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Facebook Posts Mined For Courtroom Evidence

timothy posted more than 3 years ago | from the objection-relevance dept.

Facebook 191

littlekorea writes "Defense lawyers are increasingly gaining permission from US courts to mine the private comments and postings on Facebook accounts to be used as evidence during trials. The first example — noted in Slashdot in September — has given way to an avalanche of new cases — and a worrying precedent that judges consider social networking content to be public data."

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Well Yea (4, Insightful)

satanicat (239025) | more than 3 years ago | (#35030830)

I dunno, regardless of where you post, I've been brought up to believe that anything you submit online should be considered no more secure than whispering it into someones ear...

Re:Well Yea (0)

Anonymous Coward | more than 3 years ago | (#35030870)

Whispering into someone's ear is pretty safe. Even if they rat you out, it's your word against theirs.

The words go out into the air and no one hears them again.

On social networking sites it's permanent.. which is why everyone should use image boards?

Re:Well Yea (1)

FuckingNickName (1362625) | more than 3 years ago | (#35030886)

The evidence you have that no logging and warranted monitoring occurs on image boards is...

Re:Well Yea (0)

Anonymous Coward | more than 3 years ago | (#35030990)

Whispering?

Seriously, putting something on line is like shouting it at a crowd of paparazzi.

Maybe it's the rise of "reality television" where people's lives are aired for entertainment (or notoriety depending on whom we are discussing). The young may see this as a way to either get their 15 min of fame, or use it as a launchpad for a poorly conceived career exploiting bad behavior....IDK.

Re:Well Yea (2)

Kjella (173770) | more than 3 years ago | (#35030992)

Yes well, except there's a third party that you don't normally consider that is storing all those whispers. If I send a SMS, the phone company doesn't keep a copy. If you call someone, the phone company doesn't keep a recording of it. At least before when I downloaded mail the server didn't keep it, that's less relevant now though since I use a webmail host. But if you message someone on Facebook, they do keep a copy forevermore. Or at least until the recipient deletes it, which may be never.

Re:Well Yea (1)

frozentier (1542099) | more than 3 years ago | (#35031178)

Yes well, except there's a third party that you don't normally consider that is storing all those whispers.

I thought we all learned a long time ago to assume that our conversations (and data) are stored somewhere by someone. Twenty years ago there were cases of private e-mails being read and distributed among office workers. People were even getting fired and sometimes divorced over it. That established what our expectations of "electronic privacy" should be. Now it's no different. In fact, joining a SOCIAL network, you should expect information is going to be shared. That's what a social network is.

Re:Well Yea (1)

Kjella (173770) | more than 3 years ago | (#35032050)

I thought we all learned a long time ago to assume that our conversations (and data) are stored somewhere by someone. Twenty years ago there were cases of private e-mails being read and distributed among office workers. People were even getting fired and sometimes divorced over it. That established what our expectations of "electronic privacy" should be. Now it's no different. In fact, joining a SOCIAL network, you should expect information is going to be shared. That's what a social network is.

LIFE is a social network. I guess you should just set yourself up like some new JenniCam, since you seem to have abandoned any expectation of privacy already, but the rest of us haven't. In particular that there's such a thing as private communication. In your fucked up world there's no such thing, since every communication requires more than one party. If you've told one, you've told the world. If one person has seen a private photo of you, then everyone has.

That said, properly issued warrants have always taken precedence over privacy. With them they can search you, your house, papers, effects and everything else the fourth amendment normally protects. The difference is that lots of things that used to be ephemeral are now preserved as bits and bytes on a computer somewhere.

Re:Well Yea (3, Insightful)

csteinle (68146) | more than 3 years ago | (#35031544)

If I send a SMS, the phone company doesn't keep a copy.

Oh yes they do.

Re:Well Yea (2)

rhsanborn (773855) | more than 3 years ago | (#35031786)

The former mayor of Detroit, now a convict, Kwame Kilpatrick begs to differ:

http://www.slate.com/id/2183399/ [slate.com]

Re:Well Yea (3, Funny)

JWSmythe (446288) | more than 3 years ago | (#35031812)

      It's more like, anything you post online is as private anything you write, photocopy, and send to a few hundred people.

