for the New York Police Department, made a statement: “[Gang
members] want to brag…Never underestimate their desire to show off. It works against them.”
In one case, a gang member was arrested for felony theft after posting on twitter details
regarding his upcoming birthday gathering including the date, time, and location. Antonsen said
18
Ken Strutin, Social Media and the Vanishing Points of Ethical and Constitutional Boundaries, 31 PACE L.REV.
228 (2011).
SOCIAL NETWORKING
14
about the arrest, “We had two detectives grab him up when he got out of the limo. He never got
to celebrate his birthday.” 19
Internationally, Facebook has already been integrated into court procedures. In Australia,
Facebook is currently a satisfactory means of delivering notifications regarding process serving,
complaints, and court orders. After unsuccessful attempts to serve a man with request for a
court-ordered paternity test, a Sydney woman’s attorney informed the Federal Magistrate if a
private Facebook message would be sufficient for serving the man, whose residence was in flux.
The court granted the order to serve the documents via Facebook and the documents were
delivered. 20
Attorneys and litigators have realized that social networking web sites can be utilized in
gathering of evidence, including popular websites such as Facebook and Myspace. Current court
proceedings in civil and criminal venues confirm that using evidence from Facebook and
Myspace may apply as relevant and admissible under Rule 401. 21
One such example is member participation in social media websites during times of
alleged personal injury, resulting in an adverse ruling at trial due to contradictory behavior. This
evidentiary support has demonstrated great significance in personal injury cases during which a
plaintiff is awarded hedonic damages, compensation granted for the loss of enjoyment of life.
19
FederalComputerWeek. Com, Agencies Use Social Media to Bust Gangs, available at
http://fcw.com/articles/2011/04/05/law-enforcement-agencies-usiing-social-media-to-bust-gangs.aspx (last visited
August 18, 2011).
20
Ken Strutin, Social Media and the Vanishing Points of Ethical and Constitutional Boundaries, 31 PACE L.REV.
228 (2011).
21
Daniel L. Brown and Aimee R. Kahn, The Smoking Gun in an Adversary’s Network, Law Technology News
(September 11, 2009) available at
http://www.law.com/jsp/lawtechnologynews/PubArticleFriendlyLTN.jsp?id=1202433691927&slreturn=1&hbxlogin
=1 (last visited August 9, 2011).
SOCIAL NETWORKING
15
“Those who advocate hedonics believe that life is inherently worth more than just the amount of
money an individual can earn.” 22
CYBERBULLYING
United States
Cyberbullying is harassment that occurs via the Internet, cell phones, or other electronic
devices. Communication technology is used to intentionally disturb others using text messages,
e-mails and comments sent through cyberspace. 23 Upon the arrival of social-networking
websites, an alarming number of cyberbullying incidents have occurred, leading to the formation
of preventative measures pending passage by congress including the Megan Meier
Cyberbullying Prevention Act.
Additionally, a large amount of attention had been paid to states working towards
developing and incorporating cyberbullying legislation within school districts, requiring that
technology use policies be updated to include cyberbullying in their definitions of prohibited
behavior. 24 The Megan Meier Cyberbullying Prevention Act proposes a) whoever transmits in
interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass,
or cause substantial emotional distress to a person, using electronic means to support severe,
22
USLegal.com, Hedonic Damages Law & Legal Definition, available at http://definitions.uslegal.com/h/hedonicdamages (last visited August 11, 2011).
23
USLegal.com, Cyberbullying Law & Legal Definition, available at http://definitions.uslegal.com/c/cyber-bullying
(last visited September 28, 2011).
24
Sameer Hinduja, PH.D. and Justin W. Patchin, PH.D., Cyberbullying Fact Sheet: A Brief Review of Relevant
Legal & Policy Issues, Cyberbullying Research Center, available at http://www.Cyberbullying.us (last visited
September 28, 2011).
SOCIAL NETWORKING
16
repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two
years or both. b) As used in this section, 1) the term ‘communication means the electronic
transmission, between or among points specified by the user, of information of the user’s
choosing, without change in the form or content of the information as sent and received; and 2)
the term ‘electronic means’ means any equipment dependent on electrical power to access an
information service, including e-mail, instant messaging, blogs, websites, telephones, and text
messages. 25
In the Nation’s first ever cyberbullying case, United States v. Lori Drew, No. 08-CR582
(C.D. Cal Nov 26, 2008), the defendant was indicted for violating the Federal Computer Fraud
and Abuse Act. Drew was charged with conspiracy, fraudulent use of the Internet and providing
false information to Myspace when creating “Josh’s” account. Megan Meier was described by
her mother as a vibrant, fun-loving young girl. Meier was a thirteen-year-old eighth grade
student at the Immaculate Conception School in Missouri. Meier had recently ended her
friendship with Drew’s young daughter Sarah, an elementary school classmate. After the two
friends parted ways, Drew created a false profile, claiming to be a sixteen-year-old boy named
Josh Evans in order to investigate what Megan was saying about her daughter. “Josh” began
sending messages to Megan sparking romantic interest. “Josh” and Megan began a six-week
relationship after which “Josh” unexpectedly turned on Megan. “He” began sending unkind
messages claiming Megan was cruel and that he had no interest in continuing their friendship.
Myspace posts on “Josh’s” profile read, “Megan Meier is a slut,” and “Megan Meier is Fat,” and
25
The Library of Congress, H.R. Megan Meier Cyberbullying Prevention Act, available at http://thomas.loc.gov/cgibin/query/z?c111:H.R.1966: (last visited September 28, 2011).
