The Use of Social Media in Criminal Prosecutions

It’s safe to say that social media is here to stay. What was once thought to be a fad among teenagers and young adults, has now crept its way into the hands of all generations. We are in constant connection with each other and share information about our lives much more openly than ever before. For a lot of us it’s been the easiest way to keep in contact with distant family and friends and the fastest way to disseminate information to a large group of people. Social networking sites like Facebook, Twitter, Instagram and Snapchat have created communities where sharing personal details about your life such as travel plans, photos and videos of your daily activities, reposted articles and memes and status updates regarding your thoughts on a particular event are easily accessible. However, social networking sites are used for much more than surface level connectivity.

For employers and prosecutors, social networking sites are a gold mine. Employers can easily google a job candidate and one of the first results to pop up will probably be their Facebook or LinkedIn page. If the candidate’s page is public or the candidate’s privacy settings are lax, employers can legally view tons of information about that candidate to help them in their search for the right employee. Prosecutors also have this same privilege. Collecting evidence via social media may be nontraditional, but it’s the way of the future for trial attorneys in different areas of practice like personal injury, family law and criminal law. Sometimes evidence gathered from social media can be used as direct or circumstantial evidence in trial to prove that someone was at a particular location or that someone committed a crime.

While courts in Florida agree that social media evidence is discoverable, the admissibility of such evidence is still up for debate. Admissibility depends on two major factors: relevancy and authenticity. Relevancy is much easier to determine because if the evidence is not related to any part of the case, it does not need to be introduced into evidence. Authenticity on the other hand is a bit trickier when it comes to social media. Federal Rules of Evidence 901 provides that “to satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” The rule also provides several examples of evidence that satisfy the requirement which include testimony of a witness with knowledge, non-expert opinion about handwriting, comparison by an expert witness and distinctive characteristics.

Authenticating evidence from social media can be complicated for a few reasons:

  1. The accused may not be the person who actually posted or communicated the message. Someone could’ve hacked into the accused’s account and posted and/or communicated messages that did not truly come from the accused. How can attorneys be sure that the evidence actually came from the accused?
  1. Another concern is that social media evidence, being electronic in nature, can be easily manipulated and misrepresent what was actually posted. How can attorneys determine if material has been altered in any way? How can courts and jurors be sure that evidence presented to them hasn’t been tampered with?
  1. Lastly, tagging people on social networking sites like Facebook and Instagram presents another hurdle. What if the wrong person is tagged or someone is mistakenly tagged in a photo? How can attorneys verify that the right person was tagged in the incriminating evidence?

The same examples given in FRE 901 can also be applied to the social media context. A witness with personal knowledge, distinctive characteristics about the evidence or expert witness testimony by an internet consultant are a few examples of methods that can be used to authenticate the information.

Prosecutors have free reign to search and collect evidence from social media that is public, but what happens when an accused person’s page is private and little to no information other than basic details are accessible? The Stored Communications Act regulates when an electronic communication service can and cannot release electronically stored information about you to private parties. The Stored Communications Act was created to preserve our privacy rights and protect our Fourth Amendments rights against unlawful searches and seizures. It protects information that is electronic communication, transmitted via an electronic communication service, maintained in electronic storage and not accessible to the general public. The government can only gain access to this sort of information after obtaining a warrant or subpoena in which they must prove “specific and articulable facts showing reasonable grounds to believe that the records or other information sought, are relevant and material to an ongoing criminal investigation.” American Civil Liberties Union v. U.S. Department of Justice. So for instance if a prosecutor wanted to collect evidence from an individual’s Facebook wall posts that was not public, the prosecutor would have to obtain a warrant because Facebook wall posts are protected by the Stored Communication Act (SCA). A New Jersey federal court in 2013 was one of the first cases to analyze the SCA’s application to the Facebook wall and held that an employee’s Facebook wall posts were protected by the SCA. Ehling v. Monmouth-Ocean Hospital Service Corp.

There are a number of cases where prosecutors have discovered evidence via social media and used it in court. Courts are still testing the waters and trying to figure out how social media evidence should be used and applied. In Disciplinary Counsel v. Brockler, 145 Ohio St.3d 270, 48 N.E.3d 557 (2016), an assistant county prosecutor assigned to a murder case was terminated from his job and suspended from the practice of law for one year for professional misconduct involving a fictitious Facebook account. In an attempt to disprove the defendant’s alibi, the prosecutor created a fictitious Facebook account and chatted with the defendant’s girlfriend about the case for several hours until he got the information he needed. Ultimately, the case was handed over to another prosecutor and it came to light that the previous prosecutor contacted the defendant’s girlfriend under the fictitious account. The prosecutor had violated Professional Conduct Rule 8.4(c) which prohibits an attorney from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. The prosecutor wanted the board to carve out an exception for him arguing that a comment to Rule 8.4 has an exception for lawyers who advise lawyers about lawful covert investigative activities. However, because the prosecutor himself was doing the covert act, the board found that the exception did not apply to him.

