Archive - Social Media

Report: Jurors’ Misuse of Social Media Is a Real, but Addressable, Problem

February 9, 2012 in Social Media with 1 Comment

How serious of a problem is the use of social media by jurors?  Intense reporting by news outlets and commentators (including me) could give the impression that it is a widespread phenomenon plaguing every court in the nation, and threatening to unravel the reliability of the entire jury system.  Or is it just hype?

That’s the question that the Federal Judicial Center recently set out to answer.  The FJC is the research and education agency of the federal judicial system, established by Congress in 1967.  Its purpose is to educate federal judges and court staff, research court operations, and develop recommendations for improvement.

To assess the scope of the juror social media problem, the FJC surveyed 508 federal district court judges across the country.  The results–described in a November 22, 2011 report–may surprise some people.  It concluded that “social media use by jurors is infrequent, and that most judges have taken steps to  ensure jurors do not use social media in the courtroom.”

So it’s under control then, right?  Maybe.  But digging a little deeper into the data complicates that conclusion.  First, the report is based entirely on the feedback of judges, which means it only reports social media use that got found out.  This survey says nothing about juror posts that never got reported back to the judge.  Given the number of other things that a court and lawyers have to manage during a trial and the decentralized, semi-private nature of social media, it’s reasonable to suspect that the unreported social media use eclipses the instances that get discovered.

Second, the consequences of even one juror misusing social media remain high.  In over 13% of reported cases, the juror’s actions caused a mistrial.  That means the hundreds of thousands of dollars of private money and public resources that had already gone into preparing witnesses and evidence, conducting the trial, and paying employees were wasted and had to be repent–all because one person couldn’t resist sharing their thoughts on Facebook.

In 30% of reported cases, the judge removed the juror from the panel.  26.7% were cautioned, but allowed to stay on the panel.  So regardless of how the trial finally resolved, this conduct likely gave the losing party one more argument to make on appeal–i.e., that the juror’s actions tainted the result of the trial.  In some cases, such as the recent decision in Diminas-Martinez v. Arkansas, 2011 Ark 515 (Dec. 8, 2011), this can mean that the entire trial is thrown out.  Other recent appellate decisions in California, Connecticut, New Jersey, and the Third Circuit, among others, considered the argument but still upheld the decision.  Even in these cases, however, thousands of dollars in extra attorney and judicial time was spent dealing with something that was entirely preventable.

Third, fully 94% of the judges surveyed said they had adopted measures to prevent jurors from misusing social media, such as adding extra jury instructions or giving frequent reminders.  While these steps are low-cost, they again make the trial process that much more cumbersome, adding yet another layer of detail to a process that is already incomprehensible to many lay people.

In sum, this report underscores the prevailing wisdom that juror misuse of social media is a problem to be taken seriously and addressed where necessary.  It doesn’t pose a fundamental threat to our system of justice, which will adapt accordingly just as it has with previous challenges.  Still, a little personal responsibility and decorum from jurors would go a long way toward making the system more efficient and fairer for everyone involved.

Feb.15 Webinar: Social Media Legal Implications for Health Care Providers

February 8, 2012 in Social Media with 0 Comments

On Wednesday, February 15, my colleagues Linda Ross and Mary Pate and I will be presenting on this topic in a webinar sponsored by the Michigan Health & Hospital Association (MHA).    More information and a registration form are available here.
This is our second time presenting to the MHA’s constituency, but the substance of our materials has been completely updated to reflect changes in this quickly evolving field.  Here’s how the MHA describes the event:
Facebook, YouTube, Twitter, LinkedIn…social networking is everywhere and presents both opportunities and challenges for the health care sector.  These online communities can offer affordable and powerful means of marketing and disseminating valuable information to patients, providers and the public.  Yet, misuse can also lead to unanticipated and undesirable legal consequences.  The MHA Health Foundation Webinar Social Networking:  Legal Implications Health Care Providers Need to Understand will help you navigate potential health care and employment law pitfalls as you determine and develop the role of social media in your organization.
Attendees will examine:
  • social media opportunities and challenges in the health care setting
  • lessons learned from recent litigation involving social media
  • do’s and dont’s in your social media policy
  • a look to the future trends in social media

If you’re in health care and at all curious or concerned about these issues, I hope you can join us.

New Year Bring New Guidance from NLRB on Employees and Social Media

February 7, 2012 in Social Media with 2 Comments

The National Labor Relations Board is at it again.

