Emerging Legal Issues in Social Media: Part I

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.


  • Computer Fraud and Abuse Act (CFAA), 18 U.S.C. S1030 et seq.
    “The Computer Fraud and Abuse Act (‘CFAA’), 18 U.S.C. S 1030 (http://www.law.cornell.edu/uscode/18/1030.html), is an amendment made in 1986 to the Counterfeit Access Device and Abuse Act that was passed in 1984 and essentially states that, whoever intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains information from any protected computer if the conduct involved an interstate or foreign communication shall be punished under the Act. In 1996 the CFAA was, again, broadened by an amendment that replaced the term ‘federal interest computer’ with the term ‘protected computer.’18 U.S.C. S 1030 (http://www.law.cornell.edu/uscode/18/1030.html). While the CFAA is primarily a criminal law intended to reduce the instances of malicious interferences with computer systems and to address federal computer offenses, an amendment in 1994 allows civil actions to brought under the statute, as well.” See Chp 7 Privacy and Data Collection (b)(iii) Computer Fraud and Abuse Act (CFAA) in Internet Law Treatise (last modified Feb. 12, 2010)

  • Electronic Communications Privacy Act (ECPA), 18 U.S.C. S2510 et seq.
    “The Electronic Communications Privacy Act of 1986 (‘ECPA’), Pub. L. No. 99-508, 100 Stat. 1848 (1986), comprised three titles. Title I amended the 1968 federal wiretap statute to cover electronic communications. Title II of ECPA created a new chapter of the criminal code dealing with access to stored communications and transaction records, commonly known as the ‘Stored Communications Act‘ or ‘SCA.’ Title III of the ECPA covers pen registers and trap/trace devices.” See Chp 7 Privacy and Data Collection (b)(2.1) Electronic Communications Privacy Act of 1986 in Internet Law Treatise (last modified Feb. 12, 2010)

  • Stored Communications Act (SCA), 18 U.S.C. S2701 et seq.
    “The Stored Communications Act, 18 U.S.C. S 2701 (http://www.law.cornell.edu/uscode/18/2701.html) et seq., (the ‘SCA’) regulates when an electronic communication service (‘ECS’) provider may [disclose] the contents of or other information about a customer’s emails and other electronic communications to private parties. Congress passed the SCA to prohibit a provider of an electronic communication service ‘from knowingly divulging the contents of any communication while in electronic storage by that service to any person other than the addressee or intended recipient.’ S.Rep. No. 99-541, 97th Cong. 2nd Sess. 37, reprinted in 1986 U.S.C.C.A.N. 3555, 3591. As courts have held, the SCA ‘protects users whose electronic communications are in electronic storage with an ISP or other electronic communications facility.’ Theofel v. Farey-Jones, 341 F.3d 978, 982 (9th Cir. 2003). It ‘reflects Congress’s judgment that users have a legitimate interest in the confidentiality of communications in electronic storage at a communications facility.’ Id. at 982. Under 18 U.S.C. S 2701 (http://www.law.cornell.edu/uscode/18/2701.html) , an offense is committed by anyone who: ‘(1) intentionally accesses without authorization a facility through which an electronic communication service is provided;’ or ‘(2) intentionally exceeds an authorization to access that facility; and thereby obtains…[an] electronic communication while it is in electronic storage in such system.’ 18 U.S.C. S 2701(a)(1)-(2). However, it does not apply to an ‘electronic communication [that] is readily accessible to the general public.’ 18 U.S.C. S 2511 (http://www.law.cornell.edu/uscode/18/2511.html)(2)(g). See, e.g. Orin S. Kerr, A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It,, 72 Geo. Wash. L. Rev. 1208, 1220 (2004).” See Chp 7 Privacy and Data Collection (b)(ii) Privacy: Stored Communications Act in Internet Law Treatise (last modified Jan. 30, 2010)

  • ‘Unauthorized Access’ and the Computer Fraud and Abuse Act, N.Y.L.J., Oct. 12, 2010
    “The Computer Fraud and Abuse Act (CFAA), 18 U.S.C. S1030 et seq., was enacted in 1984 (and amended multiple times thereafter) to target hackers who accessed computers to steal information or disrupt network functionality. Over 25 years later, the interpretation of the statute continues as litigants attempt to expand the act’s reach to new factual scenarios in a rapidly changing computerized world. . . . This article discusses the CFAA generally and the definition of ‘unauthorized access’ under the act as it relates to employees’ misappropriation of company information and licensees’ sharing of login credentials for proprietary databases with unauthorized third-party users.”