In another case, Bryant v. State, 2016 WL 4705157 (2016), appellant argued that legally insufficient evidence (photos found on his public Facebook page holding items that were stolen) supported his conviction of a robbery because the State did not introduce any evidence establishing that the appellant was at the victim’s home on the date of the robbery. The appellant argued that there were no witnesses to testify that he was at the scene of the robbery, that the Facebook photos were circumstantial evidence, and there was no DNA evidence to connect him to the robbery. The court overruled the appellant’s argument and decided to look at the combined and cumulative force of all the evidence. The court held that all of the circumstantial evidence was sufficient to support the appellant’s conviction.

In State v. Rund, 2016 WL 4162925 (2016), a 19 year old boy was pulled over by an officer and given a ticket for driving 68 miles per hour in a 60 miles per hour zone. The boy later sent tweets to his friend talking about the incident and how angry he was. The boy posted threatening statements to his friend discussing how he would kill officers and hashtagged the police department. The last part of his threatening tweets referenced a song. The boy was charged with the felony of making a terroristic threat. He quickly admitted he was wrong and showed great remorse. The court imposed a durational departure and modified his sentence from 3 years to two years because he did not really intend to kill officers and his conduct did not involve the typical crime for which he was sentenced. Threats from terrorists as noted by the court are typically face to face or received in the mail directly. I think it’s also interesting to note that the court found that some of the boy’s tweets were lyrics frequently used in gangster rap songs. “The use of language that expresses approval of violence against police, while disturbing in this case, may not indicate actual intent to kill a cop and may merely constitute a protest against police conduct.”

I’d like to discuss one last case that is sparking conversation. California Penal Code 182.5 states that any person who actively participates in a gang with knowledge that its members engage in a pattern of criminal gang activity and who willfully promotes, assists or benefits from the criminal activity of other gang members is guilty of conspiracy to commit that felony. It’s basically guilt by association. San Diego prosecutors charged two men with this penal code and said that they benefitted from murders allegedly committed by fellow gang members. Prosecutors alleged that one man got a boost in his music career because of the murders and the other man had Facebook posts with him flashing a gang sign and even has a gang sign tattooed on him. Prosecutors acknowledge that neither of the men actually committed the murders. There’s plenty of controversy surrounding this case because some feel that the men are basically being targeted for the content of their speech and there’s debate on how the term willfully should be interpreted. Also, this case raises a deeper issue of how police determine gang members and whether it would unfairly include young black men in gang prosecutions. The conspiracy charges were ultimately dismissed because the court found that the men did not willfully benefit from the killings. Penal Code 182.5 is a largely untested law and courts are entering new territory with its prosecution.

Some Questions to Think About:

-Do you think evidence gathered from social media should be used in court or should attorneys focus on gathering evidence another way?

-The Florida Rules of Civil Procedure have been amended to include discoverability of electronically stored information (ESI), but do not provide guidelines for the admissibility of ESI. Is the current framework sufficient? Should Florida amend the rules to also include the admissibility of ESI? If so, what kind of rules would you propose?

-Keeping in mind some of the challenges, what steps can be taken authenticate evidence from social media?

-The Stored Communications Act protects Facebook wall posts. What other types of information do you think the SCA should protect? Facebook chats, messages posted on a friend’s wall, status updates, posts that were previously public then made private?

-Do you think there are any circumstances in which prosecutors should be allowed to create fictitious accounts to gather evidence crucial to their case?

-What do you think about California Penal Code 182.5 and how prosecutors can gather evidence from social media to determine gang affiliation? Do you think it will unfairly target young black men? Is Penal Code 182.5 an attack on free speech?

Sources:

https://www.floridabar.org/DIVCOM/JN/JNJournal01.nsf/c0d731e03de9828d852574580042ae7a/78eec84889b66af085257c4a0073203a!OpenDocument&Highlight=0,*

https://www.washingtonpost.com/politics/courts_law/supreme-court-throws-out-conviction-for-violent-facebook-postings/2015/06/01/68af3ee0-086b-11e5-a7ad-b430fc1d3f5c_story.html

http://cyb3rcrim3.blogspot.com/2016/08/the-fictitious-facebook-account.html

http://cyb3rcrim3.blogspot.com/2016/09/youthful-indiscretion-tweets-and.html

http://cyb3rcrim3.blogspot.com/2016/09/aggravated-robbery-facebook-and.html

http://america.aljazeera.com/articles/2015/3/16/rap-prosecution.html

http://www.sandiegouniontribune.com/news/crime-courts-fire/sdut-gang-conspiracy-dismissed-tiny-doo-harvey-2015mar16-htmlstory.html

https://www.insideprivacy.com/social-media/federal-court-finds-stored-communications-act-applies-to-facebook-wall-posts/

 

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~ by akabia on October 3, 2016.

