Emerging Legal Issues in Social Media: Part II

This is the second installment of an examination of notable and new developments in social media and legal practice. Part One highlighted important statutes, case law, ethics opinions, along with extensive news media coverage of law-related social media issues. Part Two focuses on recent items that have appeared in professional journals and blogs, 1 law reviews, reports, books and secondary resources, along with references to current awareness sources. 2

PROFESSIONAL JOURNALS and BLOGS

  • Are Social Networking Sites Discoverable?, Product Liability L. & Strategy, Nov. 13, 2008
    "In sum, the trends in court decisions regarding the discoverability and admissibility of information located on a social networking site do not bode well for Peggy. Since she posted information about herself and her misadventures on the trampoline to her MyFazer page, her counsel will surely face an uphill battle to prevent its production. The moral of the story for Peggy is the same for all users of social networking sites. Although these sites provide users with a sense of intimacy and community, they also create a potentially permanent record of personal information that becomes a virtual information bonanza about a litigant's private life and state of mind. The converse thus becomes the moral for litigation counsel -- this new generational fount of potentially discoverable information should be high on the list of priorities when evaluating a new matter."

  • Are Social Media Snake Oil? The Battle Rages On, Nat'l L.J., Jan. 21, 2011
    "The time is long past for asking, 'Should we use social media?' The question today needs to be, 'How can we use social media effectively?'"

  • Banned from the Internet, Nat'l L.J., Oct. 11, 2010
    "Prohibiting a defendant on probation from conducting any business online is overly restrictive and not reasonably related to legitimate sentencing goals."

  • Barry Bonds Trial May Test Tweeting Jurors, Law Tech. News, Feb. 15, 2011
    "Knowing the urge will be great to take the case outside the box, lawyers on both sides want a stronger-than-usual warning to jurors to avoid internet research and social media during the trial. U.S. District Judge Susan Illston says she's open to going beyond the usual admonition, though the precise wording has yet to be unveiled."

  • Blogging & Chatting About Case Strategy Destroys Attorney-Client Privilege, Legal Skills Prof Blog, Dec. 6, 2010
    "Be careful about blogging and emailing confidential legal information! U.S. Law Week online reports:  A plaintiff who sent e-mails, posted a blog, and engaged in Gmail chat sessions through which she disclosed information about her attorneys' litigation strategy waived the attorney-client privilege for related information, the U.S. District Court for the Northern District of California ruled Oct. 22 (Lenz v. Universal Music Corp., N.D. Cal., No. 07-3783, 10/22/10). The lawsuit complains that Universal Music Corp. sent a wrongful Digital Millennium Copyright Act notice to YouTube, requesting the removal of a video depicting a toddler dancing to Prince's 'Let's Go Crazy.' According to the complaint Universal knew or should have known that the video was a self-evident non-infringing fair use under 17 U.S.C. S107." See also Loose Lips Sink Ships and Can Waive Attorney-Client Privilege, Law Librarian Blog, Nov. 30, 2010.

  • Court Rules Debt Agency Can't Contact Woman on Facebook, Law.com, March 11, 2011
    "A Florida judge has ordered a debt collection agency to not use Facebook or any other social media site in an attempt to locate a woman over a $362 unpaid car loan."

  • Courts Grapple with Discovery of Posts, N.Y.L.J., Feb. 15, 2001
    "Social media allows users to post their photos and videos online, and discuss their lives, health and interests. Indeed, Facebook recognizes that "one of the primary reasons people use Facebook is to share content with others. Examples include when you update your status, upload or take a photo, upload or record a video, share a link, create an event or a group, make a comment, write something on someone's Wall, write a note, or send someone a message."2 Sharing this personal information can be virtually instantaneous and, of course, worldwide. That, as might be expected, can lead to a host of litigation issues, including whether information that parties to a lawsuit have made available via social media is discoverable."

  • Customer Violated Software License by Letting Attorneys Use Application, Internet Cases, Oct. 27, 2010
    "The Compliance Store v. Greenpoint Mortgage Funding, — F.3d —, 2010 WL 4056112 (5th Cir. October 18, 2010) A federal court in Texas has decided a case that could have notable implications for both providers and users of software. The court took a narrow view of the rights that licensees of software have to authorize third parties (i.e., independent contractors) to use software on behalf of the licensee."

  • Defendant's Post-Plea Rant on Craigslist Costs Him Sentence Reduction for Accepting Responsibility, Sentencing Law and Policy, Nov. 29, 2010
    "The Eighth Circuit has an interesting little 'new-media' sentencing opinion today in US v. Wineman, No. 10-1121 (8th Cir. Nov. 29, 2010) (available here). . . . 'In this case, we agree with the district court that the Craigslist rant is inconsistent with any acceptance of responsibility by Wineman.'"

  • Facebook and the Fear of Worlds Colliding, Nat'l L.J., Nov. 18, 2010
    "How do privacy and sharing settings work on Facebook? Basically, they allow you to customize who sees what information on your Facebook page. What this means specifically is that you can create separate lists of contacts — one for friends and another for business contacts. Each will have unique privacy settings. Don't want business contacts seeing the not-safe-for-work (NSFW) pictures your old roommate published to your wall? Want to keep casual acquaintances from seeing pictures of your child's birthday party? With privacy settings, you can create two separate worlds on Facebook. Here's how you do it."