SOCIAL NETWORKING
17
messages sent to Megan included statements like, “the world would be a better place without you
in it.” The last correspondence from Megan to Josh stated, “You are the kind of boy a girl would
kill herself over.” Megan hung herself with a belt in her bedroom closet the next day. The false
profile was discovered six-weeks after Megan’s death, but Drew could not be criminally
prosecuted for the creation of the profile even after Megan’s hometown passed a state law
making cyberbullying a crime two years later. Because the law was not an ex post facto law, it
did not apply retroactively to the case of Megan Meier. In May of 2008, Drew was finally
indicted on four counts by a Grand Jury in Los Angeles, CA. Drew was charged with one count
of conspiracy and three counts of violation of computer fraud use through the breach of
MySpace’s terms of service. Drew was found guilty for conspiracy, but was anonymously found
not guilty on the last three counts. Six months later, Drew filed an acquittal for her conviction
under Title 18 USC Section 1030 (a) (2) (C). In order for Drew to be convicted under this title,
the computer accessed must be involved in an interstate or foreign communication and Drew
must have intentionally accessed the computer without authorization. The judge presiding
refused to set precedent with Drew’s case, thereby acquitting her in the cyberbullying case,
reasoning that if Drew was convicted, any Internet user violating the terms of agreement of a
website could suddenly face criminal charges. The United States Government appealed the
dismissal of the criminal charges, however in November 2009 withdrew the appeal, ending the
case. 26
Another high-profile tragedy resulting from cyberbullying is the story of Rachel Neblett.
Rachel was a seventeen-year-old high school student in Kentucky. She participated in
cheerleading and was an exceptional gymnast. In the summer of 2006, Rachel began receiving
26
Judge Tom Jacobs, Teen Cyberbullying Investigated 157-61 (2010).
SOCIAL NETWORKING
18
threatening E-mails through her Myspace account. Rachel believed the E-mails were sent from a
fellow student with knowledge of Rachel’s school schedule. She told her sisters and friends
about the E-mails. Her parents caught wind and notified the school principal at Bullitt High
School; Rachel’s teachers were also notified and agreed to keep an eye on her. In September of
2006, Rachel received a messaged that read, “Meet me out front of school…and we’ll settle it
there and honey, you’re not going to the hospital. I’m going to put you in the morgue.” Rachel
was terrified for her life and withdrew from all social activities, remaining at home except to
attend classes. Three weeks after Rachel received the threatening message, she shot herself in
the chest in her parent’s bedroom. Police never identified Rachel’s cyberbully. Following
Rachel’s death, her close friend committed suicide. 27
The Internet is littered with websites memorializing the fallen victims of cyberbullying.
One of the most touching memorial sites is dedicated to Ryan Patrick Hallogan, a thirteen-yearold boy from Vermont who committed suicide after being bullied, both in person and online.
Ryan was a creative student who loved acting and comedy. In the seventh grade, Ryan was
confronted by a bully and engaged in a fight. The bully then became his friend for a short while
until he turned on Ryan, spreading rumors online that Ryan was gay. The summer following,
Ryan developed an interest in a female classmate and the two began texting each other, however,
the girl admitted to Ryan at school she was only pretending to like him, calling him a “loser.”
Shortly after, Ryan hung himself in his bathroom. 28
27
Judge Tom Jacobs, Teen Cyberbullying Investigated 163 (2010).
28
Judge Tom Jacobs, Teen Cyberbullying Investigated 166 (2010).
SOCIAL NETWORKING
19
Tyler Clementi, an eighteen-year-old Rutgers University freshman, threw himself off the
George Washington Bridge after a video of him having sexual relations with another man was
live-streamed through the media website Skype to fellow students. Cameras were placed in his
room without his knowledge by his roommate and a student in his corridor and the video was
broadcasted to one-hundred-and-fifty followers on Twitter. On September 22nd, 2010, Tyler
wrote a note on his Facebook page that read, “Jumping off the GW Bridge, sorry.” Dahrun Ravi
and Molly Wei were charged with two counts each of Invasion of Privacy. Additionally, Ravi
was charged with two more counts of Invasion of Privacy for streaming the video again the
following day. Collecting or viewing sexual images without consent is a fourth degree crime;
transmitting sexual images without consent is a third degree crime. 29
In 2009, Phoebe Prince moved from Ireland to Massachusetts with her family and entered
the South Hadley High School. Phoebe became involved in a brief relationship Sean Mulveyhill.
Mulveyhill’s former girlfriend, Kayla Narey, along with her friends, began harassing Phoebe in
person and online. Narey and her friends posted slanderous comments on Facebook, Twitter,
Craigslist, and Formspring, comments that read, “Irish Slut” and “whore.” Eventually, the group
of students bullying Phoebe grew to include even her former boyfriend, Sean Mulveyhill. Books
were regularly knocked from her hands, items were thrown at her, and her face was scratched out
of pictures on the school walls. Phoebe wrote in a text message, “I think Sean condoning this is
one of the final nails in my coffin.” Nine of Phoebe’s classmates were indicted for driving her to
suicide. Six of the nine students are facing charges of criminal harassment, stalking and
statutory rape. Ashley Longe, Sharon Chanon Velazquez, and Flannery Mullins were charged
29
CBSNews.com Tyler Clementi, Taped Having Sex, Kills Self, available at
http://www.cbsnews.com/stories/2010/09/30/national/main6913514.shtml (last visited September 29, 2011).