10 Responses to “The Use of Social Media in Criminal Prosecutions”

  1. I think evidence from social media should be allowed to be used in court. However, I do think there needs to be sufficient guidelines put in place to ensure that people are not being connected with a crime solely based on their speech. In addition, there needs to be standards to authenticate the evidence seized from social media because if there is not a certain way to “fact check” social media posts, then the evidence should be considered unreliable.

    The ABA posted an article, The Authentication of Social Media Postings, which stated one way is to determine whether the exhibit is an actual printout from the social media site it is purported to be. [1]. The article further explains this can be done by simply calling the person who printed out or provided the social media evidence to testify to its authenticity. Id. However, this may be adequate in some situations, it does not provide a solution for issues with hackers or for electronic evidence which has been manipulated or altered. The article proposes that forensic computer experts could also be used as a witness to testify to the social media evidence and determine the identity responsible for the posting, but these experts are not always available and does not necessarily resolve issues such as whether the person shared the password to his or her account with others or if someone else had access to the computer at the time the post was made.

    Overall, I do not see anything wrong with using social media posts as evidence. However, the courts and legislators need to make sure this is not being abused by prosecutors or someone who has an interest in litigation. For instance, with the California Penal Code 182.5, I think it could be useful to determine if someone is affiliated with gang but only if it is truly authenticated and deemed to be reliable. Many people post things on social media that are misconstrued or are not even true representations from that specific person and such posts cannot be taken seriously as conclusive evidence. This is an interesting topic to pay attention to going forward because there definitely needs to be a balance with obtaining significant evidence and protecting freedom of speech and privacy rights.

    [1]
    https://apps.americanbar.org/litigation/committees/trialevidence/articles/051711-authentication-social-media.html

  2. Unfortunately, many kids nowadays judge their social status based off of how many friends they have on Facebook, how many followers they have on Instagram, or how many people have re-tweeted their tweet. Social media is here to stay. With that said, it is important for people to understand that anything they post or put up online via social media, never truly gets deleted. The 19-year-old kid mentioned in the blog is a great example. It didn’t fully matter that he was merely expressing his anger via one of the only outlets he probably thought he had. It didn’t matter that he was most likely never going to follow through with the words he wrote. He was convicted of a felony and that is something that will stay on his record.

    I do not think evidence gathered from social media should be the most important evidence presented before a court. There needs to be very strict limits on the type of social media evidence that is admissible. Evidence from social media may save police a lot of time and money, and it can help them get closer to closing cases. It was because of tweets that police were able to find potential witnesses to a fatal shooting. [1]. However, on the flip side, attorneys can gather evidence from social media and twist the evidence to fit their theory of a case. Just like what has happened to Aaron Harvey when prosecutors tried to connect him to a gang through his use of a red shirt. [2]. Evidence from social media is great when it helps police catch a suspected thief who posted a photo of him/herself with everything they were able to get away with. However, evidence gathered from social media should be used to substantiate other evidence police or attorneys have already obtained. Evidence from social media should not be the be-all-end-all of evidence to win or lose a case.

    As you mentioned in your blog, there are a lot of obstacles needed to overcome authenticating evidence from social media. One step may be to obtain the metadata around the time a certain post was uploaded. I’m a bit out of my element when speaking on metadata, however, if it is possible to see where the post originated from, if any changes were made to that post, and when and where those changes came from, it may help to ensure that a third person with access to passwords and usernames did not hack an accused’s account. Another great way to not get convicted based off of evidence posted on social media would be to not post such incriminating evidence.

    I do not believe that prosecutors or any agent of the court should ever be allowed to create fictitious accounts to gather evidence that may be crucial to their case. If an agent of the court would not be allowed to communicate with someone in person regarding a certain matter, then they definitely should not be allowed to do so over the internet where miscommunication is bound to happen more often than not. Aside from the miscommunication issue, a person who finds out they were tricked by an agent of the court would most likely harbor mistrust for our justice system.

    [1] – http://www.nytimes.com/2014/02/16/sunday-review/social-media-a-trove-of-clues-and-confessions.html?_r=3.
    [2] – http://www.voiceofsandiego.org/topics/public-safety/facebook-posts-help-send-young-man-no-record-prison-life/.

  3. I think there are two primary issues that social media poses to courts when it comes to using them as evidence: weigh/value and authentication. Weight and value in terms of both how meaningful should courts consider what is found on social media platforms and in terms of time allocation for discovery/investigation. In terms of time allocation social media by its nature of being online, has the ability to be searched rapidly with computers such that huge amounts of data and information can be looked at very rapidly. On the other hand there’s so much potential information out there to find and so much information that is completely irrelevant that needs to be parsed through and it often takes time to realize what needs to be disregarded. Ideally investigating social media platforms would not take resources away from traditional investigations but that is obviously not going to happen in a world of constrained government budgets.