  • Facebook as a Fundamental Right?, Constitutional Law Prof Blog, Jan. 28, 2011
    "It is not only law students who believe facebook and twitter are 'fundamental rights.'  State Department Spokesperson P.J. Crowley, speaking to AlJezeera about the situation in Egypt, described 'social media' as a 'fundamental right, as clear as walking into a town square.'"

  • Facebook: Sex Offenders Need Not Apply!, Corrections.com, Feb. 9, 2011
    "'[S]ex offenders are prohibited from using Facebook. Take a look at their user agreement. Specifically: Statement of Rights and Responsibilities, 4. Registration and Account Security, Item 6, reflects: 'You will not use Facebook if you are a convicted sex offender.' Facebook goes a step further and provides a method for notifying them of convicted sex offenders on their site."

  • Facebook Stalking: The Next Big Thing in Law Firm Training, Findlaw, Mar. 2, 2011
    "As law students, job applicants and now (hopefully) associates, we all took on the role of Facebook stalker. Want to learn about your interviewer? Facebook stalk them. Want to get in good with your professor or partner? They've all got Facebook these days. Want to take down the suck-up stealing all your glory? Take 'em down with Facebook. It turns out that Facebook's positive uses aren't limited to helping you carry out your nefarious plans or digging up dirt in a divorce. It's actually the next big thing in jury selection, and you already have a leg up."

  • Facebook, Temporary Release and Preparing a Defense, CYB3RCRIM3, Mar. 4, 2011
    "Jeffries' motion asked that the U.S. Magistrate Judge: 'permit his temporary release to his attorneys' custody . . . so that he might prepare his defense. He states that on January 6, 2011, the Government provided previously undisclosed electronic data, purportedly relating to his Facebook account. Defense counsel maintain that they are not able to access the Defendant's Facebook account from their office computers, despite having his password, because of a security feature that requires the identification of photographs.'" United States v. Jeffries, 2011 WL 182867 (E.D. Tenn. Jan. 20, 2011)

  • Final GINA Regulations (Finally!) Published: Addresses Treatment of Acquisition of Genetic Information Via Social Media, Erickson's Social Networking Law Blog, Nov. 9, 2010
    "The Equal Employment Opportunity Commission today (finally!) issued final regulations implementing Title II (the employment provisions) of the Genetic Information Non-Discrimination Act of 2008 (GINA). As I mentioned in an earlier post, Title II took effect on November 21, 2009, the Commission published proposed regulations last year, but the final regulations were delayed. I also pointed out that employers would have to wait for the final regulations for the EEOC's treatment of information obtained via social networking sites and employees' social media profiles."

  • FINRA Issues Guidance on Blogs and Social Networking Web Sites, Erickson's Social Networking Law Blog, Jan. 27, 2010
    "FINRA -- the largest independent U.S. securities regulator -- issued Regulatory Notice 10-06, Guidance on Blogs and Social Networking Web Sites. The Executive Summary provides: 'Americans are increasingly using social media Web sites, such as blogs and social networking sites, for business and personal communications. Firms have asked FINRA staff how the FINRA rules governing communications with the public apply to social media sites that are sponsored by a firm or its registered representatives. This Notice provides guidance to firms regarding these issues.'"

  • Government and Social Media--Creating Meaningful Experiences, Corrections.com, Jan. 31, 2011
    "The bottom-line of the research? People posting comments on social media sites are as influential as having a face-to-face conversation with someone we know. Mass social commentary through websites can define issues. Mass commentary via social media can dominate mainstream media. What does this mean to those of us who produce websites? Unless we create truly meaningful experiences for people coming to our sites, we risk losing our influence."

  • Guide to Navigating the Discovery of Facebook Records Within the Boundaries of the Electronic Communications Privacy Act, The Whisper (DRI), Mar. 1, 2011
    "Facebook now has more than 400 million users who post status updates, view pictures, and write messages. As a Facebook user, I view Facebook as a way to keep in touch with old friends and connect with colleagues. However, as an attorney, I view Facebook as a gold mine of information about plaintiffs and potential witnesses. My protocol for new cases includes (1) reading the complaint, (2) Googling the plaintiff, and (3) searching to see whether the plaintiff has a Facebook account. But here's the catch – how do attorneys ethically access information about plaintiffs and witnesses from Facebook?"

  • How Private Is Facebook Under the SCA?, Law Technology News, Oct. 5, 2010
    "In 1986, Congress passed the Stored Communications Act as part of the Electronic Communications Privacy Act to address privacy issues attendant to the advent of the internet. Through the SCA, Congress intended to restrict disclosure of private communications by providers of electronic communications services. However, when Congress passed the SCA, the internet was in its infancy. The few networks available to consumers, such as Prodigy and America Online, were self-contained, and most people had never heard of the term e-mail, let alone utilized the limited form of electronic messaging that existed at the time. The World Wide Web did not yet exist, and it would be nearly a decade before the introduction of the web browser in the mid-1990s. . . . Despite huge technological advancements in the 25 years since passage of the SCA, and the ever increasing prominence of electronic communication in our society, Congress has not amended the SCA to keep pace with changing technology. Rather, courts have had to lead the charge in applying the decades old statute to modern internet technology and electronic communication disclosure issues."

  • Is It Constitutional to Criminalize Having a Facebook Page?, Sentencing Law and Policy, Jan. 30, 2011
    "The question in the title of this post is prompted by this local story from North Carolina, which is headlined 'Lawyers take on Net predator law.'"