SOCIAL NETWORKING
20
with civil rights violations and criminal harassment as youth offenders. Sean Mulveyhill was
charged with statutory rape, civil rights violations resulting in bodily injury, criminal harassment,
and disturbing a school assembly. Kayla Narey was charged with civil right violations resulting
in bodily injury, criminal harassment, and disturbing a school assembly. Austin Renaud was
charged with statutory rape. 30
International
In 2008, twenty-seven countries in the European Union agreed to spend seventy million
dollars to make the Internet a safer place for children and teens. The agreement requires
websites including Myspace, Facebook, Bebo, Yahoo! Europe, Skyrock, and Youtube to set
profiles for users under the age of eighteen to be private and untraceable through search engines
or other websites. Additionally, these websites are required to include a one-click button for
reporting abuse or unwanted contact. 31
On August 21st, 2009, eighteen-year-old Keeley Houghton of Malvern, Worcestershire,
England was the first person to be jailed for cyberbullying in the UK after she posted death
threats on her Facebook profile towards a fellow classmate, Emily Moore. It was revealed to the
court that Houghton had been verbally and physically bullying Moore since the pair were
fourteen. District Judge Bruce Morgan stated in court, “Since Emily Moore was 14 you have
waged compelling threats and violent abuse towards her. Bullies are by their nature cowards, in
school and society. The evil, odious effects of being bullied stay with you for life. On this day
30
Pete Kotz, Phoebe Prince Suicide: Nine Teens Charged with Bullying 15-year-old to Death, True Crime Report,
available at http://www.truecrimereport.com/2010/03/phoebe_prince_suicide_nine_tee.php (last visited September
30, 2011).
31
Judge Tom Jacobs, Teen Cyberbullying Investigated 21 (2010).
SOCIAL NETWORKING
21
you did an act of gratuitous nastiness to satisfy your own twisted nature.” Two days after the
threat was made, Houghton approached Moore and her boyfriend in a public place. When
Moore said she’d be calling the police, Houghton retorted, “I’ll give you something to ring the
police about.” Houghton had two previous convictions for activity relating to her vendetta
against Moore. She was sentenced with three months in a young offender’s facility. 32
Cyberbullying has not only affected adolescents, but has come full circle, claiming adult
victims as well. In October 2008, thirty-nine-year old veteran actress Chai Jin-Sil of South
Korea hung herself in her shower with rope made of medical bandages. She had been verbally
attacked by thousands of chat room users questioning her morals and character. Jin-Sil was
accused of being a loan shark after advancing two million dollars to a fellow actor, Ahn Jae
Hwan who was unable to return the money, allegedly causing his suicide. Since, South Korean
government has passed a law requiring web users to reveal their true identity and governmental
issued I.D. number when posting to social networking websites. 33
CIVIL CASES
In Romano v. Steelcase Inc., 2010 N.Y. Slip. Op. 20388, 2010 N.Y. Misc. Lexis 4538
(N.Y. Sup. Ct., Suffolk Cty. Sept. 21, 2010), in which the plaintiff, Kathleen Romano, was
injured after allegedly falling out of her office chair. She filed suit against both the manufacturer
and distributor of the chair, claiming she could no longer participate in certain activities and that
these injuries had confined Romano to her home, thereby affecting her enjoyment of life.
Conversely, information collected from Romano’s personal Facebook and Myspace web profiles
32
Judge Tom Jacobs, Teen Cyberbullying Investigated 105-106 (2010).
33
Judge Tom Jacobs, Teen Cyberbullying Investigated 164-65 (2010).
SOCIAL NETWORKING
22
revealed that Romano led an active lifestyle, traveling to Florida and Pennsylvania during the
time she claimed to be injured, prohibiting such activity. The court ordered disclosure of the
information, finding that Romano’s privacy was outweighed by the need for the evidence.
The Romano court found, inter alia, that
…in light of the fact that the public portions of the plaintiff’s social networking
sites contained material that was contrary to her claims and deposition
testimony, there was a reasonable likelihood that the private portions of her sites
might contain further evidence such as information with regard to her activities
and enjoyment of life, all of which were material and relevant to the defense of
her personal injury action.
In response to the request by the plaintiff to uphold her right to privacy, the court stated
that in creating a Facebook and Myspace profile, Romano was aware of the fact that information
posted would be accessible by the public hence; she relinquished any reasonable expectation to
privacy. 34
In a similar case, Ledbetter v. Wal-Mart Stores, Inc., 2009 U.S. Dist. LEXIS 126859 (D.
Colo. Apr. 21, 2009), the plaintiff, Joel Ledbetter, an electrician, and his coworker Heath Powell,
sought action against the Wal-Mart Corporation after sustaining severe burns during an electrical
shortage that occurred while the two attempted to repair a store’s electrical system. Powell’s
spouse, Disa Powell, also brought a claim against the company for loss of consortium stating that
she could no longer have normal marital relations with her husband following the incident. The
34
Romano v. Steelcase Inc., 2010 N.Y. Slip. Op. 20388, 2010 N.Y. Misc. Lexis 4538 (N.Y. Sup. Ct., Suffolk Cty.
Sept. 21, 2010).