    Authentication online is a constant problem because anonymity online is both a sometimes difficult veil to pierce and changes how people act. Ensuring that posts and activity was actually done by the defendant at question is central to legitimate use of social media. At the same time in a world where we know that hundreds of thousands of people are misidentified already by eye witness testimony, social media might be preferable because it is often more tangible and better recorded than people’s own memories. At the same time when people believe they are anonymous we need to confront whether we accept that as a factor that might reduce their culpability for statements and posts that inflame, injure, or potentially imply guilt.

    I think the SCA should be extended beyond Facebook wall posts, to me that’s the least private thing on Facebook because the point of the wall is to communicate information to other people even if that’s just to friends.

    Fictitious accounts are something I think prosecutors should absolutely avoid because it would only serve to further enhance the view of lawyers was dishonest shysters. I think the tougher question is will law enforcement who we know often spend time online under pseudonyms for investigations of online crime platforms like the Silk Road and child pornography websites. At what point does their actions on those platforms cross a line where evidence gathered should be excluded because they acted improperly in drawing information out of suspects they have deceived about their identity.

  4. The evidence gathered from social media should be admissible in Court. I believe if you are careless enough to confess your crime online, it should not be excluded. Additionally, as the New York Times article highlighted, it can be helpful for finding potential witnesses or identifying assailants. [1] Especially, if you are outright threatening a person or persons, e.g. stating that you will shoot up a school, the police should have the right to intervene. [2] Of course, the right should not be overly broad and sexualized pictures of women in order to taint them as bad mothers or wives in custody or divorce proceedings should not be allowed in.

    Furthermore, I disagree with the court’s decision cited in the main blog. I do not think that the police should need a search warrant for private Facebook accounts. The standard to determine whether a search warrant is needed is whether the person subjectively believed that a right to privacy exists and whether such believe is objectively reasonable. Everything you put online is out there for everyone to see, there are so many ways that even a private post can become public. For example, another person can share screenshot of it. More importantly, most (probably all) social media sites keep a record of everything you post and share. Having that said, police should be allowed to gather evidence from private social media account but should not be allowed to use the evidence to fabricate a conclusion as California did when they arrested alleged gang members.

    California’s use of Penal Code 12.285 and the gathering of social media evidence to prosecute gang members was a misuse of electronic evidence and will unfairly target black youth. The article “Guilt by Association” gave examples on how a person can be entered into the California Gang Databank (CALGANG). Some of the examples were that a person needs to be ID’d as a gang member by a reliable source, being seen affiliating with a documented gang member, or frequenting gang areas, wearing gang dress, etc. A person needs to meet two characteristics in order to be entered in to CALGANG. It seems that everyone who lives in Lincoln Park meets at least one, frequenting gang areas, by default. Through electronic evidence the police will be able to find or fabricate a second characteristic a lot easier. Now, a police officer can say a person is affiliated with a gang member because they appear in one picture together or they were tagged in the same post. This is not the same as witnessing a person interact with an affiliated gang member. We all have pictures taken, whether they are online or not, with a group of people where we did not know every person. And most of us have that one friend that will tag everyone in every picture. Those things do not proof an affiliation with anyone. However, now the police can use such evidence and establish a connection. It lessens the burden of the State to dangerously low level. The head of the district attorney’s gang prosecution unit compared the internet to the youth’s Wild West. It gives the gang members the opportunity to brag about their crimes in posts and songs, publicize pictures with guns or gang signs. While some of the evidence might indicate or even prove gang affiliation and murder, the way the prosecutor is using the evidence is outrageous. Here, no one confessed to a murder or admitted to a gang membership. In the article it seems that the individuals’ posts were interpreted to show gang affiliation without outright stating it. I do not believe that this should be allowed as evidence in Court. Teenagers constantly brag and exaggerate things. Nowadays, they just are out of luck because their words are being documented online. [3] It is important to point out that in the previous examples were the police arrested an individual for stating that she will shot up the school, the girl admitted to the post and received a one month sentence for disorderly conduct. In California, no one admitted to the gang affiliation and none of the accused were involved in the murder, yet they are facing a life time sentence. The justice system already unfairly targets black youth, and gathering social media evidence will just open up another avenue from the system to do so.

    Lastly, I want to add that I don’t think in any circumstances should a prosecutor be allowed to create a fictitious person to gather evidence. Such behavior is pure fraud and deceit.

    [1] http://www.nytimes.com/2014/02/16/sunday-review/social-media-a-trove-of-clues-and-confessions.html?_r=3
    [2] http://arstechnica.com/tech-policy/2015/10/want-attention-and-jail-time-post-a-violent-threat-on-yik-yak/
    [3] http://www.voiceofsandiego.org/topics/public-safety/facebook-posts-help-send-young-man-no-record-prison-life/)

  5. I believe that the rules of evidence, to a large extent, are flexible enough to properly handle evidence from social media sites. That’s why I believe this evidence should be used in court. Though there are serious concerns with authenticity where a site is hacked, in most other cases it is not particularly difficult to identify where and when posts are made, [1] and it can be reasonably assumed that the use of login credentials ties any post to the owner of the posting account [2]. Further, defendants have ample opportunity to explain their admissions in court and to undercut the credibility of their opponent. Because of these procedural safeguards, the law surrounding admissions has generally supported admitting evidence with the idea that some issues of authenticity are best given to the jury as matters of weight. [3]. This by no means suggests that attorneys should disregard other forms of evidence, and they should continue to rely just as heavily on traditional sources, especially where information can corroborate what is discovered on social media.