  • Barnes v. CUS Nashville, No. 3:09-cv-00764 (M.D. Tenn. June 3, 2010)
    “In order to try to expedite further discovery regarding the photographs, their captions, and comments, the Magistrate Judge is willing to create a Facebook account. If Julie Knudsen and Michael Vann will accept the Magistrate Judge as a ‘friend’ on Facebook for the sole purpose of reviewing photographs and related comments in camera, he will promptly review and disseminate any relevant information to the parties. The Magistrate Judge will then close this Facebook account.”

  • Crispin v. Christian Audigier Inc., 2010 U.S. Dist. Lexis 52832 (C.D. Calif. May 26, 2010)
    “With respect to webmail and private messaging, the court is satisfied that those forms of communications media are inherently private such that stored messages are not readily accessible to the general public. Thus, the court reverses Judge McDermott’s order with respect to the Media Temple subpoena and the Facebook and MySpace subpoenas to the extent they seek private messaging. The Media Temple subpoena and those portions of the Facebook and MySpace subpoenas that sought private messaging are therefore quashed. With respect to the subpoenas seeking Facebook wall postings and MySpace comments, however, the court concludes that the evidentiary record presented to Judge McDermott is not sufficient to determine whether the subpoenas should be quashed. . . . Given that the only information in the record implied restricted access, the court concludes that Judge McDermott’s order regarding this aspect of the Facebook and MySpace subpoenas was contrary to law. Because it appears, however, that a review of plaintiff’s privacy settings would definitively settle the question, the court does not reverse Judge McDermott’s order, but vacates it and remands so that Judge McDermott can direct the parties to develop a fuller evidentiary record regarding plaintiff’s privacy settings and the extent of access allowed to his Facebook wall and MySpace comments.”

  • McCann v Harleysville Ins. Co. of N.Y., 2010 NY Slip Op 08181 (4th Dep’t Nov. 12, 2010)
    “In appeal No. 2, defendant appeals from an order denying its subsequent motion seeking to compel plaintiff to produce photographs and an authorization for plaintiff’s Facebook account information and granting plaintiff’s cross motion for a protective order. Although defendant specified the type of evidence sought, it failed to establish a factual predicate with respect to the relevancy of the evidence (see Crazytown Furniture v Brooklyn Union Gas Co., 150 AD2d 420, 421). Indeed, defendant essentially sought permission to conduct “a fishing expedition” into plaintiff’s Facebook account based on the mere hope of finding relevant evidence (Auerbach v Klein, 30 AD3d 451, 452). Nevertheless, although we conclude that the court properly denied defendant’s motion in appeal No. 2, we agree with defendant that the court erred in granting plaintiff’s cross motion for a protective order. Under the circumstances presented here, the court abused its discretion in prohibiting defendant from seeking disclosure of plaintiff’s Facebook account at a future date. We therefore modify the order in appeal No. 2 accordingly.”