  • It's Time to Level the Playing Field - The Defense's Use of Evidence from Social Networking Sites, Champion, Aug. 2010, at 14
    "If a client is in the crosshairs of a criminal investigation, chances are that law enforcement has already scoured Facebook, MySpace, Twitter, LinkedIn and other social networking sites to search for incriminating evidence. Several hundred million people have active Facebook and MySpace accounts. Unlike traditional Web sites, where users are limited to passive viewing, social networking sites permit users to create personal profiles; post photographs, videos, and audio clips; write blog entries and status updates; send and receive private messages; and link to pages of others. Across the country, law enforcement agents and prosecutors are effectively mining these sites for inculpatory evidence. But evidence from social networking sites is not just for the prosecution. Evidence from these sites can also bolster the defense."

  • Judge Uses Facebook To Research Litigant, Internet Cases, Mar. 9, 2011

    "We've all heard the stories about lawyers using social media to research jurors and to gather evidence about opponents. But here's a new twist: even judges look to Facebook to find information about the parties appearing before them."

  • Juror's Facebook Postings During Gang Trial Lead to Legal Morass & Suit Against Judge, Courthouse News, Feb. 15, 2011
    "A juror in a gang-related attempted-murder trial has sued the judge, claiming Superior Court Judge Michael Kenny violated his privacy by threatening to hold him in contempt unless he allows Facebook to give the defendant's attorneys Facebook postings the juror made during the trial. The plaintiff, Juror Number One, says in his federal complaint that Judge Kenny gave him until Valentine's Day to 'execute a consent form sufficient to satisfy the exception stated in Title 18, U.S.C. section 2702(b) allowing Facebook to supply the posting made by Juror No. 1 during trial.'" See also Calif. Juror Ordered to Turn over Facebook Posts, Bloomberg, Feb. 5, 2011; 18 U.S. Code S 2702(b)(3) and Facebook, CYB3RCRIM3, Feb. 21, 2011; Compelled Consents and Facebook, CYB3RCRIM3, Feb. 3, 2011. Cf. Facebook User Had Standing To Challenge Subpoena Seeking His Profile Information, Internet Cases, Feb. 8, 2011 (Mancuso v. Florida Metropolitan University, Inc., 2011 WL 310726 (S.D. Fla. Jan. 28, 2011)).

  • Juror Study Shows More of a BlackBerry Effect than a 'CSI' Effect, ABA Journal Law News Now, Feb. 8, 2011
    "The chief judge of Washtenaw County in Ann Arbor, Mich., had heard a lot about the so-called CSI effect—said to increase jurors' expectations that technology can solve crimes with lightning speed, just as it happens on the television show CSI. But he hadn't seen the evidence. So Judge Donald Shelton devised two studies of people called for jury duty, and found more of a BlackBerry effect, NPR reports. 'The more sophisticated technological devices that jurors had,' Shelton said, 'the higher their expectations for the prosecutors to present evidence.'" See also Generations and Their Gadgets (Pew Internet & American Life Project Feb. 3, 2011)

  • Labor Board Backs Worker Who Criticized on Facebook, Wall St. J., Nov. 10, 2010
    "The National Labor Relations Board [NLRB] is taking a stand on employees' rights to post negative comments about supervisors on social networking sites, alleging that a company illegally fired a worker for criticizing her boss on Facebook. The agency disclosed the complaint last week against ambulance service American Medical Response of Connecticut Inc. . . . The agency said its investigation found that the employee's Facebook postings constitute 'protected concerted activity' and alleges the company maintained and enforced an overly broad blogging and internet policy that contained unlawful provisions." See also NLRA May Protect Your Employees' Facebook Rants (Regardless of Union Status!), Social NetworkingLawBlog.com, Dec. 9, 2010; Labor Board Settles Suit of Woman Fired Over Facebook Posts Criticizing Her Boss, ABA Journal Law News Now, Feb. 8, 2011

  • Lawyers Scour Social Media to Pick Jurors, 8NewsNow, Mar. 1, 2011
    "You use your Facebook profile or Twitter feed to keep friends and family in the loop in your life. But lawyers may be scouring your likes, favorites and tweets to see if you might be best for their jury. It is a nationwide trend that may start taking off in Las Vegas, where both sides of the law use your Facebook posts to get you in the jury box."

  • Lawyers Suing Over Suspect's Shooting Death Seek Facebook Information for 57 Officers, ABA Journal Law News Now, Mar. 4, 2011
    "An Albuquerque, N.M., policeman who listed his job description as 'human waste disposal' on Facebook has caught the attention of lawyers who filed a wrongful death suit against the city for a police shooting in January 2010. The lawyers are asking the city to provide Facebook usernames and passwords of 57 police officers who were at the scene after a police detective shot and killed Iraq war veteran Kenneth Ellis, according to the Albuquerque Journal (sub. req.) and KOAT.com."

  • Legal Battle Brewing Over Subpoena of Juror's Facebook Page, Juries, Jan. 21, 2011
    "Apparently, Facebook has refused a subpoena request from defense attorneys to turn over the Facebook postings of a juror (Arturo Ramirez).  Defense attorneys want access to the juror's Facebook page because they believe he may have leaked information about the trial or was influenced by comments made by Facebook friends.  The defense attorneys represent reputed members of the Killa Mobb gang who were convicted of assaulting a man at a Sacramento gas station."