      I posted on my Facebook wall a little while back, that anything I write online is disinformation. I know the information is datamined. It will, at some point, be shared with someone you don't want it exposed to. There is a chance something I post is factual. It's true, right down to where my location is.

    My fictional online persona has had me drifting around various government facilities and and other remote locations (Rachel, NV; McLean, VA; Fort Meade, Maryland; Wild Goose Chase, Woombah, New South Wales, Australia; etc). Then sometimes I give my real location. Most are virtually impossible to confirm. If I were were at the NSA headquarters, is there any expectation that a random person trying to find me could ask the guard "Is Mr. JW Smythe here?" The response would range from prolonged laughing, to detainment and questioning.

    It's not just what I say about myself either. Bouncing through various proxies around the world, if Facebook were subpoenaed for something as simple as the list of IP's that I accessed from, it would be a nonsensical pattern of locations. In a day, I may log in from Moscow, Beijing, London, Paris, New York, Los Angeles, or Brasilia.

    If I already admitted that most of what I post online is a lie, and any of it was brought up in court to prove anything about me, the judge would would get tired of any line of questioning that related to my online statements, simply because I do, and frequently repeat, that many are complete works of fiction, dressed loosely as fact.

    So ya, when I go off on a government or alien conspiracy rant, it isn't because I necessarily believe it. Maybe I do. Maybe I don't. Maybe I've considered writing fictional books, and haven't had a real inspiration to sit down and write hundreds of pages of my best bullshit^H^H^H^H^H^H^H^H fiction, to submit to publishing houses and receive the string of rejections, possibly followed by one acceptance, and then have my had word become a $9.95 paperback that I'll find in the $0.50 clearance bin in just a few years. Dejected because the publisher made so much money from me, and for all the hoops I jumped through, I only made a few thousand dollars. Sad and dejected, I sit in my beachfront shack in Cuba. I admire the waves rolling in, and beautiful women on the beach, hoping an approval letter finally comes in, while I churn out more pages of mediocre fiction, knowing that the cycle will repeat endlessly until I die in a few years, with my family not caring where I went, comfortable in the idea that I went with a smile on my face and a local prostitute riding me to my final moments...

    Or maybe, just maybe, a good bit of what I write is pure fiction. Data mine that!

Re:Well Yea (1)

rjstanford (69735) | more than 3 years ago | (#35032004)

Why? Seriously - why go to all that both to "hide" something that nobody really cares about? Why not just not post of Facebook if you're that "concerned" about it? I mean, we've most of us moved a bit beyond Junior High haven't we?

Re:Well Yea (2)

Xyrus (755017) | more than 3 years ago | (#35032090)

Yep. If you don't want you're secrets to be social, don't post them to a social networking site. Better yet, don't post them anywhere on the internet. Someone, somewhere will find them, and usually it's someone you don't want to have your secrets

You'd think that would be obvious by now.

Well... (1)

XxtraLarGe (551297) | more than 3 years ago | (#35030842)

a worrying precedent that judges consider social networking content to be public data.

Aren't they?

Public they are (2)

mangu (126918) | more than 3 years ago | (#35030932)

...but can they be used as evidence?

In a courtroom one must take an oath to tell the truth, the whole truth, and nothing but the truth. The standards for a social network are considerably lower in regard to accuracy.

Re:Public they are (2)

w_dragon (1802458) | more than 3 years ago | (#35030998)

Yes, but they aren't using them as sworn testimony (I assume). There's no reason not to treat them the same as a letter or diary that is entered as evidence.

Re:Public they are (4, Informative)

Richard_at_work (517087) | more than 3 years ago | (#35031106)

Forensic traces at a crime scene dont have to swear an oath either, and they can be used in court as evidence - you seem to be misconstruing testimony and evidence.

Its quite simple - if the network in question can provide enough information to suggest "this account posted this text on this date from this address" and the lawyers can provide enough corroborating evidence to allow a reasonable person to accept that as a truth, then its good enough to be used in a court. If you dont want it used, dont post it - or dont allow a third party to hold it.