  • McMillen v. Hummingbird Speedway, Inc., 2010 Pa. Dist. & Cnty. Dec. LEXIS 270 (Pa. Ct. of Common Pleas, Jefferson Cty. Sept. 9, 2010)
    “A Pennsylvania Court of Common Pleas has ordered the production of a plaintiff’s social network account passwords and usernames in the recent decision of McMillen v. Hummingbird Speedway, Inc., Case No. 113-2010 CD (Pa. Ct. of Common Pleas, Jefferson Cty. September 9, 2010).” See No Privilege for Information Posted on Social Network Sites — Court Orders Production of Plaintiff’s Social Network Account Usernames and Passwords, E-Discovery Law Alert, Nov. 29, 2010

  • Romano v Steelcase Inc., 2010 NY Slip Op 20388 (Sup. Ct. Suffolk County Sept. 21, 2010)
    “Defendant Steelcase moves this Court for an Order granting said Defendant access to Plaintiff’s current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information upon the grounds that Plaintiff has placed certain information on these social networking sites which are believed to be inconsistent with her claims in this action concerning the extent and nature of her injuries, especially her claims for loss of enjoyment of life.
    Thus, it is reasonable to infer from the limited postings on Plaintiff’s public Facebook and MySpace profile pages, that her private pages may contain materials and information that are relevant to her claims or that may lead to the disclosure of admissible evidence. To deny Defendant an opportunity access to these sites not only would go against the liberal discovery policies of New York favoring pre-trial disclosure, but would condone Plaintiff’s attempt to hide relevant information behind self-regulated privacy settings.”

  • United States v. Forde, No. 09-4704 (4th Cir. Jan. 10, 2011)
    “Forde’s string of possibilities about the origin of the Twitter posting — that the foreperson possibly talked to her husband, who possibly talked to his friend, who possibly took to Twitter in response to what the husband possibly told him — is nothing but speculation and thus falls far short of establishing reasonable grounds for investigation. The district court therefore did not err by denying Forde’s request for an evidentiary hearing to investigate his claim.” See Tweet by Friend of Husband of Jury Foreperson Did Not Taint Jury Trial, Internet Cases, Jan. 13, 2011

  • United States v. Wineman, No. 10-1121 (8th Cir. Nov. 29, 2010)
    “In this case, we agree with the district court that the Craigslist rant is inconsistent with any acceptance of responsibility by Wineman. In the rant, Wineman places responsibility for his offense on the ‘addicts’ who bought his product and on the unnamed officials who denied him disability benefits. Wineman’s only regret appears to be that law enforcement officers and informants had the temerity to disrupt the methamphetamine ‘service’ he provided to his community, a service he equates to the local ‘gas station or grocery store.’ This is far removed from ‘a recognition and affirmative responsibility for the offense and sincere remorse.’ Nguyen, 52 F.3d at 194 (quoting Knight, 905 F.2d at 192).”


  • ABA Standing Comm. on Ethics and Prof. Resp. Op. 10-457 (2010)
    “Websites have become a common means by which lawyers communicate with the public. Lawyers must not include misleading information on websites, must be mindful of the expectations created by the website, and must carefully manage inquiries invited through the website. Websites that invite inquiries may create a prospective client-lawyer relationship under Rule 1.18. Lawyers who respond to website-initiated inquiries about legal services should consider the possibility that Rule 1.18 may apply.”

  • Ass’n Bar City of NY Comm. on Prof. Ethics Op. 2010-2
    “A lawyer may not attempt to gain access to a social networking website [of an unrepresented witness] under false pretenses, either directly or through an agent.”

  • NYS Bar Ass’n Comm. on Prof. Ethics Op. 843 (2010)
    “A lawyer representing a client in pending litigation may access the public pages of another party’s social networking website (such as Facebook or MySpace) for the purpose of obtaining possible impeachment material for use in the litigation.”

  • Phila. Bar Ass’n Prof. Guidance Comm. Op. 2009-02
    “Turning to the ethical substance of the inquiry, the Committee believes that the proposed course of conduct contemplated by the inquirer [asking third person to visit opposing witness Facebook and MySpace pages without revealing affiliation or purpose] would violate Rule 8.4(c) because the planned communication by the third party with the witness is deceptive. It omits a highly material fact, namely, that the third party who asks to be allowed access to the witness’s pages is doing so only because he or she is intent on obtaining information and sharing it with a lawyer for use in a lawsuit to impeach the testimony of the witness. The omission would purposefully conceal that fact from the witness for the purpose of inducing the witness to allow access, when she may not do so if she knew the third person was associated with the inquirer and the true purpose of the access was to obtain information for the purpose of impeaching her testimony.”