  • Model Jury Instructions for the Digital Age, Juries, Feb. 28, 2011
    "To address the growing problem of juror misconduct related to the Internet, Smartphones, Blogs, Social Networking Sites, etc., I [Prof. Thaddeus Hoffmeister] have drafted new jury instructions entitled, Model Jury Instructions for the Digital Age. These instructions, which are reprinted below, will also be published in my upcoming law review article, Google, Gadgets and Guilt: The Digital Age's Effect on Jurors." See also Judges Debate Online Access to Murder Defendants' Cases During Trial, The Morning Journal, Mar. 8, 2011

  • MySpace Alibi, CYB3RCRIM3, Sept. 29, 2010
    People v. Calderon, 2010 WL 3505971 (California Court of Appeals 2010). Defendant raised alibi defense to robbery charge claiming that he was playing poker on MySpace at the time.

  • One Verdict Is in for Tweeting from the Courtroom, Connecticut Law Tribune, Oct. 18, 2010
    "In an adventuresome experiment, New Haven Superior Court Judge Jon Blue is allowing reporters covering the trial of Steven Hayes to 'tweet' on the Twitter social network from their hand-held smart phones, and from laptop computers."

  • Political Power of Social Media, Foreign Affairs, Jan./Feb. 2011
    "Discussion of the political impact of social media has focused on the power of mass protests to topple governments. In fact, social media's real potential lies in supporting civil society and the public sphere -- which will produce change over years and decades, not weeks or months."

  • Probation Search Justified by Images on Defendant's MySpace Page, FourthAmendment.com, Sept. 30, 2010
    "Probation search was justified by defendant's MySpace page showing gang signs and two guns and cash. The probation search was valid without a search warrant. United States v. Romero, 2010 U.S. Dist. LEXIS 102089 (D. Kan. September 27, 2010)."

  • Searching for Details Online, Lawyers Facebook the Jury, Wall St. J., Feb. 22, 2011
    "Facebook is increasingly being used in courts to decide who is—and who isn't—suitable to serve on a jury, the latest way in which the social-networking site is altering the U.S. court system. Prosecution and defense lawyers are scouring the site for personal details about members of the jury pool that could signal which side they might sympathize with during a trial. They consider what potential jurors watch on television, their interests and hobbies, and how religious they are." See also Internet v. Courts: Googling for the Perfect Juror, N.Y. Times, Feb. 17, 2011; DA Will Check Facebook Profiles for Jury Picks, Houston Chronicle, Jan. 17, 2011

  • Seduced: For Lawyers, the Appeal of Social Media Is Obvious. It's Also Dangerous, ABA Journal Law News Now, Feb. 1, 2011
    "'There's an increase in the number of attorneys running afoul of professional conduct rules when they use social media,' warns Renee N. Knake, who teaches professional responsibility at Michigan State University College of Law. One reason is that more attorneys are using social media such as blogs, Facebook and Twitter. The ABA's 2010 Legal Technology Survey Report found that 56 percent of attorneys in private practice have a presence in an online social network like Facebook, LinkedIn, LawLink or Legal OnRamp. Only 43 percent had such an online presence in the center's 2009 survey and 15 percent in 2008. Another reason so many attorneys are running into ethics problems is that they simply don't know what they can and can't do in the realms of social media. There's much ambiguity on how the ethics rules apply to these new technologies."

  • Small Change: Why the Revolution Will Not Be Tweeted, New Yorker, Oct. 4, 2010
    "The world, we are told, is in the midst of a revolution. The new tools of social media have reinvented social activism. With Facebook and Twitter and the like, the traditional relationship between political authority and popular will has been upended, making it easier for the powerless to collaborate, cooerdinate, and give voice to their concerns."

  • Social Media Goes Viral on Capitol Hill, Roll Call, Feb. 6, 2011
    "The role of social media in Congressional leaders' messaging and outreach has exploded over the past few years, whether it be through tweets about floor schedule updates or on Facebook. But within that trend is a clear — and nonpartisan — divide between the savvy and those still in the dark."

  • In Social Media Postings, a Trove for Investigators, N.Y. Times, Mar. 2, 2011
    "As Twitter, Facebook and other forms of public electronic communication embed themselves in people's lives, the postings, rants and messages that appear online are emerging as a new trove for the police and prosecutors to sift through after crimes. Such sites are often the first place they go."

  • Social Networking and the Adversary Process (Gallagher Sharp 2010)
    "The internet has created a platform for a wide variety of new media. Among the most popular and most prolific is social networking. This type of new media essentially provides a realtime forum for the exchange of personal information in various contexts. These tools, and the information they provide, have had a profound effect on litigation and the adversary system. This presentation explores these effects, including the impact social networking has on claims handling, the obstacles social networking presents at trial, and the ethical concerns social networking raises."

  • Social Networking Sites: Subject to Discovery?, Nat'l L.J., Aug. 23, 2010
    "On May 26, a federal court issued an opinion in a discovery dispute that applies outmoded federal electronic privacy laws from the 1980s to Facebook and MySpace. The ruling could permanently change the way 'social networking' sites are viewed by businesses and those involved in litigation. The decision also appears to offer the first in-depth analysis on the effect of 'privacy settings' found on many social networking sites and whether information is protected from discovery by federal privacy laws."