In August 2011, its Acting General Counsel, Lafe E. Solomon, issued a report summarizing several of its then-pending enforcement actions dealing with social media.  These are disputes in which an employee was disciplined or terminated for something he or she posted online.  In many of these cases, the NLRB sided with the employee, bringing charges against the employers for infringing the employees’ federal right to engage in “concerted activity.”

Six months later, Solomon recognizes that “these issues and their treatment by the NLRB continue to be a ‘hot topic’ among practitioners, human resources professionals, the media, and the public.”  Therefore, in an attempt to keep all of these audiences informed on what the Board is thinking and where its efforts are headed, Solomon released a followup report on January 24, 2012.  This document summarizes “fourteen recent cases that present emerging issues in the context of social media [and employment law].”

One notable aspect of these cases is that the Board appears to be focusing even more of its attention on the employer’s social media policy, as opposed to just the facts of individual employees’ dismissal.  In some cases, even when the Board agreed with a termination, it still punished the employer for language in social media policies that, if read literally, gave the employer too much discretion over employee behavior.

As I did last time, instead of analyzing each case at length, I’ll reprint the headlines from each section in the report.  This will give you an idea of why the NLRB considers these 14 cases to be important representations of the “emerging issues” in this area of law:

  • Discharge for Facebook Comments and for Violation of Non-Disparagement Rule Was Unlawful
  • Discharge for Facebook Comments Was Lawful, But Social Media Policy and No-Solicitation Rule Were Overly Broad
  • Employer’s Social Media Policy Was Overbroad, But Employee’s Facebook Posts Were Not Protected
  • Portions of Employer’s Communications Systems Policy Were Overbroad
  • Employer’s Initial Social Media Policy Was Overbroad, But Amended Version Was Lawful
  • Provisions in Drugstore Operator’s Social Media Policy Withstand Scrutiny
  • Employee Was Unlawfully Discharged for Her Facebook Complaint About Reprimand
  • Employees’ Facebook Postings About Supervisor and Promotion Selection Were Protected Concerted Activity
  • Employee’s Facebook Postings About Manager’s Attitude and Style Were Protected Concerted Activity
  • Employee’s Critical Online Postings Were Protected Concerted Activity That Did Not Lose Act’s Protection
  • Employee’s Facebook Postings About Irritating Coworker and Workplace Incident Were Not Protected
  • Truck Driver Was Not Engaged in Concerted Activity and Was Not Constructively Discharged
  • Employee’s Facebook Criticism of Supervisor Was Venting and Was Not Concerted

 

 

Justice Department Agrees: First Amendment Protects the Right to Video Police

February 2, 2012 in Social Media with 0 Comments

I’ve previously argued in court briefs, on this blog, and in the press that citizens have a qualified right under the First Amendment to take and share video of police officers acting in the course of their duties in public spaces.  If we didn’t have that right, then people like the videographer who filmed the Rodney King beating could be jailed for obstructing justice or sued for invading privacy, rather than being lauded as an American hero.

Yet, in lawsuits and criminal prosecutions all around the country, some police officers have been trying to accomplish exactly that result.  The vast majority of courts to rule on the subject have ruled in favor of the citizen-videographers, noting that such monitoring can be an essential tool for keeping public servants accountable.  But in many courts, this remains an open legal question.

On January 10, 2012, however, the U.S. Justice Department took a big step toward resolving the issue.  In a case pending in the U.S. District Court for the District of Maryland, the DOJ filed a brief explicitly supporting a citizen’s right to film police in public.

The Background of the Case

These “facts” are taken from the complaint filed by the plaintiff, Christopher Sharp, as described by the DOJ’s brief.  They haven’t been ruled on by a court yet, so we don’t know that they’re entirely accurate.  But for purposes of the motions currently pending in the case, the court must assume that the allegations are true.

On May 15, 2010, while in the Clubhouse at the Pimlico Race Course,  Sharp observed Baltimore City Police Department (“BPD”) officers forcibly arresting his friend. Mr. Sharp used his cell phone camera to video and audio record the officers’ conduct. Several officers approached Mr. Sharp and ordered him to surrender his camera phone. After twice refusing to comply with officers’ demands, Mr. Sharp surrendered his phone to an officer who said he needed to review and possibly copy Mr. Sharp’s recording as evidence.