Re:Public they are (1)

Vectormatic (1759674) | more than 3 years ago | (#35031522)

so now the plan is

1) murder person
2) immediately use your smartphone to remote desktop into your home computer, 4 hours drive away
3) post "OMG, so wasted LOL" with a pre-prepared (and timestamp rigged) pic of yourself doing tequila shots to facebook
4) alibi?

Re:Public they are (1)

FatdogHaiku (978357) | more than 3 years ago | (#35032202)

so now the plan is

1) murder person
2) immediately use your smartphone to remote desktop into your home computer, 4 hours drive away
3) post "OMG, so wasted LOL" with a pre-prepared (and timestamp rigged) pic of yourself doing tequila shots to facebook
4) alibi?

Well, I hope you never get accused of a major crime because you just crapped all over one defense strategy and also opened the door on malice aforethought...

Re:Public they are (1)

mangu (126918) | more than 3 years ago | (#35032108)

if the network in question can provide enough information to suggest "this account posted this text on this date from this address" and the lawyers can provide enough corroborating evidence to allow a reasonable person to accept that as a truth, then its good enough to be used in a court

Normally courtroom evidence needs to do more than "suggest".

Things posted in a social network are somewhat equivalent of an unsigned typewritten text. The best you can assume is that this was written in a specific machine, not that it was written by its purported author.

Also, as in any informal document, you cannot assume that it was intended to be interpreted as the truth. People have been writing fiction, have been writing under pseudonyms for thousands of years and it has never been a crime to do so.

If people need to be constantly alert for the possible interpretations of their words we would be back to the Middle Ages, when anything you did could be considered as evidence of heresy and witchcraft.

Re:Public they are (1)

Idarubicin (579475) | more than 3 years ago | (#35031238)

In a courtroom one must take an oath to tell the truth, the whole truth, and nothing but the truth. The standards for a social network are considerably lower in regard to accuracy.

In general, the cases cited employ social-networking-derived evidence to impeach the credibility of plaintiffs. That is, defendants are comparing plaintiffs' statements and testimony made as part of legal proceedings to statements (and other evidence) they've posted on social networking sites.

The legal value of this information (as presented in the article) varies. It ranges from the somewhat plausible (one defendant claimed a serious injury cost him "the enjoyment of life", but described online a fishing vacation in Florida and a trip to the Daytona 500) to the utterly bizarre (a plaintiff argued that a defendant didn't really suffer "serious permanent personal injuries" because - in part - her MySpace postings still regularly include smiley emoticons).

Re:Public they are (1)

CohibaVancouver (864662) | more than 3 years ago | (#35032064)

...but can they be used as evidence?

"Mr. Jones, you testified that Mr. Smith has never been to Las Vegas, and he has never met you. However, Mr. Smith's facebook page indicates that on April 15th he was in fact in Las Vegas, meeting with you. Is this true? Remember, you're under oath."

Re:Well... (3, Insightful)

Abstrackt (609015) | more than 3 years ago | (#35030960)

No, private comments aren't public data.

Re:Well... (0)

Anonymous Coward | more than 3 years ago | (#35031036)

Legally they are not private. Once you tell a single person something it is no longer 'private'. Legally, private does not mean 'stuff you want to control', it means 'stuff no one other than yourself knows'.

Re:Well... (1)

JackOfAllGeeks (1034454) | more than 3 years ago | (#35031110)

Legally, private does not mean 'stuff you want to control', it means 'stuff no one other than yourself knows'.

Citation needed, since you're invoking some special legal definition of private.

Re:Well... (1)

demonlapin (527802) | more than 3 years ago | (#35032098)

I think he meant to say "something in which you have a reasonable expectation of privacy" is something that you've told to nobody else. In which case, he'd basically be right. As a broad rule (and IANAL, so it's going to be a broad rule), as soon as you tell someone - anyone - some piece of information, you can no longer have a reasonable expectation of privacy in it. Exceptions may exist between you and your lawyer, but don't count on them applying between you and your doctor or priest.

Re:Well... (1)

gsslay (807818) | more than 3 years ago | (#35032142)

If the court can subpoena the data it makes not one iota of difference if its public or private. It can be used as evidence.