  • Social Networks in Personal Injury Litigation, N.Y.L.J., Dec. 17, 2010
    "In the personal injury arena, information derived from social networking sites is most frequently sought or employed to contest a claim of physical limitation or emotional suffering, although it has, on occasion, been used by a plaintiff against a defendant as an alternative to more traditional website information in connection with representations concerning professional capabilities, inappropriate comments made by the professional or, in a case involving a University of Texas fraternity, the initiation activities posted by a fellow student which resulted in a student's death."

  • Study of Facebook Users Connects Narcissism and Low Self-Esteem, Scientific American, Nov. 2010
    "Social-networking sites offer users easy ways to present idealized images of themselves, even if those ideals don't always square with their real-world personalities. Psychology researcher Soraya Mehdizadeh has discovered a way to poke through the offline-online curtain: she has used Facebook to predict a person's level of narcissism and self-esteem."

  • UK Supreme Court Policy on Tweeting Etc. From Court, SLAW, Feb. 3, 2011
    "The Supreme Court of the United Kingdom has just released a policy statement concerning 'The Use of Live Text-Based Communications from Court'. The nub of the policy is simple and clear: [A]ny member of a legal team or member of the public is free to use text-based communications from court, providing (i) these are silent; and (ii) there is no disruption to the proceedings in court."

LAW REVIEWS

  • Civil Discovery of Social Networking Information, 39 Sw. L. Rev. 413 (2010)
    "Social networking via the Internet (sometimes called 'Web 2.0') has become, almost overnight, a major social, technological, and business phenomenon, in the United States and elsewhere. Use of new low-cost means to connect with friends, family and old acquaintances, to form new relationships, and to broadcast personal, social, financial, academic, and other information has come to rival even the massive cultural shift involved in widespread adoption of e-mail over the past twenty years. Continued development and expansion of social networking services and uses seem inevitable. For lawyers, the social networking phenomenon presents a new set of challenges. Social networking information can provide vital evidence in connection with disputes and regulatory proceedings. Indeed, such evidence may be the new 'smoking gun' in many cases. This Article briefly addresses issues surrounding the discovery of such information, and suggests some 'best practices' to deal with this new form of evidence."

  • Criminal and Civil Liability for User Generated Content: Craigslist, A Case Study, 15 J. Tech. L. & Pol'y 85 (2010)
    "Congress may have intended to definitively resolve the question of website liability by its passage of the Communications Decency Act of 1996 (CDA), but in light of Craigslist's recent capitulation to legal pressure, the time is ripe to revisit the question of the civil and criminal liability that websites risk by opening forums to the public. This Article argues that recent court decisions have already limited the extent of the protection websites enjoy from civil suits, and that the changes Craigslist has made to its 'Erotic Services' section places the website even further outside the immunity the company has hitherto enjoyed. In reaching its conclusion, this Article proceeds in two sections, considering first the extent of Craigslist's criminal liability, and then considering the nature of the civil liability to which Craigslist is now exposed."

  • Facebook vs. The Florida Bar (SSRN 2010)
    "This piece discusses social networking websites (e.g. Facebook, Twitter and MySpace) and their importance vis-a-vis the First Amendment in terms of communicating ideas (i.e. the market places of ideas), self-expression and discovery, and political expression and discussion. I emphasize the importance of this because the generation of law school graduates currently applying to take the bar is one of the first to grow up with ready access to the internet from a young age.
    I go on to examine the recent proposals of the Florida Board of Bar Examiners (FBBE) to screen the social network accounts of certain applicants to the Florida Bar. I argue that the guidelines are unconstitutionally vague and overbroad and as a result will have a chilling effect on speech if not clarified and the information on how the screening process works is then made easily available to bar candidates. I also seek to offer some ways in which it may be possible for a Bar Association to create rules for screen the social networking site accounts of individual applicants without running the risk that such screening will restrict or chill the first amendment rights of applicants. The focus is on the FBBE that is only because they were the first to announce such an ambitious plan. However, I believe the principles would also apply for any bar association seeking to screen the social networking site accounts of applicants."

  • Fourth Amendment and the Brave New World of Online Social Networking, 93 Marq. L. Rev. 1495 (2010)
    "This Comment evaluates whether social networking users maintain a reasonable expectation of privacy in their online social networking activity such that police scrutiny is subject to the Fourth Amendment's warrant requirement. Part II explores the contours of a social networking web site and describes its operation. This Part considers the origins of the social networking phenomenon and examines two of the largest social networking web sites, Facebook and MySpace, in some detail. Part III explains the social benefits derived from social networking and the risks involved, including the increasing risk of police surveillance. Part IV describes the current state of Fourth Amendment search doctrine and explains why it is a poor lens through which to analyze a user's online social networking content. Part V discusses the consequences should courts refuse to protect online user content. Finally, Part VI concludes that courts should recognize, in most circumstances, users' asserted privacy expectations in their online social networking content."

  • Fourth Amendment and Privacy Issues on the "New" Internet:Facebook.Com and Myspace.Com, 31 S. Ill. U. L.J. 95 (2006-2007)
    "This paper will provide a background of the Fourth Amendment issues surrounding the usage of Facebook and MySpace, and discuss the legality of potential searches conducted by police and other law enforcement officials. Section II of this paper will introduce and describe Facebook and MySpace, including the different features, uses, privacy policies, and privacy settings. Section III will then provide a background of Fourth Amendment search and seizure law in the United States and how some of the landmark Supreme Court cases and other relevant decisions might be used in determining Fourth Amendment rights when dealing with Facebook and MySpace profiles. Section IV will apply some of these Fourth Amendment holdings and compare these decisions to how a court would analyze police searches using profiles on the Web sites of Facebook and MySpace. Section V will then discuss whether the privacy policies of Facebook or MySpace may have any additional impact on an expectation of privacy. Section VI will finally conclude with a suggestion on where courts should draw the line between the need to protect individual privacy and the desire not to hinder effective police investigations."