SOCIAL NETWORKING
23
defendant pursued information from several social networking websites through third party
subpoenas to refute claims made by the plaintiffs. The plaintiffs filed a motion of protective
order to prevent the social networking websites from releasing the requested confidential
information. The court denied the motion and granted the defendant’s subpoenas. The court
held, “the information sought by the subpoenas was reasonably calculated to lead to the
discovery of admissible evidence and was relevant to the issues in the case.” 35
While evidence found on these social media websites benefit the opposition, often it can
cause damage to a case for those seeking retribution in personal injury lawsuits. Carol L. Schlitt
cautions her clients to avoid using social media websites during a lawsuit in her article entitled,
Social Media and Your Personal Injury Lawsuit: How Facebook, Myspace, and Twitter Can
Affect Your Lawsuit. “An innocent posting such as an old family photo posted online can wind
up as evidence presented by the defense in a court case.” 36
CRIMINAL CASES
In criminal cases, the social networking arena has become an invaluable resource for
potential evidence.
In United States v. Tank, 200 F.3d 627 (9th Cir. 2000), the defendant was convicted of
conspiring to exploit, receive, and distribute sexually explicit images of children. The
government had gathered evidence at issue from Internet chat rooms pertinent to the case. The
35
36
Ledbetter v. Wal-Mart Stores, Inc., 2009 U.S. Dist. LEXIS 126859 (D. Colo. Apr. 21, 2009).
Carol L. Schlitt, Social Media and Your Personal Injury Lawsuit: How Facebook, MySpace and Twitter Can
Affect Your Lawsuit, available at http://nylawthoughts.com/2010/09/27/social-media-and-your-personal-injurylawsuit-how-facebook-my-space-and-twitter-can-affect-your-lawsuit/ (last visited August 11, 2011).
SOCIAL NETWORKING
24
court found that the “government made a prima facie showing of the authenticity” of chat room
log print-outs. In citing U.S. v. Catabran, 836 F. 2d 453 (9th Cir. 1988), “[a]ny question as to
the accuracy of the print-outs…would have affected only the weight of the print-outs, not their
admissibility.” Additionally, the court found that the government sufficiently linked the
defendant to the chat-room conversations and determined that the conversations held relevance
to the defendant’s charges. 37
In People v. Clevenstine, 891 N.Y.S.2d 511 (N.Y. App Div. 2009), after accidentally
accessing Richard Clevenstine’s Myspace profile including instant message conversations, the
defendant’s wife discovered sexually explicit communications between Clevenstine and two
teenage sisters. Clevenstine’s wife confronted the young victims and confirmed that sexual
activity had indeed occurred between both sisters and the defendant. A week following the
confrontation, Clevenstine’s wife notified the police of her husband’s doings which resulted in
an eleven count conviction, and ultimately Clevenstine was sentenced to 243 to 323 years in
prison.
Clevestine appealed two counts of rape in the second degree, three counts of rape in the
third degree, criminal sexual act in the third degree, attempted criminal sexual act in the third
degree, sexual abuse in the third degree, and three counts of endangering the welfare of the child,
challenging the electronically sourced evidence used against him, claiming it had not been
properly authenticated.
The court reasoned that the authentication of evidence was established so long as the
evidence had not been tampered with and was indeed genuine. The court found that, “both
37
Katherine Minotti, Evidence: The Advent of Digital Diaries: Implications of Social Networking Web Sites for the
Legal Profession, 60 S.C.L. Rev. 1057 (Summer 2009).
SOCIAL NETWORKING
25
victims testified that they had engaged in instant messaging about sexual activities [the]
defendant through the social networking site, Myspace. Additionally, a police officer testified
‘that he had reviewed [the] conversations from the hard drive of the computer used by the
victims.’ Further, a Myspace representative ‘explained that the messages…had been exchanged
by users of accounts created by [the] defendant and the victims, and [the] defendant’s wife
recalled the sexually explicit conversations she viewed in [the] defendant’s Myspace account.’”
The court held that the testimony provided sufficient authentication for the admission of the
evidence. 38
In People v. Hardaway, the defendant appealed his conviction for third-degree criminal
sexual conduct, claiming that the council was ineffective in addition to other issues. The core of
his appeal was that Hardaway’s attorney failed to preserve the contents of the victim’s social
networking profile, which held information possibly leading to the impeachment of her
testimony. The defendant claimed that the contents of the victim’s Myspace profile could have
established a pattern of the victim’s dishonesty, since it was published that the victim was
eighteen years of age and married. Further, the defendant argued that his council failed to
inquire about the disappearance of the victim’s Myspace page, and moreover, had the
defendant’s council done so, a Brady violation may have been established. 39 In 1963, the
Supreme Court ruled in Brady v. Maryland, 373 U. S. 83 (1963), that, “the suppression by the
prosecution of evidence favorable to an accused upon request violates due process where the
38
Edward M. Marisco, Jr., Social Networking Websites: Are MySpace & Facebook the Fingerprints of the TwentyFirst Century? 19 WIDENER L.J. 967 (2010).
39
Ken Strutin, Social Media and the Vanishing Points of Ethical and Constitutional Boundaries, 31 PACE L.REV.
228 (2011).