    However, while social media evidence may theoretically be admissible, it may not be admitted consistently. Without better guidance on foundational issues, it is likely that admissibility decisions will hinge too much on a judge’s comfort level with ESI. One article suggested that laying a foundation is as easy as asking basic questions about where and when social media evidence was collected. [4], but I believe a more searching inquiry would be expected in the scenario of a hacked account. There, I would want to see IT experts testifying on the site’s tracking data and I would want a solid comparison between the instance when the evidence was posted and the majority of the user’s other activity on the site. I also believe that this is best accomplished by guidance form the Florida Rules of Civil Procedure. For better or worse, this evidence is used frequently [5], and with luck the common law will provide adequate guidance over time.

    As a partial solution, sites should be encouraged to securely store user’s metadata so that both sides of a dispute can better argue issues of authenticity. This may somewhat cut into the user’s privacy, and there is certainly a fuzzy line that should not be crossed, but I feel the burden of minor intrusions is far outweighed by the benefit of protection and judicial efficiency. Having this information on hand will allow for far better authentication steps, such as linking a GPS stamp with a timeline of the user’s day. This will also promote judges to require stronger foundations. Meta data is also a form of private information that should be protected by The SCA. This data is not generally shared publicly by websites.

    As for information that should be protected by the SCA, I believe the standard is already too lenient. I was surprised that Facebook wall posts would be considered private when the 1st DCA has found them to be public enough to broadcast written threats. [6]. However, going off the standard of the Facebook wall, I believe that anything short of a posting onto another user’s account (which is visible to the receiver’s friends) is protected by the SCA.

    It is understandable then, to me, that prosecutors would want to gain access to a defendant’s posts on other users’ walls/accounts. However, I think the court in Brockler was correct to find an improper misrepresentation. For that reason, I feel prosecutors should leave that kind of investigative work to law enforcement, but I do believe some leeway could be allowed for attorneys to keep an eye on juror activity. This of course would simultaneously create issues of potential and perceived fraternization, so it would be on the attorney to walk the tightrope.

    Finally, I believe it is okay to use social media to prove a Section182.5 conspiracy, just as it would be okay to prove any other claim or charge. However, I feel that there is an issue with the probative value of this evidence, especially in comparison to its extremely prejudicial effect. The Harvey case is a good example. There, Aaron Harvey clearly had nothing to do with furthering the murder which gave rise to the conspiracy. [7]. Thus, the probative value of pictures and Facebook friendships only goes to show that Harvey knew his neighbors and that he may have had a social relationship with them, something that should be obvious from his years of living in the Lincoln Park neighborhood. [8]. Meanwhile, the presentation of this evidence in the context of social media unfairly casts some disjoint friendships with gang members as a network. It entirely ignores a user’s other friends and the logical reality that someone might have a large variety of friendships (online as in person) without being identified by any singe relationship.

    [1] http://arstechnica.com/tech-policy/2015/10/want-attention-and-jail-time-post-a-violent-threat-on-yik-yak/ (eg. Yik Yak stores the user’s ip address, GPS coordinates from a posting device, the time and date of each post, and the user-string of the posting device).
    [2] http://apps.americanbar.org/litigation/litigationnews/trial_skills/030413-tips-admissibility-ESI.html(citing People v. Valdez, 201 Cal. App. 4th 1429, 1434–37).
    [3] See comments to Rule 801 (d)(2) (“Admissions by a party-opponent are excluded from the category of hearsay on the theory that their admissibility in evidence is the result of the adversary system rather than satisfaction of the conditions of the hearsay rule.”)
    [4] http://apps.americanbar.org/litigation/litigationnews/trial_skills/030413-tips-admissibility-ESI.html
    [5]See http://www.nytimes.com/2014/02/16/sunday-review/social-media-a-trove-of-clues-and-confessions.html?_r=2 (use of social media evidence is “skyrocketing” and a robust survey found 80% of law enforcement agencies utilize social media in criminal investigation).
    [6] See O’Leary v. State, 109 So. 3d 874, 874-75 (Fla. 1st DCA 2013)(holding that a threat posed by a defendant’s to his private Facebook account was considered “sent” for the purpose of Section 836.10, Fla. Stat.)(http://opinions.1dca.org/written/opinions2013/03-18-2013/12-0975.pdf).
    [7] http://www.voiceofsandiego.org/topics/public-safety/facebook-posts-help-send-young-man-no-record-prison-life/
    [8] Id.