  • ABA Comm’n on Ethics 20/20 Working Group on the Implications of New Technologies (Sept. 20, 2010)
    “The Commission seeks to determine what guidance it should offer to lawyers regarding their use of social and professional networking sites, especially when lawyers use those sites for both personal and professional purposes. The Commission’s guidance could take the form of a policy statement that could be submitted to the House of Delegates for its adoption or a white paper that explains the extent to which lawyers’ use of networking sites should be considered a form of lawyer advertising. Alternatively, or in addition, the Commission could propose amendments to the Model Rules in Article 7 or their Comments in order to clarify when communications on networking sites are subject to the Rules of Professional Conduct as well as the difference between advertising and solicitations in this context. The Commission invites comments on whether it should, in fact, offer guidance in this area, and if so, what type of guidance the Commission should offer.” [close date for comments was Dec. 15, 2010]

  • Ethics of Social Networking Discovery, N.Y.L.J., Nov. 2, 2010
    “Just like conducting Westlaw or Lexis due diligence on an individual, social networking sites need to be reviewed as part of discovery protocol when seeking to obtain relevant information concerning a person or entity. Such searches should not be limited to being performed only in connection with personal injury litigations, but equally should extend, for example, to commercial, product liability, intellectual property, restrictive covenant and employment disputes.”

  • Social Media Data: Discoverability and Ethics, N.Y.L.J., Dec. 14, 2010
    “This article discusses social networks generally, the discovery of social network accounts in civil litigation, and the recent ethical opinions of local bar associations seeking to guide members concerning the informal discovery of the social media accounts of unrepresented parties and witnesses.”

  • Disciplining Attorney for Abuse or Misuse of Computer Technology, 46 A.L.R.6th 365
    “A lawyer’s requirement to adhere to the proper standards of professional responsibility necessarily extends to actions involving computers, e-mail, the Internet, and all modern high-tech devices. Nevertheless, many attorneys have violated various ethical guidelines and disciplinary rules in this area, sometimes because of a mere lack of familiarity with computer hardware or software, but most often because they thought that, due to the solitary nature of computer work, their deliberate activities were secret and would not be discovered. For instance, in Lawyer Disciplinary Bd. v. Markins, 222 W. Va. 160, 663 S.E.2d 614, 46 A.L.R.6th 665 (2008), the Supreme Court of Appeals of West Virginia held that a suspension of license to practice law for a period of two years was warranted as a sanction for an attorney in repeatedly accessing the confidential e-mails of seven other attorneys at his wife’s law firm without their knowledge or permission, as this action violated a rule of professional conduct deeming it professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, and a rule providing that it was professional misconduct for a lawyer to commit a criminal act that reflected adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects. Other courts have reached varying conclusions as to appropriate discipline for an attorney’s misconduct in connection with computers and the Internet, as the following annotation illustrates.”


  • Android App Forwards Private Text Messages, NY Times, Oct. 27, 2010
    “A new Android application released Wednesday, Secret SMS Replicator, when secretly installed on a cellphone, will forward all text messages to any other phone without the owner’s knowledge. . . . Update: While you don’t need anyone’s approval to get into the Android Market, the dominant store for Android apps, you do need to follow the rules, and apparently Secret SMS Replicator does not do that. A Google spokesman said via e-mail that the application had been suspended effective Wednesday evening because it ‘violates the Android Market Content Policy.'”

  • Be Careful Who You Friend on Facebook, Criminal Justice, Sept. 8, 2010
    “When someone says to ‘be careful’ on Facebook, most people likely interpret that to mean ‘don’t let your friends tag you in any of those bachelor party pics if you ever want to get a decent job.’ But while the consequences of ill-considered social networking decisions can be severe — dear god, did I just let my ex know I’m watching a Battlestar Gallactica marathon on Saturday night? — a federal court has upped the stakes, ruling that friending the wrong person online can be enough to put a person behind bars. Meanwhile, a judge in Alabama has ruled that an inappropriate status update can be punished with more than just a snarky comment, but with actual, welcome-to-counterinsurgency! military service. Social networking has moved past the innocent days of LOLcats and cute dog pictures, that’s for sure.”