  • Law School and the Web of Group Affiliation: Socializing, Socialization, and Social Network Site Use Among Law Students, 27 J. Marshall J. Computer & Info. L. 325 (2010)
    "Online social network sites ('SNS') have emerged as a significant socio-technical phenomenon in the past several years. Scholars from various disciplines have examined these sites to develop a better understanding of their social significance and implications from a variety of perspectives. Within the burgeoning field of SNS studies, one strand of work focuses on the place of SNSs in students' educational experiences and the potential pedagogical applications of SNSs. However, the SNS phenomenon generally, and its educational/pedagogical significance in particular, have received scant attention from legal scholars. This article examines the place of SNSs within the contemporary law school experience, through a case-study of students at one law school. The article gauges differences in Facebook by students' age, gender, race/ethnicity, and other characteristics and analyzes students' Facebook communications as they pertain to the performance of law student identity and role."

  • MySpace Isn't Your Space: Expanding the Fair Credit Reporting Act to Ensure Accountability and Fairness in Employer Searches of Online Social Networking Services, 16 Kan. J.L. & Pub. Pol'y 237 (2006/2007)
    "The advent and popularity of online social networking has changed the way Americans socialize. Employers have begun to tap into these online communities as a simple and inexpensive way to perform background checks on candidates. However, a number of problems arise when employers base adverse employment decisions upon information obtained through these online searches. Three basic problems or issues accompany searches of online profiles for employment decisions: (1) inaccurate, irrelevant, or false information leads to unfair employment decisions; (2) lack of accountability and disclosure tempts employers to make illegal employment decisions; and (3) employer searches of an employee's online social life violate an employee's legitimate expectation of privacy. . . . The original purposes of the Fair Credit Report Act ('FCRA') permit – and demand – its expansion to cover the potential problems for candidates and employees caused when employers search for a candidate or employee's online social networking profiles. This solution effectively strikes an agreeable balance between an employer's right to know about candidates for employment and its employees and an employee's or candidate's right to privacy and fair employment decision making."

  • On the Precip[ic]e of E-Discovery: Can Litigants Obtain Employee Social Networking Web Site Information Through Employers?, 18 CommLaw Conspectus 487 (2010)
    "This Note will address some of the substantive, procedural, and technical problems associated with using e-discovery to obtain information from an employee's social networking Web site activity conducted in the workplace. Little precedent exists for when an employer must produce the information it possesses on an employee's social networking activities at the workplace. Part II provides background information about social networking Web sites and how employee misuse of them in the workplace may impose liability upon an employer, thereby spurring a third party to seek discovery through the employer. Part III examines discovery requests to employers for their employees' social networking Web site accounts, the mechanisms through which the discovery may be produced and difficulties confronted in that process, and why the courts should limit such requests for discovery. Finally, Part IV concludes by outlining the issues that courts and litigants will face in handling discovery requests that seek an employee's social networking activities and suggests principles that should guide future analysis."

  • Social Networking and the Law, 31 Pace L. Rev. 1-463 (2011)
    This special issue of the Pace Law Review is dedicated to current scholarship on social media and its effects across the spectrum of legal practice, law making, constitutional rights and legal ethics.

REPORTS

  • Friends, Followers, and Feeds: A National Survey of Social Media Use in State Government (NASCIO 2010)
    "During July and August of 2010, NASCIO's [National Association of State Chief Information Officers] Social Media Working Group implemented a survey of social media adoption by state governments to clarify existing use of social media by states, capture best practices, and extend knowledge of how the tools are being deployed in state governments across the country. The survey examined adoption trends, current applications and expectations of social media technologies, the extent to which implementation is governed by formal policies or individual agency initiative, and perceptions of risk associated with social media tool use."

  • How Federal Agencies Can Effectively Manage Records Created Using New Social Media Tools (IBM Center for the Business of Government 2011)
    "Dr. [Patricia C.] Franks' report addresses the challenges of federal recordkeeping in the social media age. She describes the struggle of agency records managers to keep up with the information revolution, as well as the historical evolution of how records management and information technology have become both intertwined and yet separated by 'silos' in many agencies. She identifies the governance challenges, the policy challenges, the technology challenges, as well as the capacity challenges to address these issues. She concludes with recommendations for improving social media records management, and offers a series of best practices based on interviews with dozens of records managers, Web masters, and social media managers across the federal government."

  • New Media and the Courts: The Current Status and a Look at the Future (SSRN 2010)
    "The Conference of Court Public Information Officers [CCPIO] report on new media and the courts finds that more than one-third of state court judges and magistrates responding to a survey use social media profile sites like Facebook, while less than 10 percent of courts as institutions use social media for public outreach and communication. After a year of study and online collaboration, the report reveals a judicial branch that clearly recognizes the importance of understanding new media but is proceeding cautiously with concerns about effects on ethics, court proceedings and the ability to support public understanding of the courts."