  6. I do not see a strong reason why information gathered from social media should not be allowed in a courtroom as long as that information can be authenticated and is neither hearsay nor presents any legitimate constitutional problems. If this can be done then why not use such information? We are rapidly advancing into an age where social media is becoming the primary source of communication for a large percentage of the population of our country. Personally, I know that there are some people with whom I communicate exclusively through social media for convenience-related reasons. Banning the use of such communications in the courtroom would result in the creation of a means through which crime can be committed or planned without any fear of penalty. It is very possible, moving forward, that more advanced means of communications will be created, indeed it is a near certainty, the precedent set by disallowing law enforcement the ability to use social media and social media communications against criminal defendants could be dire.
    Regarding the authentication of evidence from social media, I very frankly have little clue how this could be done other than to suggest that law enforcement, experts in the law, and those who are most familiar with social media engineering and computer programming should find a way to do so using the least intrusive means possible. Perhaps there is a way to do this but I am in no way knowledgeable enough to know how this can be accomplished, however.
    I believe the Stored Communications Act should cover all means of communication over social media that the reasonable person would believe to be private at the time they created/posted that information. Thus if someone sends a private message, posts something on a privatized wall, on their own wall with tight privacy settings, and so forth – this information should require a warrant to collect. In the event that information was originally public but then became private, there should be some form of time limitation on when that information should then require a warrant. Any other information should be considered public and hence not require a warrant.

    Creating a fictitious account to gather important evidence to a case should only be allowed when the need is great, the information could be used to stop a crime from occurring, and only with a warrant. Beyond such a scenario the possible ramifications for allowing the creation of fictitious account for law enforcement purposes could be enormous. Doing so could result in great harm to individuals who are not even defendants or even suspects but rather the friends and families of the accused and could do irreparable harm to innocent people and even put them in harm’s way, especially in gang or violent crime related investigations with little to no guarantee that the evidence yielded would justify the risks taken.

  7. Social media has become a huge aspect of everyday life and it will not be going away any time soon. It is important to find ways to handle evidence that stems from social media. This is an area of the law that is fairly uncharted and I am interested to see how it plays out over time.

    In general, social media evidence should be admissible in court as long as the evidence was obtained from a public profile or with a warrant. That is the simpler part of dealing with social media evidence; the more challenging part is authenticity. I would imagine that if authenticity is a problem, like if someone is hacked, then there should be an investigation into which IP address the post came from to determine if it was truly a hack. Logistically, I am not sure that this is feasible. It might be too costly or time consuming to investigate a post that intricately. Corroborating witnesses or evidence might be the best way to authenticate social media postings.

    I think that the Stored Communications Act is absolutely necessary. Privacy settings on social media are there for a reason. If someone has their profile set to private, they should have a reasonable expectation of privacy that the information on their profile is not accessible by everyone. Facebook chats should be treated like text messages and a warrant should be required to access the information. These messages are intended only for the recipients, not for the masses. Things could get complicated if a friend shares, on his or her public profile, something that was intended to be private. For example, if two people are messaging over Facebook or text message, and the person who has a public profile takes a screenshot of the conversation and then posts it online, the person who intended for the conversation to be private has lost that confidentiality. It seems obvious that the screenshot should be admissible once it is on a public profile. But, what if the admissibility of the evidence is based on the context of the whole conversation and not just a screenshot? I could imagine the argument from both sides: (1) that the conversation has now been made public and so the whole conversation should be discoverable or (2) that since the entire conversation was intended to be private, the scope of the discoverable evidence should be limited to the screenshot. This is an issue that I am sure will have to be battled in court.

    As for prosecutors, there should never be a time that prosecutors are allowed to make fake accounts. There is nothing ethical about lying about one’s identity to obtain evidence. I understand the appeal of it, but if lawyers were allowed it to make false profiles to investigate individuals, it would open up Pandora’s Box to an abundance of unethical behavior. Social media should not be abused just to obtain important evidence. The lawyer must find a legal way to access the evidence, especially prosecutors. Prosecutors should always be held to a higher standard than most lawyers.

    The California law is absurdly broad and impossible to enforce, in my opinion. I think California legislature is attempting to charge people with gang affiliations in hopes that it will make gangs become less prevalent. However, it is ridiculous to charge people with conspiracy to commit a crime just because their friend committed a crime (to dumb it down to oversimplified terms). I hope that this law is struck down sooner rather than later because otherwise it will lead to numerous unconstitutional charges and damaged faith in the judicial system. Evidence of an individual’s involvement with a gang based on social media pictures and posts should be allowed, but only if the individual is charged with committing a crime and the gang affiliation is relevant to the charge, not if the individual’s friends committed a crime and he or she is guilty by a vague association.