  • California Town Abandons Facebook Page Amid Legal Concerns, ABA Journal Law News Now, Aug. 24, 2010
    “The city of Redondo Beach, Calif., is abandoning its Facebook page after hearing about potential legal problems. The city council voted to ditch the page last week after City Attorney Mike Webb outlined his concerns about the First Amendment and state legal requirements, the Daily Breeze reports.”

  • Can Carrier Block Texts Based on Content? T-Mobile Tells Federal Court the Answer Is Yes, ABA Journal Law News Now, Sept. 23, 2010
    “In what the Threat Level blog of Wired describes as the first federal case addressing whether wireless providers are permitted to block text messages based on their content, T-Mobile USA Inc. argued in a filing (PDF) yesterday in federal court in Manhattan that it does have this power. The issue arises in battle between the wireless carrier and a texting service, which signs up customers for so-called ‘short code’ services, in a Southern District of New York case that tests the limits of currently unclear Federal Communications Commission rules about network neutrality.”

  • Can You See Me Now?, Crime Report, Aug. 8, 2010
    Location-based social networks using geotagging technology are a cool way of letting friends and family keep track of you—and as a law enforcement tool, they can protect public safety. But when we share, do we really know who’s watching?

  • Canadian Lawyer Told to Hand Over Computer Used to Create False Online Personas, ABA Journal Law News Now, Aug. 20, 2010
    “A crusading Canadian human rights lawyer has been ordered to turn over a laptop computer he used to create false personas on far-right websites to search for evidence that he may have secretly authored a racist comment against a black Canadian senator from Toronto.”

  • Cheshire [CT] Appeal Will Point to Twitter, N.Y. Times, Dec. 1, 2010
    “There were half a dozen of them typing away in the courtroom rows. Minute by minute, they sent out reports of gruesome testimony via Twitter. In the end, the defense says, there were more than 140,000 Twitter messages about the trial that dealt with rape and children tied to their beds in a house that was set ablaze. . . . One of the most provocative [appeals issues] is that the intense reporting on the trial — including mainstream reporters’ extensive use of Twitter — created a ‘circus atmosphere’ and such widespread, instant saturation with inflammatory details that the jury was improperly swayed by public passions. The claim could force appeals judges to grapple with the question of whether new technology requires new courtroom rules.”

  • Convicted Murderer Justin Walker Used a Blackberry to Talk to Friends on Facebook While in Prison, ABC News, Dec. 1, 2010
    “Earlier this week, prison officials were notified by a local television station that [Justin] Walker [convicted of murder and sentenced to thirty years in prison] had managed to maintain a Facebook page from inside his cell at Oklahoma State Reformatory. He has since been transferred to a more secure prison block. His Facebook account chronicles his friendships with people on the outside as well as his life behind bars. Now on his fifth year in prison, Walker has been on Facebook since at least November . . . .”

  • Cop’s MySpace Page Cited in Shooting Death, Courthouse News, Jan. 27, 2011
    “A Louisiana deputy sheriff who shot a man to death had a ‘documented history of unprovoked violence,’ and the Livingston Parish Sheriff should have known it because of the violent nature of the deputy’s MySpace page, the family of the late Gerald Rice claims in Federal Court.”

  • Cops Use Facebook to Probe 1984 Lynbrook Cold Case, Newsday, Nov. 10, 2010
    “Police gained new interest in the Morrissey case recently when they learned that people were reminiscing about their days spent at the Hot Skates Rink on the roller rink’s Facebook page – and the cases came up in the chatter.”