When the officer returned with Mr. Sharp’s cell phone, he ordered Mr. Sharp to leaves. As Mr. Sharp left the Clubhouse, he discovered that officers had deleted all of the recordings on his cell phone, including the two recordings of his friend’s arrest and at least twenty personal videos of great sentimental value. The phone had also been reset so that it only permitted emergency calls.  On August 31, 2011, Mr. Sharp filed a Complaint alleging violations of state law and rights protected by the First, Fourth, and Fourteenth Amendments to the U.S. Constitution.

The DOJ’s Position

The DOJ is not a party in the case, but it intervened for the purposes of expressing its view of the law.  In a filing called a “Statement of Interest,” the DOJ made it absolutely clear that the First Amendment protects what Sharp did:

“This litigation presents constitutional questions of great moment in this digital age: whether private citizens have a First Amendment right to record police officers in the public discharge of their duties, and whether officers violate citizens’ Fourth and Fourteenth Amendment rights when they seize and destroy such recordings without a warrant or due process. The United States urges this Court to answer both of those questions in the affirmative. The right to record police officers while performing duties in a public place, as well as the right to be protected from the warrantless seizure and destruction of those recordings, are not only required by the Constitution. They are consistent with our fundamental notions of liberty, promote the accountability of our governmental officers, and instill public confidence in the police officers who serve us daily.”

Of course, the DOJ does not have the final say in interpreting the Constitution.  That’s what the federal courts–and ultimately, the Supreme Court–is for.  But the DOJ is the federal government’s top law enforcement agency.  So for it to take a firm position on this issue speaks volumes about how the law is likely to be interpreted and applied.

 

SEC Releases Alert on Investment Adviser Use of Social Media

January 26, 2012 in Social Media with 1 Comment

On January 4, 2012, the Securities and Exchange Commission released a 7-page alert called “Investment Adviser Use of Social Media.”  The document is the result of a review that the SEC conducted of “registered investment advisers of varying sizes and strategies that were using social media.”

The SEC observed that, while many firms they reviewed had “policies and procedures within their compliance programs that specifically apply to the use of social media,” there was significant “variation in the form and substance of the policies and procedures.”  Moreover, some provisions of these policies were confusing, vague, or off-point.

Based on these observations, the SEC offered a “non-exhaustive” list of 13 factors that investment advisers “may want to consider when evaluating the effectiveness of [their] compliance program with respect to … use of social media.”  Those factors include:

  • Usage Guidelines
  • Content Standards
  • Monitoring
  • Frequency of Monitoring
  • Approval of Content
  • Firm Resources
  • Criteria for Approving Participation
  • Training
  • Certification
  • Functionality
  • Personal/Professional Sites
  • Information Security
  • Enterprise-Wide Sites

The report also went on to discuss guidelines for sites that allow third-party content, such as testimonials, to be posted on their social media sites.

It concluded by reminding investment advisers they have a duty under the Advisers Act to preserve copies of all documents pertaining to the advice they give, regardless of what media it’s in.  Advisers “that communicate through social media must retain records of those communications if they contain information that satisfies an investment adviser’s recordkeeping obligations under the Advisers Act.”  That may be the most onerous requirement of all, and the report includes another list of factors to consider when evaluating whether a social media communication needs to be preserved.

Prediction Fulfilled(?): Supreme Court Turns Down Student Social Media Cases

January 25, 2012 in Social Media with Comments Off

In my January 5 Mashable article “5 Predictions for Social Media Law in 2012,” I described the chaos that is the current state of the law on social media posts by students.  Public high school (and even middle school) students have been suspended or expelled for things they’ve written online about teachers, administrators, and fellow students.  When those students have turned around and sued the school for violating their First Amendment right to free speech, the results have been all over the map.  This is likely to remain true until the Supreme Court takes up the issue directly, which I predicted “is unlikely to happen as early as 2012.”

And indeed, on January 17, the Supreme Court declined to hear three closely watched appeals raising these precise issues.  In one case, an eighth-grade girl created a fake, “vulgar” profile of her principal, with his photo, that portrayed him as a sexual predator.  In the second case, a Pennsylvania high school senior also created a fake profile for his principal, calling him  a drug user, a “big fag” and a “big whore.”  Both profiles were held to be protected speech.  But in the third case, the punishment of a West Virginia girl was upheld after she created a Facebook group dedicated to mocking a fellow student as a “slut” who had “herpes.”

The Supreme Court decided not to hear the appeals, which means the decisions stay in place.  As usual, the Court made no comment when issuing its decision, and it is not a ruling on the merits of the appeals.  Its reasoning is anyone’s guess.