Re:Well... (3, Informative)

commodore6502 (1981532) | more than 3 years ago | (#35031034)

Not in the European Union:

ARTICLE 8

1. Everyone has the right to the protection of personal data concerning him or her.

2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.

3. Compliance with these rules shall be subject to control by an independent authority.

Re:Well... (2)

demonlapin (527802) | more than 3 years ago | (#35032158)

some other legitimate basis laid down by law

That's a legal loophole big enough to drive an articulated lorry through.

Re:Public (3, Insightful)

TaoPhoenix (980487) | more than 3 years ago | (#35031124)

Well,

I'd consider "private" comments behind logins and passwords and invite-only friends lists to be "private". I'd think it is the same category as when you're not supposed to be recording people's phone calls - Facebook is succeeding getting people to "open up" because it's "private".

If courts are going to go all miranda on your "private" posts, then there's another ratchet in the big engine of the police state.

Re:Public (2)

jeff4747 (256583) | more than 3 years ago | (#35031296)

Did you think your friends could not be compelled to testify against you?

There's only 3 people you can talk to who can't be forced to recount the conversation in court: Your doctor, your priest and your spouse. Posting on Facebook never granted new privacy rights.

Re:Public (1)

bsane (148894) | more than 3 years ago | (#35031846)

Exactly. People may be more prolific on FB than say writing old fashion letters to friends, but both could be used as evidence in court. The only change I see is that FB posts are easier to find and subpoena, but the privacy of the conversation hasn't changed at all.

Re:Well... (1)

Culture20 (968837) | more than 3 years ago | (#35031990)

Not really, and the judges seem to actually be thinking of the conversations as private but non privileged conversations (unlike with your lawyer or your priest). Which is what they are.

Helpful tip (2, Informative)

JamesP (688957) | more than 3 years ago | (#35030846)

Treat all information posted on social networks as public

It is anyway, after a court order, or a systems invasion, or a dodgy employer.

Public data. (0)

Anonymous Coward | more than 3 years ago | (#35030848)

I've always treated it as public data and it appears time and time again that this is how it should be considered.

LaWERS (-1, Offtopic)

jimmydevice (699057) | more than 3 years ago | (#35030852)

Lawyers, Gack!
Second post, i hope.

Well ... for the most part (1)

CuriousGeorge113 (47122) | more than 3 years ago | (#35030854)

Well, for the most part, it is public data. The majority of facebook accounts are left on the default privacy settings, which means pretty much the whole world can see everything you post online.

I'm just failing to see the privacy implications. You post something on a public website, it's public information, and should be available in a court room....

Re:Well ... for the most part (1)

JackOfAllGeeks (1034454) | more than 3 years ago | (#35031004)

I guess the question is how "public" is Facebook? Facebook isn't as public as, say, Slashdot. If I gave you a Facebook URL, you can't just wander in there unless you're on the approved list (or do some manipulation). In that sense, it's more like an exclusive nightclub than a public park.

Re:Well ... for the most part (1)

jeff4747 (256583) | more than 3 years ago | (#35031312)

Conversations in an exclusive nightclub aren't private either, in the sense that they can be used in court too.

Re:Well ... for the most part (1)

aesiamun (862627) | more than 3 years ago | (#35031628)

But that's not true. You can search for a name and chances are, if they didn't make any privacy changes, you can read whatever they posted on their profile.

Re:Well ... for the most part (1)

JackOfAllGeeks (1034454) | more than 3 years ago | (#35031828)

if they didn't make any privacy changes

And if they did?

I'm not arguing that things that are marked as Public are somehow Private, but I am saying that things which are access-controlled aren't Public.

Comments below note that this is about the Discovery process in a case, which changes the actual scenario a bit, but I don't feel it changes my point here.

Well... (0)

Lev13than (581686) | more than 3 years ago | (#35030874)

Isn't an activity that's labeled "social" by definition part of the public domain? I'm all for protecting privacy rights, but you have to be an idiot these days to think that logging into Facebook is anything other than an explicit waiver of those rights.

Re:Well... (1)

JackOfAllGeeks (1034454) | more than 3 years ago | (#35031060)

Some might argue that sex is a social activity (especially if multiple partners are involved) but few would argue that this makes it public fare.