  • County Experiments With Monitoring Social Media in Emergencies, Government Technology, Sept. 23, 2010
    ” Rather than constantly scouring the Web for news and updates during emergencies, Catawba County, N.C., is trying to track that data and other valuable information on Twitter and Facebook. County programmer analyst Lee Yount experimented with the practice during the recent Hurricane Earl that buffeted North Carolina’s coast.”

  • DA Will Check Facebook Profiles for Jury Picks, Houston Chronicle, Jan. 17, 2011
    “The Cameron County District Attorney’s Office will begin utilizing a new tool in the jury selection process, courtesy of social media. The district attorney’s office plans to use prospective jurors’ Facebook profiles and postings when considering whether an individual is qualified to sit on a jury.”

  • Employers Tread a Minefield, Wall St. J., Jan. 21, 2011
    “Facebook gaffes that can cause trouble in the workplace aren’t unique to drunken college students anymore. As more companies and their workers tap into the world of blogs, Twitter and Facebook, employers are tripping over legal potholes in social media.”

  • Ex-St. Louis Officer Enters Plea in Illinois Shooting, St. Louis Today, Aug. 30, 201
    “Watkins [defendant’s attorney] sought at one point in Pour’s criminal case to subpoena records of 22 people from the Facebook social networking web site. They included police officers who investigated the shooting, as well as other potential witnesses, Watkins said. Attorneys for Facebook argued that federal law prevented Facebook from disclosing the material and Associate Judge James Hackett agreed in a July ruling. He said disclosure was barred by the Electronic Communications Privacy Act. He also found that the request was vague and overly broad and would place an undue burden on Facebook.”

  • Facebook Flubs Make for Salacious Legal Cases, St. Petersburg Times, Oct. 15, 2010
    “Our obsession with posting every second of life online has brought a wave of serendipity for lawyers. Their jobs have gotten more salacious in the past few years, and easier in some ways. People make it simple. They say child support is too high, then post photos of a new Lexus. They claim to be home with the kids, then turn up tagged in sloppy bar photos.”

  • Facebook in Privacy Breach, Wall St. J., Oct. 18, 2010
    “Many of the most popular applications, or ‘apps,’ on the social-networking site Facebook Inc. have been transmitting identifying information—in effect, providing access to people’s names and, in some cases, their friends’ names—to dozens of advertising and Internet tracking companies, a Wall St. J. investigation has found. The issue affects tens of millions of Facebook app users, including people who set their profiles to Facebook’s strictest privacy settings. The practice breaks Facebook’s rules, and renews questions about its ability to keep identifiable information about its users’ activities secure.”

  • Facebook’s Social Inbox: Changing Communication Forever, CMS Wire, Nov. 16, 2010
    “Is Facebook’s new messaging system an e-mail replacement? As CEO Mark Zuckerberg so concisely put it at the platform’s official announcement event yesterday, ‘No.’ What it is, however, is a system that’s going to change communication as we know it, forever. Here’s a look at why.”

  • Idiot’s Guide to Hijacking Facebook Profiles, Atlantic Wire, Oct. 25, 2010
    “A small-time Web developer in Seattle has built an easy-to-use software program that allows users to hack into other people’s Facebook accounts. The program is called Firesheep and it exists as a Firefox add-on. It gives users full access to other people’s accounts, including pictures, wall posts and messages. Amazon, Windows Live, Twitter and scores of other sites are also vulnerable to Firesheep.”

  • In India, Using Facebook to Catch Scofflaw Drivers, NY Times, Aug. 1, 2010
    “The [New Dehli] traffic police started a Facebook page two months ago, and almost immediately residents became digital informants, posting photos of their fellow drivers violating traffic laws. As of Sunday more than 17,000 people had become fans of the page and posted almost 3,000 photographs and dozens of videos.”

  • Innocent Until Tweeted: Social Media Tests Rules in Jury Trials, Vancouver Sun, Jan. 7, 2011
    “The Canadian Judicial Council, which polices the country’s 1,100 federally appointed judges, is looking at how to handle social media in the courtroom, including its use by the media, the public, courtroom staff and even juries, said Martin Felsky, a veteran of the council’s technology advisory committee.”