  8. I do think evidence gathered from social media should be used in court. The use of this evidence can be dangerous, and i think there should be guidance and limits on what can be used and how it can be obtained. As we all know or all should know everything we post on the internet is public information, unless specifically specified as private. Therefore everything posted to public social media accounts should be fair game for prosecutors to use as evidence in a criminal case. Things become more complicated when information is posted to a social media account that is private. It is my understanding that information posted to a private social media account can still be used as evidence in a criminal case, but a judge must issue a warrant for the prosecutor to be able to obtain the private information. In my opinion there should be specific guidelines to when a judge may issue a warrant for a private social media post, to ensure that the social media account holder’s privacy rights are not violated.

    The next challenge after obtaining the information from social media accounts, is authenticating the information. Authenticating the information is extremely important to ensure that evidence obtained from social media is accurate and reliable. In authenticating the evidence courts should try to ensure the post was made by the actual account holder, and that the information posted is accurate. For example if the evidence is a photo identifying a robbery suspect it is critical that the identity of the person in the photo is accurate. Ways to authenticate evidence obtained from social media could possibly be achieved through the tracking of the IP address the evidence was posted from to try to ensure it was posted by the actual account holder. Another way evidence be authenticated is through facial recognition software to ensure the identity of people in photos are accurate.

    I believe that California penal code 182.5 could be helpful in limiting gang related crime if enforced properly. Being able to use photos from social media to show gang affiliation if used correctly could be effective in identifying members of a gang involved in criminal activity. Although this code can be helpful it also has the potential to target young black men and attack free speech. If used incorrectly the code could misrepresent young black men as being gang affiliated when they truly aren’t.

    I dont think there are any circumstances in which prosecutors should be allowed to create fictitious accounts to gather evidence. In all circumstances this is a misrepresentation and a violation of the ethics rules.

  9. Your post, specifically about the boy who has charged with a felony for making a terrorist threat, reminds me of a very hot topic in the news and on social media right now: clowns.

    Over the past month, a clown attack craze has quickly garnered traction across the nation as more and more clowns are sighted. It’s no secret that Americans have a deep seeded fear of clowns – evidenced by the scary clown cliche in Stephen King movies and American Horror Story. That fear has slowly grown from a weird Freudian phobia to an arguably legitimate terrorism threat.

    The first event happened in South Carolina, where clowns were reportedly attempting to lure children into the woods. Since then, clowns have been spotted on the side of roads, on college campuses, and on social media. More than two dozen states have had clown sightings reported to the police, and a number of those states have made arrests in these cases. For example, nine people were arrested for making a terrorist threat for their clown activities in Alabama.

    Terrorism may seem like a stretch to some people reading the news stories. Admittedly, standing on the side of the road in a creepy clown costume doesn’t seem to be as serious as a man threatening to build a bomb or shoot up a school. But the clowns may wreak just as much havoc as a terrorist wielding an actual weapon.

    Pennsylvania State University is the clearest example. More than 500 students took to the streets in a social media inspired frenzy to hunt down a reported clown sighting. Yes, more than 500 students. (Some on social media claimed as many as 6000 students, but police estimate at least 500.)

    The case is interesting, because what likely started out as a few friends fooling around lead to one social media post which turned into another and another and eventually lead to a large group of students roaming the streets to find this clown. That group then began to film the event and post it live on sites like Facebook, Twitter, and Snapchat. That, in turn, enticed more and more students to join in on the phenomenon.

    The police eventually showed up on the scene, but found no clowns. Penn State Police Sgt. Mike Nelson blamed social media, when reporting that no clown had been found and that this was all an elaborate hoax. “The cause of this specifically was social media. If there were any clowns with this many students out there and with our police responding to calls, we would have ran into it.”

    Other law enforcement officials have compared the clown frenzies to swatting, a phenomenon that largely grew in popularity because those that were partaking in the event posted it to social media and inspired others to partake in separate events themselves.

    While these events have not lead to any serious injuries or deaths yet, it’s easy to see how they could. Add the fact that those involved quickly take to social media to record these events, and it is clear to see how social media could easily become an evidentiary issue in a criminal clown sighting terrorism case or in an assault or murder case that resulted from a clown sighting incident.

    Aside from an evidentiary issue, social media could quite possibly be the scene of the crime. Similar to the terrorist threat made by the boy in your post, some clown-related arrests have been made within the last month because of threats made on social media. One 13 year old girl in Virginia contacted a clown online to kill her teacher. Other investigations have started to determine the identity of clowns who made cyber-threats to attack schools.

    The people most afraid of these terrorist clown-threats? Clowns. Professional clowns that make a living by dressing in white face paint, red hair, and big shoes say these social media posts are putting them in danger. They worry that police (or the general public) will potentially mistake them for a scary terrorist clown and report them, arrest them, or even shoot them out of fear. In fact, one professional clown has started a “Clown Lives Matter” facebook to raise awareness about this matter. Whether he’s bastardizing a legitimate social movement about law enforcement to serve his own agenda remains to be decided, but an argument could be made that the only real threat these creepy clowns actually pose is putting professional clowns out of business and in danger.