Personally, I suspect that most of the Justices feel this is an issue that should be allowed to percolate for a while longer in the lower courts, to see if some pattern or standard emerges.  They could also be waiting for a perfect test case–one in which the facts of the case raise all of the important issues on this topic in a way that allows the Court to issue a clear ruling.  These types of cases are heavily fact-dependent and already messy enough; the Justices want to know that their effort will be worthwhile in setting precedent that future courts can follow.

Nevertheless, because students will never stop finding new and creative ways to insult faculty, administrators, and other students, I suspect that the Court will eventually be forced to take one of these cases.  And there are still 11 months left in the year, so I have plenty of time to be wrong in my prediction of when this will happen.

Augmented Reality & Social Change: My Upcoming Presentation

January 23, 2012 in Augmented Reality, Social Media with 4 Comments

On February 17, 2012, I will be a panelist at the Michigan State University International Law Review Symposium titled “Modern Global Revolution.“  The panel on which I’m participating will discuss “TECHNOLOGY, SOCIAL MEDIA, & REVOLUTION: Modern Methods of Organizing and Implementing Change.”

My portion of the discussion is entitled “Augmented Reality and Social Change.”  I’ve blogged on this topic before, but I’m looking forward to examining it in this more academic environment.

Here is a copy of the abstract describing my presentation:

Augmented Reality (AR) is a paradigm-shifting technology with the potential to shape human interaction as profoundly as the internet and cellular telephones have over the past two decades.  It only stands to reason, therefore, that AR will open new pathways for encouraging and affecting social change.  Some of these pathways are foreseeable; others may not be.

We have already seen AR used by “Occupy” protesters as a means of organizing events, spreading their message to the public, and building community bonds between protesters.  AR protest paraphernalia also appeared in venues where physical demonstrators were unable to go.  The fervor of public discontent across the globe that was seen most vividly with the 2011 Arab Spring and continues in the online resistance to SOPA and PIPA suggests that individuals and small organizations will only continue to find innovative and cost-effective means of expressing their message.  AR applications are well-suited to that task.

AR has been, and will likely be, used to foster change in ways that are both more and less subtle than the Occupy example.  For instance, governments are already adopting AR for public service announcements, the aim of which is to directly alter citizens’ behavior.  The expansion of AR technologies into such regulated behavior as driving an automobile and commercial advertising—not to mention the potential for related criminal behavior–ensures that governments will get into the business of policing AR use.  Co-opting the medium for political messages cannot be far behind.  Political parties themselves have already begun to do so.  And in a similar vein, artists are embracing AR as a consequence-free medium for attaching their own messages to anything and everything in the physical world.  AR’s potential as a change agent, therefore, is multi-faceted.

My Interview on the Emily Rooney Show

January 18, 2012 in IP, Social Media with Comments Off

Today I had the great honor of appearing as a guest on the Emily Rooney Show, a program on WGBH Boston.  I explained the current controversy over the SOPA and PIPA copyright bills, and discussed some of my predictions for social media law in 2012.  You can listen to a recording of the interview here.

Would SOPA & PIPA Violate the First Amendment?

January 18, 2012 in IP, Social Media with 2 Comments

Today, thousands of sites across the internet have voluntarily blacked themselves out in protest of two bills pending before Congress: the Stop Online Piracy Act (SOPA) in the House of Representatives, and its Senate version, the Protect IP Act (PIPA).  Although intended to serve the laudable goal of combating online piracy of copyrighted works , the consensus among these protestors (which include most of the largest companies in Silicon Valley) is that SOPA & PIPA contain at least the following flaws:

  • By using, or at least encouraging, the technology known as “DNS blocking,” the Acts would threaten the structural integrity of the entire internet, leaving users more vulnerable to hacking.
  • Its remedies are overkill. Instead of the current regime under the Digital Millennium Copyright Act, which permits copyright owners to send ISPs notice of particular infringing material and request its removal, the Acts would empower owners to demand that an entire website be blocked, links o them removed from search engines and other websites, and advertising and payment processing websites stop doing business with the site–all because the owner “believes” that the site is “dedicated to the theft of US property.”
  • Because the Acts allow owners to seek a court order requiring these steps as a first step, the allegedly infringing sites and the third-party linking sites targeted by the owner would need to defend themselves in court every time an owner makes a claim against the them.  The prohibitive legal costs involved would force websites to comply even with bogus or poorly supported requests.
  • The vague, broad wording of the Act would force search engines and other websites to self-censor their content, for fear of being held liable to infringing user-generated material.  Sites that rely on such content, such as YouTube and Facebook, might cease to exist.  The effort and expense of policing every single link on the site would be prohibitive, and many would choose simply not to host any content rather than risk liability.
  • By targeting software tools that would circumvent the DNS blocking solutions, the Act would jeopardize the political dissidents around the world who rely on such tools to fight oppressive regimes.