  • Insurers Are Scouring Social Media for Evidence of Fraud, Los Angeles Times, Jan. 25, 2011
    “Social-networking websites such as Facebook and MySpace have become the go-to places where employers, college admissions officers and divorce lawyers can do background checks. Armed with the information, police have caught fugitives, lawyers have discredited witnesses and companies have discovered perfect-on-paper applicants engaged in illegal or simply embarrassing behavior. And now insurance companies are exploiting the free, easily accessible websites.”

  • Is Killer Using Facebook From Prison?, CBS 6, Jan. 26, 2011
    “The Virginia Department of Corrections has launched an investigation to find out how convicted killer Joey Parrish is posting messages on his Facebook page.”

  • Juror on Hot Seat, Accused of Web-Surfing; Claimed Research May Cause Capital Murder Case Mistrial, ABA Journal Law News Now, Jan. 14, 2011
    “A mistrial may have [to] be declared in a Pennsylvania capital murder case over a juror’s reported Web-surfing.” See Juror Could Face Charges for Online Research, Reuters, Jan. 19, 2011

  • Keep It Secret…Keep It Safe: Good Advice for Corrections and Social Networking, Corrections.com, Dec. 20, 2010
    “For sometime it has been sound advice not have family pictures displayed in one’s office or workstation. This was a safety precaution. After all one didn’t want an offender to know about your family or what they looked like just in case they decided to retaliate against them. Likewise, it was professionally not a good idea to discuss personal details or specifics of one’s life with their correctional clients.”

  • Lacey Police Arrest Yelm Man After Nude Photos of Ex-Wife Posted on Facebook, News Tribune, Sept. 18, 2010
    “Lacey [Washington state] police arrested a Yelm man Thursday on suspicion of felony computer trespass and stalking after he allegedly hacked his ex-wife’s Facebook account and posted nude pictures of her on the online social network, where her friends and relatives could see them.”

  • Law Firm Uses Social Network and Billboards to Raise Money for Client’s Cause, ABA Journal Law News Now, Oct. 22, 2010
    “The environmental law firm Earthjustice is raising money to help endangered species with the help of a generous donor, free billboards and a social networking website.”

  • Legal Debate Entangles Facebook, Juror, Alleged Gang Members, Technorati, Jan. 19, 2011
    “A Northern California criminal defense attorney has taken up the cause of a juror whose Facebook postings have put him in a legal wedge between lawyers for the social networking giant and lawyers for reputed members of a street gang.”

  • Live From The Jury Box, It’s Steve Martin!, N.Y. Times, Dec. 22, 2010
    “Leave it to Steve Martin to turn jury duty into performance art. Tweeting over the last couple of days, the stand-up comedian and movie star has regaled his 380,000-plus followers on Twitter with observations inspired by the legal process unfolding before him.”

  • Mark Zuckerberg’s Facebook Page Apparently Hacked, Computer World, Jan. 26, 2011
    “Facebook founder Mark Zuckerberg appears to be the second high-profile victim of a hacking attack on his own Facebook page, following a similar account takeover early this week targeting French president Nicolas Sarkozy.”

  • Montgomery County Takes to Twitter, Houston Chronicle, Jan. 6, 2010
    “People caught driving while intoxicated in Montgomery County are being busted in more ways than one. The county district attorney’s office is now calling them out in the status-sphere by posting their names on its Twitter page for everyone to see.”

  • Mo. Legislator’s Facebook Hacked With Unflattering Status Update, St. Louis Today, Jan. 21, 2011
    “One freshman Missouri legislator says her Facebook account was compromised Thursday when someone used the account to post an embarrassing status update on her page.”

  • New Court of Shame Is Online, N.Y. Times, Dec. 23, 2010
    “Social media is the new court of public opinion. With the freedom to post just about anything — and say whatever without reprisal — online sites like Facebook and Twitter are making it easier to shame people whose behavior might otherwise remain unknown or slip by unnoticed. Police departments have begun posting the names and photos of people arrested for crimes to inform a global public and deter unlawful behavior.”