SOCIAL NETWORKING
26
evidence is material either to guilt or to punishment, irrespective of the good faith or the bad
faith of the prosecution.” 40
In People v. Fernino, 19 Misc. 3d, 851 N.Y.S.2d 339 (N.Y. City Crim. Ct. 2008), the
defendant, Melissa Fernino violated court orders of protection after making friend requests via
MySpace to Sandra Delgrosso and her two minor daughters. Fernino’s father was involved in a
relationship with Delgrosso and Delgrosso had placed a protective order against the Ferninos in
family court after the two ended their relationship. Delgrosso reported the request to authorities
and Fernino was charged with three counts of second-degree criminal contempt for allegedly
violating the protection orders. The defendant claimed that regardless of whether or not the
allegations in the complaint were true, she could not have been convicted of the charges made
against her. In his four-page decision, Judge Sciarriano stated,
If a person establishes an account from Myspace, she may receive and send
messages from the Mail Center Friend Request Manager and upon receiving such
a message, the recipient could choose to do nothing, indicate that she approves of
communication with the potential friend and create an opportunity for further
communication by choosing approve, signal that she does not want immediate
communication by choosing deny, or block immediate and future communications
with the potential friend by choosing spam.
The court held that the use of MySpace to contact the victim was indeed in violation of
the protection order granted in family court, because the friend’s request was still an attempt to
40
Elizabeth Napier Dewar, A Fair Trial Remedy for Brady Violations, 115 YALE L.J. 1450 (2006).
SOCIAL NETWORKING
27
contact despite it being electronically, and no contact was allowed by the order of protection.
Therefore, any contact made through social networking websites such as MySpace and Facebook
constitute a violation of restraining orders placed by any court. 41
The Judge reasoned his ruling by referencing the case of People v. Johnson, 208 A.D.2d
1051, 617 N.Y.S.2d 577 (3rd Dept.1994), in which the defendant indirectly contacted the victim
through offering a letter, which he signed with the victim’s name and mailed to a post office box
in response to a personal ad placed in a newspaper. Following the receipt of the letter, the victim
received further unsolicited communication from the person who originally placed the personal
advertisement. In Johnson, the court held that the defendant violated his probation by creating
the letter and fraudulently endorsing it, which resulted in an unsolicited communication to the
victim.
Criminal Libel
Currently, seventeen states enforce criminal libel statutes including Colorado, Florida,
Idaho, Kansas, Louisiana, Michigan, Minnesota, Montana, New Hampshire, New Mexico, North
Carolina, North Dakota, Oklahoma, Utah, Virginia, Washington, and Wisconsin. Libel law
states that charges can be brought against a person for defamation of character, even
electronically. Colorado libel law states, 1) a person who shall knowingly publish or
disseminate, either by written instrument, sign, pictures, or the like, any statement or object
tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue,
or reputation or expose the natural defects of one who is alive, and thereby to expose him to
41
Mark Fass, MySpace ‘Friend Request’ Could Violate Protection Order, Law.com, available at
http://www.law.com/jsp/article.jsp?id=1202904867035&slreturn=1 (last visited September 30, 2011).
SOCIAL NETWORKING
28
public hatred, contempt, or ridicule, commits criminal libel. 2) It shall be an affirmative defense
that the publication was true, except libels tending to blacken the memory of the dead and libels
tending to expose the natural defects of the living. 3) Criminal libel is a class six felony. 42
In 2008, J.P. Weichel allegedly posted comments about his former girlfriend on the
Craigslist “Rant and Raves” forum, making crude comments about her sexual relations and
alleging that she was guilty of welfare fraud and child abuse. According to an old Colorado state
statute, a person can be charged criminally against libel. Weichsel’s former girlfriend made a
complaint to the Fort Collins’ police department. The Larimer County District Attorney, Larry
Abrahamson, filed two criminal libel charges against Weichel on October 21st. Colorado State’s
libel law carries a maximum sentence of eighteen months in jail. Several attorneys weighed in
on the case, stating that the government’s involvement was a troubling infringement on free
speech and the case would be more appropriate for civil court. A professor at Georgia State
University, Gregory Lisby, specializing in criminal libel prosecutions stated that, “Criminal libel
prosecutions are a sledgehammer when a scalpel would do the same trick.” On May 14th, 2009,
Weichel pled guilty to two counts of harassment, paid a five-hundred dollar fine, was assigned
sixty hours of community service and was put under probation for four years. 43
42
Donald Burleson, 17 States Have Criminal Libel Laws for the Web Defamation, available at http://www.dbaoracle.com/oracle_news/news_states_criminal_libel_web_internet.htm (last visited September 30, 2011).
43
Nicholas Riccardi, Craigslist Rant by Ex-boyfriend Leads to Criminal Libel Charges: Colorado Statute Dates to
19th Century, Chicago Tribune, available at http://articles.chicagotribune.com/2008-12-14/news/0812130373_1_exboyfriend-craigslist-libel (last visited September 30, 2011).
SOCIAL NETWORKING
29
RECENT CASES
Yet another incident involving the social networking website, Facebook, went to court in
February of 2009. Gary Waters, accused of possessing a loaded weapon, was acquitted of the
gun charge after evidence collected from Officer Vaughan Etienne’s Facebook profile was used
for impeachment purposes. The defendant Waters was assaulted by Etienne and his partner and
suffered from three broken ribs. Additionally, the officers planted the loaded weapon on Waters
to cover their activity. After investigating Etienne’s Facebook profile, the defense council
discovered pertinent data including a “devious” mood update and a status post claiming the
officer had watched the movie “Training Day” to, “brush up on proper police procedure.” Both
pieces of information led to the dismissal of Water’s gun charge. 44
Recently, a more tremendous example of online evidentiary support is illustrated in the
case of Jason Valdez, a thirty-six year old male facing drug possession charges in Ogden, Utah.