Re:Well... (4, Insightful)

Lev13than (581686) | more than 3 years ago | (#35031076)

Some might argue that sex is a social activity (especially if multiple partners are involved) but few would argue that this makes it public fare.

It is if you post the results on Facebook.

Re:Well... (1)

JackOfAllGeeks (1034454) | more than 3 years ago | (#35031160)

Some might argue that sex is a social activity (especially if multiple partners are involved) but few would argue that this makes it public fare.

It is if you post the results on Facebook.

Well played.

Re:Well... (1)

Lev13than (581686) | more than 3 years ago | (#35031556)

Actually, your original point is relevant. In many jurisdictions sexual activity involving more than two people has no expectation of privacy, regardless of the circumstances.

In Canada this went all the way to the Supreme Court, which ruled in 2005 that if the adults are consenting and there is no "harm", any activity involving more than two people is a private matter and none of the state's business.
http://www2.parl.gc.ca/Content/LOP/ResearchPublications/843-e.htm#indecency [parl.gc.ca]

Re:Well... (0)

Anonymous Coward | more than 3 years ago | (#35031114)

Are you saying that sex tapes have never been used in courts?

what's the diff? (0)

Anonymous Coward | more than 3 years ago | (#35030876)

so what's the difference between my posts on facebook and posts in my gmail account?

serious question.

i've locked down my facebook account as much as possible so to my mind it's just another messaging system and i don't consider it "public" in the same way i would for a forum.

while i understand the fact that once something on the internet it's out of my control i don't think it's wrong to have an expectation of privacy when i've explicitly and actively pursued limiting my audience to a select number.

Re:what's the diff? (1)

alphax45 (675119) | more than 3 years ago | (#35030912)

Same - mine is locked down as well. Granted I don't live in USA (Canadian) but this does kind of worry me as well.

vet this stuff (1)

TaoPhoenix (980487) | more than 3 years ago | (#35031196)

Combo-Expert gamers needed to vet this stuff! (My own viewpoint comes from a MTG background, but I'll accept MMO/other analogies as well.) We keep getting these weird little pieces of trouble, and the media seems to deliberately ignore the effect of batching them up.

Remember last month's entry that someone wanted Facebook to be the Gateway to the Web?

Really, what we have is a giant case of world wide Cabin Fever, that effect that used to drive people into crazy things from lack of perspective. Except because through the net we're "all staring at each other", it's structurally here until some watershed event changes our take on things.

Re:what's the diff? (1)

XxtraLarGe (551297) | more than 3 years ago | (#35030938)

i've locked down my facebook account as much as possible so to my mind it's just another messaging system and i don't consider it "public" in the same way i would for a forum.

How many friends do you have? If you post something on your wall and it's seen by hundreds of people, it's hart to call it non-public.

Re:what's the diff? (1)

Americano (920576) | more than 3 years ago | (#35031246)

Very little. If the court issues a subpoenas your records, they'll get access to your gmail just as fast as they'll get access to your facebook.

People seem to think that prosecutors have some sort of magic login to facebook allowing them to read any post. That's not the case. If they want the records, they ask a judge to issue a court order that the records be made available.

If you don't want a court to be able to subpoena the records, don't put them on facebook or gmail or any other online service.

Emails can be subpoena'd (2)

boxwood (1742976) | more than 3 years ago | (#35030880)

how is this different? Oh wait it isn't.

As you can see... (5, Funny)

Haedrian (1676506) | more than 3 years ago | (#35030888)

"As you can see your honour, the defendant is innocent.

This comment "I'm innocent" posted this morning has received 100 likes already.

I rest my case"

Re:As you can see... (1)

zildgulf (1116981) | more than 3 years ago | (#35032008)

Rebuttal, your Honor?

I have a Facebook comment that states the defendant is guilty as sin and that comment has 300 likes on that.

That beats consul's 100 likes, your honor.

The state rests it's case.

Internet == Public Data ??? (2)

rwv (1636355) | more than 3 years ago | (#35030920)

If you don't want some kind of information to be made public, don't post it on the Internet. Even if all your privacy settings are selected correctly in Facebook (so only friends can see your posts), there is no guarantee that one of your friends won't "re-tweet" (or whatever the kids are calling it these days) your personal information.