  • Ohio Prisons Join Facebook, Columbus Dispatch, Sept. 28, 2010
    “Ohio prisons are leaping into social networking by creating a Facebook page. Right now, the content of the Ohio Department of Rehabilitation and Correction page is pretty sparse. But Julie Walburn, the agency communications director, said it will be ‘a useful venue to put out worthwhile information to interested stakeholders.’ Walburn said the content will include general information about the prison system, including a headcount of the number of offenders in Ohio prisons, plus details on re-entry programs for ex-offenders.”

  • On Social Media, Bad News Spreads Quickly, Baltimore Sun, Oct. 20, 2010
    “As social media reach almost every corner of our lives, they’re also affecting the way we learn about death. Memorials on social networking sites spring up almost instantaneously, upending the traditional flow of information in situations where privacy and respect for family members have long been valued — in the killings of soldiers, and for victims of airplane crashes and natural disasters, for example.”

  • Reporters Can Twitter, E-Mail in Court, U.K. Senior Judge Says, Bloomberg Business Week, Dec. 20, 2010
    “Journalists can now post live updates on Twitter Inc. social-networking service from within U.K. courtrooms, allowing news organizations to provide immediate information about ongoing court proceedings such as last week’s bail request by WikiLeaks founder Julian Assange.”

  • SC Inmate in Trouble After Updating His Facebook Page From Prison, GoUpstate.com, Jan. 24, 2011
    “South Carolina prison officials say they have seized a cell phone from an inmate who was updating his Facebook page from prison.” See 3 SC Inmates’ Profiles Pulled From Facebook, Charlotte Observer, Jan. 26, 2011

  • States, Including Utah, Settle Differences with Facebook, Deseret News, Jan. 5, 2011
    “The states began working with Facebook nearly a year ago after discovering a series of issues public agencies encountered while trying to use the site. The new terms mirror a similar agreement the company reached with the federal government more than a year ago, which allowed 33 federal agencies to connect with their constituents through Facebook.”

  • In U.S. Courts, Facebook Posts Become Less Private, Reuters, Jan. 27, 2011
    “It’s the latest litigation tactic in the online age: U.S. lawyers are trying to mine the private zones of Facebook and other social-media sites for photos, comments, status updates and other tidbits that might contradict what their opponents are saying in court. And increasingly, judges in civil cases are granting access to online caches that had formerly been considered off-limits.”

  • U.S. Tries to Make It Easier to Wiretap the Internet, N.Y. Times, Sept. 27, 2010
    “Essentially, officials want Congress to require all services that enable communications — including encrypted e-mail transmitters like BlackBerry, social networking Web sites like Facebook and software that allows direct ‘peer to peer’ messaging like Skype — to be technically capable of complying if served with a wiretap order. The mandate would include being able to intercept and unscramble encrypted messages.”

  • Web Browsing Takes a Social Turn, N.Y. Times, Nov. 7, 2010
    “At first glance, RockMelt looks like an ordinary browser, a digital windowpane onto the Web. But along the side of its main window are two thin rails with icons, one showing a user’s friends on the left, and another displaying a user’s favorite social sites, including Twitter and Facebook, on the right.”

  • You’ve Got to Have (150) Friends, N.Y. Times, Dec. 25, 2010
    “Put simply, our minds are not designed to allow us to have more than a very limited number of people in our social world. The emotional and psychological investments that a close relationship requires are considerable, and the emotional capital we have available is limited. Indeed, no matter what Facebook allows us to do, I have found that most of us can maintain only around 150 meaningful relationships, online and off — what has become known as Dunbar’s number. Yes, you can ‘friend’ 500, 1,000, even 5,000 people with your Facebook page, but all save the core 150 are mere voyeurs looking into your daily life — a fact incorporated into the new social networking site Path, which limits the number of friends you can have to 50.”

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.

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