On June 23, 2011 Valdez held a woman hostage during a sixteen-hour standoff with SWAT
officials. During the standoff, Valdez posed with his female hostage for a picture, later posted
on the website, Facebook with the caption, “Got a cute hostage, huh?” Law enforcement agents
are currently working to use this evidence to convict Valdez, who was in critical condition
shortly after the incident. 45
44
Ken Strutin, Social Media and the Vanishing Points of Ethical and Constitutional Boundaries, 31 PACE L.REV.
228 (2011).
45
Wil Longbottom, Facebook Kidnapper Poses With His Hostage in Picture Posted Online During 16-hour Standoff With SWAT Team, available at http://www.dailymail.co.uk/news/article-2006671/Utah-man-16-hour-standoffSWAT-team-time-update-friends-family-Facebook.html#ixzz1S1a6r7tp (last visited August 11, 2011).
SOCIAL NETWORKING
30
It seems people are so interconnected within the social networking web; it has become
impossible to find disconnect. In the most extreme cases, social networking websites have been
the key indicator in who might have committed a crime. Such is the case of Jonathan G. Parker,
a Loudoun, Pennsylvania man who was charged with one count of felony daytime burglary after
he failed to log off of his Facebook account on the victim’s home computer. On August 28th,
2009, Parker broke into a Pennsylvania home through a bedroom window and stole two diamond
rings valued at thirty-five hundred dollars. Before exiting the property, Parker checked his
Facebook page on the home computer, but forgot to log off his account. The victim later
discovered Parker’s Facebook account open on the desktop. She notified the county deputy
sheriff’s department. During the investigation, a friend of the victim revealed that he knew
where Parker resided and that Parker had approached him the night prior and asked if he wanted
to assist with the burglary. Parker faces ten years in prison if convicted. 46
PRIVACY ISSUES
How does social networking impact the right to privacy?
Author Susan Brenner in her book, 2002, examined three amendments, which protect an
individual’s right to privacy to determine whether communication in cyberspace invokes the law
that governs the right to privacy. The U.S. Constitution does not particularly guarantee an
individual’s right to privacy. However, the U.S. Supreme Court has interpreted the U.S.
Constitution to allow individuals a right to privacy, which has, in part, derived from various
constitutional guarantees, namely, as mentioned in the First, Fourth, and Fifth Amendments. The
46
Edward Marshal, Burglar Leaves His Facebook Page on Victim’s Computer, available at http://www.journalnews.net/page/content.detail/id/525232.html (last visited September 29, 2011).
SOCIAL NETWORKING
31
First Amendment protects the privacy of certain acts including the right to speak anonymously
and the right to preserve the confidentiality of one’s associations. The Fourth Amendment
prevents Government intrusion into matters, which are constitutionally considered “private”.
The Fifth Amendment offers limited protection against self-incrimination, except when properly
acquired evidence proves otherwise, and when a person waives their right to divulge their guilt
or information leading to their incrimination. 47
One of the earliest cases involving constitutionally protected privacy, Katz v. United
States, 389 U.S. 347, occurred in 1967. There the defendant, Katz, divulged information
regarding bets placed over several telephone calls to clients around the country. Federal agents
had used a wiretap outside of a public phone booth frequented by Katz to collect information
pertinent to their investigation. The evidence collected from the conversations between Katz and
his clients made possible for Katz to be indicted under eight counts of illegal transmission of
wagering information. Katz appealed the conviction disputing that the recordings could not be
used as evidence against him, because the Fourth Amendment of the Constitution protected him
against illegal search-and-seizure without a search warrant. The U.S. Supreme Court held that in
instances where a person participates in a conversation in a telephone booth behind a closed
door, there is an expectation of privacy, and therefore, he may rely upon the protection of the
Fourth Amendment.
Unlike the Katz case, modern cases involving communication on websites such as
Facebook and MySpace, where an individual knowingly shares information to the public, a
reasonable expectation of privacy cannot be guaranteed.
47
Susan W. Brenner, The Privacy Privilege: Law Enforcement, Technology, and the Constitution, 7 J. TECH. L. &
POL’Y 123 (2002).
SOCIAL NETWORKING
32
Moreover, in some social networking websites such as Facebook and Google+, users are
offered the option to privatize elements of their public profile. One can argue that if a user
chooses to privatize certain elements while allowing other elements of his or her profile to be
viewed by the general public, one nullifies the reasonable expectation of privacy protected by the
Fourth Amendment. Upon further examination it can be concluded that so long as evidence is
admissible and relevant, it can be allowed as legitimate evidence in trial regardless of where it
was sourced.
ADMISIBILITY OF EVIDENCE
How do courts test the admissibility of evidence encountered electronically, through
websites, e-mail and other digital sources?
In Lorraine v. Markel American Insurance Co., 241 F.R.D. 534 (D. Md. May 4, 2007),
the plaintiff filed an insurance dispute after Lorraine’s boat was struck by lightning. The
insurance company paid out for damages covered under the plaintiff’s policy, however, Lorraine
later discovered further damage had occurred to the ship’s hull and demanded an additional
$36,000 to fix the damages. The insurance company refused the additional demands and the
matter was pushed to arbitration. During arbitration, the sum of additional damages was
approved, but the amount was limited to under half the amount demanded, at $14,000. Both
parties involved filed motions for summary judgment, submitting evidence including e-mails
discussing the policy at greater length. The e-mails were not authenticated and thus lacked
admissibility of the evidence. Judge Grimm of the district court discussed how the evidence
could have been submitted to retain admissibility. Judge Grimm held that “website ESI
SOCIAL NETWORKING
33
(Electronically Stored Information), e-mail, web postings, digital photos, and computer
generated document are subject to the standard rules of admissibility.”