  • Obtaining and Using Evidence from. Social Networking Sites. Facebook, MySpace, Linkedln, and More (CCIPS 2010)
    "The Justice Department released a presentation entitled 'Obtaining and Using Evidence from Social Networking Sites.' The slides, which were prepared by two lawyers from the agency's Computer Crime and Intellectual Property Section [CCIPS], detail several social media companies' data retention practices and responses to law enforcement requests. The presentation notes that Facebook was 'often cooperative with emergency requests' while complaining about Twitter's short data retention policies and refusal to preserve data without legal process. The presentation also touches on use of social media for undercover operations." (Source: Electronic Frontier Foundation (EFF))

  • Older Adults and Social Media (Pew 2010)
    "While social media use has grown dramatically across all age groups, older users have been especially enthusiastic over the past year about embracing new networking tools. Although email continues to be the primary way that older users maintain contact with friends, families and colleagues, many users now rely on social network platforms to help manage their daily communications -- sharing links, photos, videos, news and status updates with a growing network of contacts."

  • Who Should I Follow? Recommending People in Directed Social Networks (HP 2010)
    "A variety of social networks feature a directed attention or 'follower' network. In this paper, we compare several methods of recommending new people for users to follow. We analyzed structural patterns in a directed social network to evaluate the likelihood that they will predict a future connection, and use these observations to inform an intervention experiment where we offer users of this network new people to connect to. This paper compares a variety of features for recommending users and presents design implications for social networking services. Certain types of structural closures significantly outperform recommendations based on traditional collaborative filtering, behavioral, and similarity features. We find that sharing an audience with someone is a surprisingly compelling reason to follow them, and that similarity is much less persuasive. We also find evidence that organic network growth is very different from how users behave when they are prompted to connect to new people."

BOOKS

  • Find Info Like a Pro, Volume 1: Mining the Internet's Publicly Available Resources for Investigative Research (ABA 2010)
    "This complete hands-on guide shares the secrets, shortcuts, and realities of conducting investigative and background research using the sources of publicly available information available on the Internet. Written for legal professionals, this comprehensive desk book lists, categorizes, and describes hundreds of free and fee-based Internet sites. The resources and techniques in this book are useful for investigations; depositions; locating missing witnesses, clients, or heirs; and trial preparation, among other research challenges facing legal professionals. In addition, a CD-ROM is included, which features clickable links to all of the sites contained in the book."

  • Lawyer's Guide to Social Networking: Understanding Social Media's Impact on the Law (West 2010)
    "This product provides a comprehensive look at how social media is affecting the legal system. It examines the myriad ways in which information from sites like Facebook, MySpace, and Twitter is being put to use in everything from criminal and family law matters to personal injury, employment, and commercial cases nationwide. The author illustrates how the pervasive social networking phenomenon is redefining traditional notions of jurisdiction, duty, service of process, and legal ethics while using actual trial- and appellate-level cases to analyze the discoverability and admissibility of social media evidence."

  • Social Media for Lawyers: The Next Frontier (ABA 2010)
    "The world of legal marketing has changed with the rise of social media sites such as Linkedin, Twitter, and Facebook. Law firms are seeking their companies attention with tweets, videos, blog posts, pictures, and online content. Social media is fast and delivers news at record pace. Social Media for Lawyers: The Next Frontier provides you with a practical, goal-centric approach to using social media in your law practice that will enable you to identify social media platforms and tools that fit your practice and implement them easily, efficiently, and ethically."

SECONDARY RESOURCES

  • Expectation of Privacy in Internet Communications, 92 A.L.R.5th 15
    "The explosion of computer technology and communications has spawned a new area of litigation and legal concerns with regard to the constitutional expectation of privacy in Internet communications. An expectation of privacy has generally not been found to exist with regard to subscriber information provided by service users to their Internet service providers, records on individuals' Internet usage, or as to communications made on Internet websites. Nor, with limited exception, have courts generally found a reasonable expectation of privacy to exist in e-mail or electronic chat-room communications. In Com. v. Proetto, 2001 PA Super 95, 771 A.2d 823, 92 A.L.R.5th 681 (Pa. Super. Ct. 2001), no reasonable expectation of privacy was found to exist as to either e-mail messages sent by a man to a 15-year-old girl, nor to electronic chat-room conversations engaged in between such parties. In reaching this result, the court reasoned, with regard to the e-mail messages, that, much like a letter which is private when sealed, but the destiny of which generally lies in the control of the recipient after he or she receives and opens it, because the girl received the e-mail messages and could forward them to anyone, the sender had no reasonable expectation of privacy in them. With regard to the chat-room communications, the court found no reasonable expectation of privacy based, in part, on the reasoning that the communicator did not know to whom he was speaking, and that oftentimes individuals engaging in chat-room conversations pretend to be someone other than who they are. This annotation collects and discusses the cases which have considered the constitutional expectation of privacy in Internet communications."

  • Electronic Frontier Foundation (EFF)
    "From the Internet to the iPod, technologies are transforming our society and empowering us as speakers, citizens, creators, and consumers. When our freedoms in the networked world come under attack, the Electronic Frontier Foundation (EFF) is the first line of defense. EFF broke new ground when it was founded in 1990 — well before the Internet was on most people's radar — and continues to confront cutting-edge issues defending free speech, privacy, innovation, and consumer rights today. From the beginning, EFF has championed the public interest in every critical battle affecting digital rights."

