Earlier this week I had the privilege of presenting on Social Media Law to the annual meeting of the Michigan District Judges Association. I had been asked to cover a wide range of topics relevant to the judges and their courts, including how to get social media materials into evidence, crimes that occur in social media, how the technology affects parolees and probationers, and its use by judges and lawyers, among other topics. It was a lively and engaging interaction with a room full of accomplished legal minds.
Below is a stripped-down outline of my talk. While my actual presentation went much deeper into several of these topics than is indicated here, this outline nevertheless conveys the high points, as well as much of the Michigan-specific case law to address social media topics.
I. What is Social Media?
- Digital platform for real-time interaction between multiple individuals
- Virtually all websites and digital tools have social components anymore, but there are a select few popular sites we think of when referring to social media.
- Why social media is not a fad.
- Tomorrow's social media.
II. Inherent Legal Risks
B. SUBSTANTIVE LEGAL ISSUES
I. Tort & Criminal Liability
- Reputational torts
- Eavesdropping (civil & criminal)
- ID Theft
- Unlawful access to another's account
- Sexting = production, possession, & distribution of child porn.
- Internet chat rooms / pervert busts
- A threat is still a threat regardless of medium
- Harassment / free speech - fine line between them.
- "Shaming" sentences have a long history, now in the SM realm.
- Thai court sentenced defamer to apologize online
- 2011 Kalamazoo Circuit case - People v. Lucas Robert Armstrong, 21. Beat another young man to within an inch of his life. Lawyer requested HYTA; denied based in part on unremorseful Facebook post. Got 75 days in jail.
- Judge also ordered Armstrong to post on Facebook an apology and warning against alcohol for 30 days.
- Potential First Amendment issues with forced apologies?
- On Jan. 25, Kentucky magistrate Paul Meyers found a man's Facebook post had violated his PPO and offered him a choice: go to jail for 60 days and pay a $500 fine, or pay back child support and post an apology on his Facebook page for 30 days.
- Another woman arrested for poking on Facebook, because it violated the terms of her PPO.
- Louisiana - banned all convicts from accessing internet; struck down under First Amendment. Later required all sex offenders to note status on Facebook, which will cause Facebook to ban them.
- US v Smalcer (CA6, 2012)- probationer has no 5th amendment right against sel-incrimination, therefore ok to force him to give up Facebook password.
C. PROCEDURAL ISSUES
- Must show "the information is relevant or reasonably calculated to lead to the discovery of admissible information."
- Social Media is potential goldmine of evidence, because of low inhibitions, but also comes with a lot of personal, irrelevant material.
- General principle - avoid fishing expedition while capturing anything potentially relevant
- Anderson v MG Trucking (Mich Ct App 2012) - directs trial court to consider relevance of posts to claims before denying discovery. Adopted approach of Pennsylvania case in which a magistrate conducted an in camera review of Facebook page in a personal injury case. His claimed physical injuries include claims of right shoulder and lower back injuries. Accordingly, Plaintiff's physical capabilities and activities are relevant to the review. Ordered production of info related to plaintiff's use of motorcycles.
- By contrast, Chauvin v. State Farm (EDMI, 2011) involved denial of insurance coverage under no-fault act. State Farm sought plaintiff's Facebook password and all content. Not relevant to issues in case, because coverage denied on a specific ground. Even sought names and phone numbers of all Facebook friends. Court found requests designed to harass and fined state farm.
- Another EDMI judge has refused to conduct an in camera review if the parties cannot first demonstrate relevance.
- Stored Communications Act - can't access content of stored messages from provider. Can get related transactional data, and can order party to produce. Can also get Wall posts.
- MRE 901 provides nonexhaustive list of suggestions.
- Texas Court of Appeals has said that existing evidence rules are enough for social media, but no one approach will work in every case.
- State v Griffin (Mary. 2011) . First major look at social media authentication from a supreme court. Suggestions:
- Griffin struck MySpace post and conviction because prosecution made no effort to authenticate. Emphasized ease of fake accounts. Dissent accused majority of "technological heebie-jeebies."
- People v Goins (2010) - Victim post on MySpace allegedly contradicted her version of events at trial. Trial court refused to find authentic. Error, because "distinctive characteristics" showed reliable -- parties had met through this account; content of post suggested she wrote it; unlikely she shared password. But still hearsay, because defendant hadn't laid proper foundation to confront her with it as a prior inconsistent statement.
- People v. Prentice (Mich App 2012) - victim's inconsistent statement on Myspace about events at party are evidence of possible perjury; remands for consideration of new trial
- Other states have admitted admissions and prior inconsistent statements
- As to Reputation/Character: People v. Orlewicz (MI App 2011). Victim's Myspace page admissible re aggressive character of vitctim. Page taken as a whole is "a semi-permanent yet fluid autobiography presented to the world .. self-directed and self-controlled general character evidence."
- Context / not truth of matter - People v Oyerinde (Mich App 2011) - Facebook messages admitted to give context to the parties' relationship, not as to whether alleged events occurred, therefore not hearsay
- Photos - very popular - especially gangs and guns. Not a statement offered for truth, but subject to 404(b) bad acts rule or 403 prejudice.
- Difficult to preserve. Not stored locally but on server farms.
- Can sometimes triangulate based on cache and hstory, but difficult.
- But intentional spoliation could be costly. Lester v Allied Concrete (Va. Cir. 2011) - wrongful death based on car accident that killed plaintiff's wife. Embarassing photos on plaintiff's page. Lawyer told him to delete. Sanctioned $722k.
V. Attorneys / Jurors
- Consider advising attorneys not to let clients delete relevant evidence.
- Attorneys should not friend or contact opposing parties. No ethical ruling in MI yet (though not for lack of trying), but general consensus that public is public, but should not enter into relationship for purpose of getting evidence.
- Attorney use in jury voir dire not only proper, but useful. Helps uncover biases not disclosed by jurors, and juror misue is rampant. Several examples.
- FJC survey of 508 federal district court judges across the country got surprising results.
- In some cases, such as a recent one in Arkansas, 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.
D. COURTS AS EMPLOYERS
I. Asking for Employee Passwords
- Don't. Privacy implications. Bills pending in MI and Congress.
- Not worth it anyway. Can ask for their account names, wil see anything public.
II. Employee use of Social Media
- Protected concerted activity is the most litigated issue here. Priority of the current NLRB.
- Also harassment, discrimination exposure.
- Who owns accounts when employee leaves?
- First Amendment retaliation. Examples in Michigan and nationwide.
E. COURTS & THE PUBLIC
I. Judicial Use
- Can campaigns use social media? No official guidance in Michigan, but judges are using it.
- Can you friend a lawyer who practices in front of you, or a court employee?
- NC judge reprimanded for Facebook misuse.
- My personal experience with friending (and unfriending) judges.
- About half the states have at least on court system on Twitter. MI has two: the Mich Supreme Court PR Office (very active, retweets) and the Kalamazoo courts (one tweet in 2010)
- No presence on Facebook to speak of. Lots of room to grow. If your court has a public outreach component, or info to convey to the public (closures, special directions, FAQs), social media is a great way to get the word out.