The court’s reasoning was that the test of admissibility for ESI should reflect the test used
for other types of evidence: (1) relevance; (2) authenticity; (3) exceptions to hearsay; (4) the
original writing rule; and (5) the probative value substantially outweighing the danger of unfair
prejudice. 48
ANALYZING LORRAINE
The presiding Judge, Grimm, penned a one-hundred-and-one page opinion following the
Lorraine trial in which he explained how to submit electronically stored information into
evidence while ensuring admissibility and relevancy. According to Grimm, when entering
electronically sourced evidence into trial, there exist many evidentiary barriers to overcome,
especially the Federal Rules of Evidence, reviewed below. 49
Rule 104 currently governs matters concerning preliminary questioning of admissibility.
“Preliminary questions concerning the qualification of a person to be a witness, the existence of a
privilege, or the admissibility of evidence shall be determined by the court, subject to the
provisions of sub-division B and in making its determination it is not bound by the rules of
48
Katherine Minotti, MySpace & My Liability, E-Discovery Connection, available at
http://www.imakenews.com/admirlaw/e_article001388969.cfm?x=bfst3C1,b9bmfcpV,w (last visited August 11,
2011).
49
LexisNexis.com, Lorraine v. Markel: Electronic Evidence 101, available at
http://www.lexisnexis.com/applieddiscovery/LawLibrary/whitePapers/ADI_WP_LorraineVMarkel.pdf
(last visited August 18, 2011).
SOCIAL NETWORKING
34
evidence except those with respect to privileges.” Furthermore, Rule 104 handles relevancy
conditioned on fact, hearing of jury, testimony by accused, and weight and credibility. 50
Rule 401 currently governs relevant evidence which is defined as “evidence having any
tendency to make the existence of any fact that is of consequence to the determination of the
action more probably or less probable than it would be without the evidence.” 51
Rule 402 currently governs matters concerning relevancy of evidence. “All relevant
evidence is admissible, except as otherwise provided by the Constitution of the United States, by
Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to
statutory authority. Evidence which is not relevant is not admissible.” 52
Rule 403 currently governs matters concerning exclusion of relevant evidence on grounds
of prejudice, confusion, or waste of time. “Although relevant, evidence may be excluded if its
probated value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” 53
Rule 901 currently governs matters concerning authentication of evidence. “The
requirement of authentication or identification as a condition precedent to admissibility is
50
FED. R. EVID. 104 (2010).
51
FED. R. EVID. 401 (2010).
52
FED. R. EVID. 402 (2010).
53
FED. R. EVID. 403 (2010).
SOCIAL NETWORKING
35
satisfied by evidence sufficient to support a finding that the matter in question is what its
proponent claims.” 54
Rule 902 currently governs matters concerning self-authentication, in which it illustrates
how authentication can be attained without extrinsic evidence. 55
Rule 807 currently governs the exception to hearsay. “A statement not specifically
covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness,
is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as
evidence of a material fact; (B) the statement is more probative on the point for which it is
offered than any other evidence which the proponent can procure through reasonable efforts; and
(C) the general purposes of these rules and the interests of justice will best be served by
admission of the statement into evidence. However, a statement may not be admitted under this
exception unless the proponent of it makes known to the adverse party sufficiently in advance of
the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the
proponent's intention to offer the statement and the particulars of it, including the name and
address of the declarant.” 56
Rule 1001 Section 3 governs the “original” writing rule. “An ‘original’ of a writing or
recording is the writing or recording itself or any counterpart intended to have the same effect by
a person executing or issuing it. An ‘original’ of a photograph includes the negative or any print
54
FED. R. EVID. 901 (2010).
55
FED. R. EVID. 902 (2010).
56
FED. R. EVID. 807 (2010).
SOCIAL NETWORKING
36
there from. If data are stored in a computer or similar device, any printout or other output
readable by sight, shown to reflect the data accurately, is an ‘original’.” 57
Rule 1003 governs the admissibility of duplicates. “A duplicate is admissible to the same
extent as an original unless 1) a genuine question is raised as to the authenticity of the original or
2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. 58
Clear of the Federal Rules of Evidence, some of the added barriers to presenting
electronic evidence in trial have been outlined in articles written by legal professionals as well as
court officials. The question of privacy and one’s ability to invoke his or her right to privacy has
become one of the most difficult pieces to place in the puzzle that is electronically obtained
evidence.
THE SMOKING GUN
Daniel L. Brown and Aimee R. Kahn wrote an article framing the issue at hand entitled,
“The Smoking Gun in an Adversary’s Network”. It was published on September 11, 2009 in
the New York Law Review. This article addresses a new conduit for attorneys and litigators in
gathering evidence found in social networking sites such as Facebook and MySpace. Evidence
collected from these sites may hold the smoking gun needed to serve legal process against the
opposition. Attorneys and litigators must use caution in their attempts to present evidence
collected from social networking sites, as well as examine the evidentiary and ethical
implications it might present. Brown introduces the questions of “whether there is a reasonable
expectation of privacy on a social networking site accessible to the public at large; and whether
57
FED. R. EVID. 1001 (3) (2010).