Re:Internet == Public Data ??? (1)

JackOfAllGeeks (1034454) | more than 3 years ago | (#35031046)

This is true.

However, there's a bit of a differencve between an authorized user (your "friend") divulging your private communiques in a public forum, and some unauthorized third party reaching in from the outside and taking them. What's being discussed here is that latter case, not the former.

Re:Internet == Public Data ??? (1)

jeff4747 (256583) | more than 3 years ago | (#35031344)

It's a court. They are not unauthorized. They can authorize themselves.

Re:Internet == Public Data ??? (1)

JackOfAllGeeks (1034454) | more than 3 years ago | (#35031620)

They're personal-injury lawyers, who are unauthorized, requesting and recieving court-compelled authorization from the account owner. The question is less about authorization and more about whether it's proper for the courts to be compelling these authorizations.

Re:Internet == Public Data ??? (0)

Anonymous Coward | more than 3 years ago | (#35031126)

i don't know that this has officially been decided and
encoded in the rules of evidence, but a retweet should
be inadmissible as hearsay.

Re:Internet == Public Data ??? (0)

Anonymous Coward | more than 3 years ago | (#35031358)

I agree. If you didn't say it and someone else says "hey he said this" there should be no way that should be entered into evidence. The security on Facebook is there for a reason. It is not public data. If that is the case, then the things you store on "the cloud" if you buy a new computer should be considered public data. who cares if it contains your tax information, social security number, where you live, your home security code, etc. I would never put things like that on "the cloud" or a webserver somewhere, but many people do and the companies supplying that maintain that it is very secure, not public data. Now if you go onto a forum like this and spout a bunch of crap that could get you in trouble, that is a different story. For example displaying the PS3's encryption keys, that will get you in trouble. :)

It isn't public, but it isn't private (0)

Anonymous Coward | more than 3 years ago | (#35030962)

While I understand the knee-jerk reactions in comments so far that say "duh, it's online, it's not private" and "they do this for email, so no big deal"...

I don't give every person I can find a friend invite. I have a small circle of people I actually know, and are friends with. The interactions I have with them may be public due to their settings, but anything I post on my own wall is NOT.

If I wanted the world to see what I say there, I'd set my privacy settings so that they could. I don't want some octogenarian out of touch baby boomer deciding that the INTARWEBZ facebooks must be my podium to the world, so it's not private.

Re:It isn't public, but it isn't private (1)

Haedrian (1676506) | more than 3 years ago | (#35030996)

don't want some octogenarian out of touch baby boomer deciding that the INTARWEBZ facebooks must be my podium to the world, so it's not private.

Does whoever is selling your personal data to advertisers count as an "octogenarian[...]baby boomer"?

We all know its not private, friends or no friends. Don't put anything private in there. If you want to take drugs, kill someone, or drive a car without a license, don't put incriminating information there. Not so hard is it?

Re:It isn't public, but it isn't private (0)

Anonymous Coward | more than 3 years ago | (#35031082)

No, it's not difficult to do that.

It also doesn't mean that the information present can't be used against me in some other way.

If I gave permission to 5 people to see the information, then by golly those 5 people should be the 5 that are permitted to see it.

Facebook just happens to be USED as a public forum by a plethora of people - it doesn't mean it has to be public all the time.

Can they obtain my personal diary, or a journal shared with friends? (IANAL) If it's a public journal, they don't need a subpoena - they can just read it directly. But if they can't see it at all . . . I'd call that, by definition "NOT PUBLIC".

Re:It isn't public, but it isn't private (1)

jeff4747 (256583) | more than 3 years ago | (#35031388)

Can they obtain my personal diary, or a journal shared with friends?

Yes. They can even force your friends to testify against you about it.

Re:It isn't public, but it isn't private (0)

Anonymous Coward | more than 3 years ago | (#35031858)

But then when they testify, they are using their own words, and recollections - not my direct communication.

This is about using my direct communication, and thus, me incriminating myself - I had a reasonable expectation of privacy in that communication, since it wasn't posted on a publicly viewable page. It was private - between friends.

