Emerging Legal Issues in Social Media: Part I

By Ken Strutin, Published on February 6, 2011

Social media is engaging masses of people in unprecedented ways. At the same time, the diversity of social networking applications has permeated and extended the range of legal investigation, discovery and litigation. As human activity is played out and recorded online, the laws governing cyber-behavior, privacy and discovery continue to evolve. And the distinction between public and private discourse blurs as the demand grows to fill limitless self-published cyber-columns.

Noteworthy means "worthy of notice or attention; notable; remarkable" -- literally jotting something down because it was worth remembering. This descriptor came into vogue barely a century after the birth of movable type, when self-publication and distribution were still daunting tasks. The advent of the printing press changed society by multiplying the written word exponentially, and it occurred before there was any reckoning of the avalanche of information to follow.1 The technologies of our era have put the power of the printing press into millions of hands. And they are creating a new environment for the practice and administration of law.2

The materials collected in this article aim to provide a sense of the emerging issues created by the crosshatch of social media and legal practice. They represent a current sampling of notable developments in law enforcement, law practice, civil and criminal litigation, and technology's influence on human behavior. Hopefully, these materials will offer some insights into the changes being wrought by the user dominated stage of the Information Revolution.3  

Due to the breadth of this topic, the article will be published in two parts. Part I covers select statutes, case law, ethics opinions, and news media. Part II will address pertinent materials appearing in professional journals and blogs, law reviews, reports, books and secondary resources.





1 See Vaughan Bell, Don't Touch That Dial!, Slate.com, Feb. 15, 2010 ("A respected Swiss scientist, Conrad Gessner, might have been the first to raise the alarm about the effects of information overload. In a landmark book, he described how the modern world overwhelmed people with data and that this overabundance was both 'confusing and harmful' to the mind. The media now echo his concerns with reports on the unprecedented risks of living in an 'always on' digital environment. It's worth noting that Gessner, for his part, never once used e-mail and was completely ignorant about computers. That's not because he was a technophobe but because he died in 1565. His warnings referred to the seemingly unmanageable flood of information unleashed by the printing press.")

2 Social media is also having a significant impact on the affairs of the departed. See, e.g., Jim Lamm, "Live" Funeral Video Broadcasting Over the Internet, Digital Passing, Jan. 31, 2011; Ken Strutin, Disposition of Digital Assets, N.Y.L.J., Jan. 25, 2011, at 5.

3 See generally Ken Strutin, Juror Behavior in the Information Age, LLRX, Dec. 26, 2010; Ken Strutin, Use of Social Media in Sentencing Advocacy, N.Y.L.J., Sept. 28, 2010, at 5; Ken Strutin, Pitfalls of Social Networking for Judges and Attorneys, N.Y.L.J., March 16, 2010, at 5; Ken Strutin, Pretexting, Legal Ethics and Social Networking Sites, LLRX, Oct. 5, 2009; Ken Strutin, Criminal Defense in the Age of MySpace and Facebook, The Defender (Harris County Criminal Lawyers Association), Summer 2009, at 18; Ken Strutin, Social Networking Evidence in a Self-Surveillance Society, N.Y.L.J., March 10, 2009, at 5; Ken Strutin, Criminal Law Resources: Social Networking Online and Criminal Justice, LLRX, Feb. 28, 2009.