One question that I haven’t seen articulated very often, however, is whether these Acts would pass constitutional muster if they were ever challenged in Court.  That’s where renowned constitutional scholar Laurence H. Tribe comes in.  He has published a lengthy legal memorandum detailing several reasons why SOPA and PIPA violate the First Amendment’s protection of free speech.  Those reasons include:

  • The Acts amount to impermissible “prior restraint” of speech, because they allow private parties to suppress speech without a judicial hearing and due process of law.
  • The definition of a website “dedicated to the theft of US property” is impermissibly vague, and allows copyright owners to target entire sites when only a small portion of them contains infringing material.
  • The burden placed on websites to police their own content, under threat of strict liability for infringing content found there, will chill their exercise of free speech rights.
  • The sweeping remedies authorized by the Acts are so broad that they will inevitably affect “large swaths” of legitimate speech as well.
  • The Acts authorize the US Attorney General to blacklist sites suspected of infringement, under a process that is unlikely to ever afford most sites a realistic chance of defending themselves.  US citizens would then be deprived of information that they have a First Amendment right to access.

To this list, I would add the fact that neither Act appears to acknowledge or respect the defense of “fair use” protected by the Copyright Act.  Courts have explained that this defense is a “safety valve” necessary to ensure that First Amendment rights are respected in situations where their exercise may technically constitute copyright infringement.  In one recent, celebrated decision, a federal judge ruled that a copyright owner ran afoul of this defense by failing to consider a YouTube user’s potential fair use rights before demanding that her video be removed.  Under SOPA and PIPA, however, the owner could have simply demanded that the whole of YouTube be blocked because of that video.

Some of Tribe’s arguments overlap each other, and include policy considerations that go beyond the bounds of First Amendment case law.  Nevertheless, these are important considerations that raise issues at the heart of our constitutional democracy.  They also lay out paths to a legal challenge in the even that SOPA and PIPA become law.

The First Three Social Media Cases of 2012

January 12, 2012 in Social Media with Comments Off

At least three different courts released opinions dealing with social media during the first week of January 2012.  The variety of these opinions demonstrates that social media will continue to influence every facet of law in the coming year.

Evidence Law

State v. Altajir, 2012 Conn. Lexis 2 (Supreme Court of Connecticut, Jan. 3, 2012).   At Altajir’s probation revocation hearing, the prosecution introduced 36 photographs from her Facebook page.  They were intended to demonstrate that Altajir had been “worshipping at the altar of alcohol and debauchery and lewd behavior,” and had not learned the lesson of her criminal conviction.

The Connecticut Supreme Court struggled with the question of whether or not this evidence should have been admitted, because the prosecution had done absolutely nothing to authenticate them or prove their reliability.  Ultimately, however, the Court upheld the trial judge’s decision to consider the photos.  The court did note that the photos would not have passed the evidentiary test in a trial, but the standards are lower in a probation revocation hearing.  Moreover, Altajir did not deny the pictures’ authenticity or show anything to suggest that they were unreliable.

Judicial Misbehavior

Doe v. Sex Offender Registry Bd., 2012 Mass. App. Lexis 3 (Jan. 4. 2012).   Doe appealed his classification as a sex offender.  One of his arguments was that the hearing officer who made the determination later posted “inappropriate comments” about Doe’s case on a coworker’s Facebook page.  The court called the hearing officer’s actions “most unfortunate” that impugned the “dignity” of the judicial process, but nevertheless did not find that the hearing officer should have recused herself.

Sex Crimes

US v. Anderson, 2012 US App Lexis 60 (8th Cir. Jan. 4, 2012).  The fact pattern of this case has become far too run-of-the-mill.   A 13-year-old girl met Anderson, an adult male, on Facebook, and ended up sleeping with him.  The girl’s mother found out and contacted the police.  They obtained a search warrant for Anderson’s Facebook account, and discovered more than 800 private chats, mostly with teenaged girls. Several of these referenced alcohol and partying with young girls.  Some contained “inappropriate pictures” and asked for similar photos in return.  This evidence was more than enough to support a severe sentencing recommendation and sex offender status.

Stay tuned to see what the rest of the year brings….

 

 
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