  • FOIA: Social Networking Monitoring (Electronic Frontier Foundation (EFF))
    "EFF, working with the Samuelson Law, Technology, and Public Policy Clinic at the University of California, Berkeley, School of Law (Samuelson Clinic), filed suit on December 1, 2009 against a half-dozen government agencies for refusing to disclose their policies for using social networking sites for investigations, data-collection, and surveillance."

  • IACP Center for Social Media (International Association of Chiefs of Police (IACP))
    "In partnership with the Bureau of Justice Assistance, Office of Justice Programs, U.S. Department of Justice, the IACP launched its Center for Social Media in October 2010. The goal of the initiative is to build the capacity of law enforcement to use social media to prevent and solve crimes, strengthen police-community relations, and enhance services. IACP's Center for Social Media serves as a clearinghouse of information and no-cost resources to help law enforcement personnel develop or enhance their agency's use of social media and integrate Web 2.0 tools into agency operations."

  • Legal Problems Arising from Social Media: Selected Resources, Legal Informatics Blog, April 10, 2010
    "Here is a brief list of selected resources on legal problems arising from social media. The resources listed here concern problems for law-related individuals or organizations — such as lawyers, judges, jurors, legal witnesses, civil litigants, those accused of crimes, criminal investigators, courts, etc. — arising from the use of social media or similar digital communications technologies."

  • Social Media and the Courts (National Center for State Courts (NCSC))
    This is a resource guide published by the National Center for State Courts that contains links to materials on social media and its implications for judges, attorneys, juries, and related issues.

  • Social Media and Trial by Jury: Identifying Problems, Designing Solutions, (Bureau of Justice Assistance (BJA) 2011)*
    "People are constantly engaged online — surfing the Internet at home, at work and at the courthouse. While convenience and accessibility to information are unparalleled, our obsession with hand-held devices presents large challenges for the management of jury trials. For example, jurors' use of Internet-enabled devices can cause expensive mistrials, and Internet research done by lawyers may infringe upon the privacy of jurors. What can the bench and the bar do to deal with this new world of social media communication? Can we accommodate the proper use of texting, tweeting and the like during a jury trial? This webinar, moderated by Judge Gregory E. Mize, will help define the challenges and chart practical solutions. Panelists include Judge Dennis M. Sweeney and Professor Caren Myers Morrison."
    *The webinar was held on Feb. 8, 2011. To view the video archive, click here.

  • Social Networking Privacy (Electronic Privacy Information Center)
    "EPIC is a public interest research center in Washington, D.C. It was established in 1994 to focus public attention on emerging civil liberties issues and to protect privacy, the First Amendment, and constitutional values. EPIC publishes an award-winning e-mail and online newsletter on civil liberties in the information age - the EPIC Alert. We also publish reports and even books about privacy, open government, free speech, and other important topics related to civil liberties."

  • Validity of Adverse Personnel Action or Adverse Action Affecting Student's Academic Standing Based on Internet Posting or Expression, Including Social Networking, 49 A.L.R.6th 115
    "Freedom of speech and of the press rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public. The issue arises as to the validity of an adverse personnel action or an adverse action affecting a student's academic standing based upon the individual's Internet posting or expression. In Spanierman v. Hughes, 576 F. Supp. 2d 292, 238 Ed. Law Rep. 170, 156 Lab. Cas. (CCH) P60690, 49 A.L.R.6th 699 (D. Conn. 2008), for example, the court held that even if an Internet networking site could be considered an 'organization' for First Amendment purposes, there was no evidence that such organization purported to speak out on matters of public concern, as required to support a freedom-of-expressive-association claim of a nontenured high school teacher, whose contract was not renewed after his personal profile on the Web site and his activity on the Internet networking site were discovered. This annotation collects and discusses all of the cases which have considered the validity of adverse personnel actions or adverse actions affecting a student's academic standing based upon the employee's or student's Internet posting or expression, including information posted on social network sites such as Facebook or MySpace."

CURRENT AWARENESS BLOGS

  • Internet Cases: A Blog About Law and Technology
    "Evan Brown is a Chicago attorney with a focus on intellectual property and technology law. He is a graduate of the University of Denver College of Law and received his bachelor's degree in philosophy at Wabash College (Crawfordsville, Indiana). He is a frequent public speaker on issues relating to law and technology, and has published numerous articles on those topics. Evan is licensed to practice law in both Illinois and Colorado."

  • JOLT Digest: An Online Companion to the Harvard Journal of Law & Technology
    "We are the JOLT Digest, an online-only resource featuring short synopses of recent developments in all areas of law & technology, including significant cases and legislation in the United States and abroad. The Digest is designed to provide academics, practitioners and law students not only with timely access to important legal developments, but also with links to in-depth commentary on those issues."

  • Social Media Law Student
    "One goal of this site is to connect lawyers to new technologies in hopes of making the practice of law easier – both inside and outside the courtroom. This site serves as a resource regarding the latest legal technology within the legal profession."

  • Social Networking Law Blog
    "Megan J. Erickson, Esq. Here you'll find discussions, news, and insights related to online interactive media and the law."



1 It also includes noteworthy news articles that were posted after the publication of Part One.

2 This article does not address the advent of social media search engines or related issues. See, e.g., Clint Boulton, Google Social Search Spreads to Fight Facebook, eWeek, Feb. 17, 2011; Michael Calore, First Look at RockMelt, a Browser Built For Facebook Freaks, Wired, Nov. 7, 2010.