58
FED. R. EVID. 1003 (2010).
SOCIAL NETWORKING
37
there is a reasonable expectation of privacy on a social networking site that has been secured by
some form of privacy protection, the later creating greater concern.” According to the authors,
an attorney should disclose intention when accessing a member’s profile to gather evidence
pertinent to a case. Brown states, “social networking sites can potentially contain a plethora of
information useful for litigation, but attorneys must understand the ethical and evidentiary rules
associated with discovering such evidence.” A review of current court proceedings in civil and
criminal venues has confirmed that using evidence from Facebook and MySpace may apply as
relevant and admissible under Rule 401. 59
The website Facebook clearly identifies the scope of privacy as pertaining to information
stored on member’s profiles in their privacy settings page.
Everyone Information. Information set to ‘everyone’ is publicly available
information, just like your name, profile picture, and connections. Such
information may, for example, be accessed by everyone on the Internet (including
people not logged into Facebook), be indexed by third party search engines, and
be imported, exported, distributed, and redistributed by us and others without
privacy limitations. Such information may also be associated with you, including
your name and profile picture, even outside of Facebook, such as on public search
engines and when you visit other sites on the Internet. The default privacy setting
for certain types of information you post on Facebook is set to ‘everyone.’ You
can review and change the default settings in your privacy settings. If you delete
59
Daniel L. Brown & Aimee R. Kahn, The Smoking Gun in an Adversary’s Network, Law Technology News, 2009
available at
http://www.law.com/jsp/lawtechnologynews/PubArticleFriendlyLTN.jsp?id=1202433691927&slreturn=1&hbxlogin
=1 (last visited August 11, 2011).
SOCIAL NETWORKING
38
‘everyone’ content that you posted on Facebook, we will remove it from your
Facebook profile, but have no control over its use outside of Facebook.
In the criminal venue, Facebook identifies its policies on the share of information to law
enforcement and court officials in the “How We Share Information” section of their privacy
settings page.
To respond to legal requests and prevent harm. We may disclose information
pursuant to subpoenas, court orders, or other requests (including criminal and
civil matters) if we have a good faith belief that the response is required by law.
This may include respecting requests from jurisdictions outside of the United
States where we have a good faith belief that the response is required by law
under the local laws in that jurisdiction, apply to users from that jurisdiction, and
are consistent with generally accepted international standards. We may also share
information when we have a good faith belief it is necessary to prevent fraud or
other illegal activity, to prevent imminent bodily harm, or to protect ourselves and
you from people violating our Statement of Rights and Responsibilities. This may
include sharing information with other companies, lawyers, courts or other
government entities. 60
60
Facebook.com, Statement of Rights & Responsibilities, available at http://www.facebook.com/terms.php
(last visited August 18, 2011).
SOCIAL NETWORKING
39
CONCLUSION
The ultimate question is whether our legal system should allow the use of evidence
gathered from social networking and media websites.
Although initially the Federal Rules of Evidence were not intended for the cybernetic
age, we have found instances where they capably operate in conjunction with evidence found on
social networking websites. “All evidence is subject to procedural laws and rules from the
moment it is discovered until the moment it is entered into evidence at trial.” 61 By allowing
evidence gathered from social networking websites and e-mail to be relevant and admissible in
trial, do we find ourselves in breach of constitutional rights to privacy? “Modern privacy law
holds that a reasonable expectation of privacy in a communication medium is a condition
precedent to investing it with Fourth Amendment protection.” 62
Supreme Courts allows the discovery and presentation of relevant evidence in trial. Until
the uncertainties on how to handle evidence gathered online become unquestionably resolved,
the court must level the playing field for both the prosecution and defense. If it is permissible
for law enforcement to conduct undercover investigations using evidence on social media
websites, the same privilege should be granted to attorneys in court. With the benefits of online
information come the risk of spoliation of digital media and the inadmissibility of evidence.
The rapid communication these websites offer carry with a heavy price tag. “The cost of this
61
New Jersey Criminal Defense Lawyer, Text Messages, Facebook Photos, and Tweets as Criminal Evidence?
available at http://www.mynewjerseydefenselawyer.com/text-messages-facebook-photos-and-tweets-as-criminalevidence/#more-94 (last visited August 15, 2011).
62
John S. Wilson, MySpace, Your Space, or Our Space? New Frontiers in Electronic Evidence, 86 Oreg. L. Rev.
1201, 1233 (2007-08) available at http://www.law.uoregon.edu/org/olr/archives/86/Wilson.pdf (last visited August
9, 2011).
SOCIAL NETWORKING
40
freedom is qualified privacy, a cloverleaf intersection weaving electronic human activities with
the law, and the unveiling of new avenues of investigation.” 63 The most effective way to
incorporate this new evidence smoothly into our legal system is to construct a guideline, which
follows our constitutionally instated rights to privacy.
The progression of our nation's legal system should closely mirror our societal
advancement to provide efficiency in justice. The Internet has existed for more than ten years,
and yet, there remains a lack of credibility for evidence gathered from cyberspace. How long
can we continue to ignore the substantial influence of both the Internet and social media in our
lives and in our courtrooms?
63
Ken Strutin, Social Media and the Vanishing Points of Ethical and Constitutional Boundaries, 31 PACE L.REV.
228 (2011).