  10. In answer to the questions posed by the principal blogger:

    -Do you think evidence gathered from social media should be used in court or should attorneys focus on gathering evidence another way?

    Yes, I believe that evidence gathered from social media should be used in court; however, my only exception to this belief would be that the evidence gathered and used should still ascribe to the State and Federal Rules of Evidence and should be admissible. This means that, although tweets and facebook posts should (in my opinion) be more than fair game to be used as evidence, these statements would still need to bypass the general hurdles of admissibility, such as hearsay and relevance. Anne Marie also brings up a good point about authenticity. It is very difficult, without having the actual metadata itself, to determine the actual authenticity of posts on social media. How do we know it is actually the accused’s statements and not someone else? I guess there would have to be something like the equivalent of a records custodian from facebook or twitter that would need to come in and testify as to the authenticity of these statements. Or the individual themselves could testify as to those statement’s authenticity I guess, but I doubt that would fly…

    -The Florida Rules of Civil Procedure have been amended to include discoverability of electronically stored information (ESI), but do not provide guidelines for the admissibility of ESI. Is the current framework sufficient? Should Florida amend the rules to also include the admissibility of ESI? If so, what kind of rules would you propose?

    Yes, I agree, as admissibility (as I mentioned earlier) would be the most difficult hurdle to cross. I believe that the same rules should apply as they are now. The issue is not with the rules, the issue is with the institution which the rules apply to. This means that, similar to medical records or other documents, there needs to be a record custodian who can testify as to the admissibility and authenticity of these ESI’s. This would ultimately mean that these companies would probably have to hire specific people whose sole purpose is to monitor social media sites and track people’s IP addresses in order to determine authenticity. Again, this does not solve the problem of individuals who might steal someone else’s computer and post something incriminating on their behalf; however, I believe that the accused would have an opportunity to voice that in a trial. But again, it would be very difficult to prove….

    -Keeping in mind some of the challenges, what steps can be taken authenticate evidence from social media?

    Refer to above.

    -The Stored Communications Act protects Facebook wall posts. What other types of information do you think the SCA should protect? Facebook chats, messages posted on a friend’s wall, status updates, posts that were previously public then made private?

    I actually disagree with the SCA on this one. If I understand the Act correctly, only those statuses posed on a person’s wall are protected. However, I believe that statuses posted on someone’s wall actually should not be protected. If you think of it this way: people post wall statuses so that person can see. However, they also post on that person’s wall with the understanding that that post is now open for anyone who that person is friends with (depending on that persons privacy settings) can also see. So, basically the poster is posting with the understanding that their post has basically been opened up to the entire world. There should be no reasonable expectation of privacy for wall posts and, as such, they should not be protected. However, private posts or private chats or posts that were public but then made private are different. They are inherently PRIVATE. they are sent specifically to one or a select group of people, or they are designated as private with the intent being that there will be limits placed on who can see these messages and posts. This evinces a reasonable expectation of privacy and, as such, these types of communications should be protected.

    -Do you think there are any circumstances in which prosecutors should be allowed to create fictitious accounts to gather evidence crucial to their case?

    No, never. This flies in the face of the Model Rules of Professional Conduct. If they want information that badly, they can get a private investigator to do it for them, which would not violate the Model Rules.

    -What do you think about California Penal Code 182.5 and how prosecutors can gather evidence from social media to determine gang affiliation? Do you think it will unfairly target young black men? Is Penal Code 182.5 an attack on free speech?Y

    I do not think I fully agree with Cal Penal Code 182.5, if I am understanding this Code correctly. First, the hallmark of MOST criminal law is intent. There has to be some type of intent, whether it be reckless or negligent or knowing or flat out intentionally. However, reasonableness is also an issue. I do not think it is reasonable to hold fellow gang members who may be completely ignorant of a crime accountable for their fellow gang members’ misdeeds. First, it is not illegal to be in a gang. So this law basically punishes individuals for just being part of a gang. Furthermore, gang members have no control over what other members of the gang do. So, to punish a gang member for a crime they neither knew about nor committed is not reasonable and does not fit into the mold of justification. Also, most gangs require members to be members for life. Lets say I were to join a gang as a stupid 15 year old, but then 10 years later I stop associating with the gang and move on with my life. Another 10 years go by and I have a family living in the suburbs going about my day. But then I find police at my door and I am arrested because someone in my gang committed a crime I knew nothing about? This makes absolutely no sense to me. I do think that prosecutors should be able to use social media to gather evidence to determine gang affiliation; however, that does not mean that that evidence is or should be admissible in court. And I think that most things unfairly target black men, so I wouldn’t be surprised if this Code also somehow did that… And as far as free speech, I think the way it is being used now is somewhat of an attack. Again, it is not illegal to be in a gang and people should be free to communicate that, if they so choose. Just like people are free to communicate their affiliation with the KKK, if they so choose. It is all about HOW this information is being used that would or should determine whether it is an attack on free speech.

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