Re:It isn't public, but it isn't private (1)

jeff4747 (256583) | more than 3 years ago | (#35031364)

Why did you expect more privacy rights from a post on Facebook than a real-life conversation with these people? If you only talked about [nefarious deed] in person, the people you talked to can be compelled to testify against you.

next boom of worthless jobs... (0)

Anonymous Coward | more than 3 years ago | (#35030986)

...just like the flood of "social media gurus" that promise that they will get you noticed on the web, should we now expect a slew of Social Media lawyers?

Ask yourself This Question: (1)

Rinnon (1474161) | more than 3 years ago | (#35030994)

Can someone other than the person I am conversing with, read this exchange? That is to say, is this conversation readable by more than just the people taking part in it? If the answer is yes, there is a good chance this is not private data. That's my way of looking at it at least.

....next worthless job? (0)

chubachub33 (1083745) | more than 3 years ago | (#35031002)

...just like the flood of "social media gurus" that promise that they will get you noticed on the web, should we now expect a slew of Social Media lawyers?

it's not about public facebook postings (2)

nomadic (141991) | more than 3 years ago | (#35031040)

This isn't about publicly available information, it's about information you can't see unless you're on a person's friend list, or even private messages between two people. The defense attorneys are getting courts to compel the plaintiff to sign a form allowing them access, then attaching them to subpoenas. Still don't see what the big deal is, though, this is information that in online form you'd just get through a subpoena anyway.

Re:it's not about public facebook postings (1)

zildgulf (1116981) | more than 3 years ago | (#35032070)

I always follow the advice of "if I don't mind screaming the comment in a crowded theater full of my worst enemies then it is OK to post the comment".

Always assume that all of your Facebook comments can and will be read by everyone from now until the end of time itself.

A worrying precedent? (4, Insightful)

MikeRT (947531) | more than 3 years ago | (#35031080)

I have to wonder how daft some of these commenters and commentators are if they believe this is new. If you're a 15 year old girl and your little brother reads your diary and notices that you confessed to filing false rape charges against your neighbor, his defense counsel could seize the diary as evidence if the brother told them about it. There is no "right to privacy" under the constitution in this respect. You have a right to not incriminate yourself. You have a right to not be subjected to overly broad or general searches and seizures. You have no right to a special place where you can say and do anything you want and it's all off limits to the courts.

I'm all in favor of making it tough for the police to get initial access to the data. I can't believe anyone would be worried that this would happen in the middle of a trial in front of a jury.

Re: say and do anything you want (0)

Anonymous Coward | more than 3 years ago | (#35031186)

You have no right to a special place where you can say and do anything you want and it's all off limits to the courts.

Except in conversations with your solicitor (lawyer, counsel, advocate, whichever term applies) and in many jurisdictions in confessions to a priest, among other.

Re: say and do anything you want (1)

statusbar (314703) | more than 3 years ago | (#35031280)

Hmmm.. So if a real Priest put a "Private Confessional Booth" on facebook, would the confessions be private?

Re: say and do anything you want (1)

drinkypoo (153816) | more than 3 years ago | (#35031534)

Hmmm.. So if a real Priest put a "Private Confessional Booth" on facebook, would the confessions be private?

No, because they would have already been made to Facebook, and any reasonable person should expect that Facebook will leak all their "private" data all over the internet.

Re:A worrying precedent? (2)

locallyunscene (1000523) | more than 3 years ago | (#35031300)

It's worrying to someone who is innocent, that they're going to get smeared all over the place with this data that may or may not be relevant to the case which is then going to be on the public record.

You're right though, if you're in court the state has to have fulfilled it's burden of proof to look into your private life. I disagree with calling social networking "public data" unless it's accessible without logging in as that person's "friend".

Re:A worrying precedent? (0)

Anonymous Coward | more than 3 years ago | (#35031446)

But this is not how the legal system works in most cases. There are rules of evidence in place and a judge should keep it out of trial. OK, you say, then the attorneys can leak what they found to the press. A) How many people actually have to worry about that? B) If they do, their case may be thrown out or, at least, their attorney will be severally reprimanded for the release of information. Attorneys worry about this because they have to work with the judges again.

Re:A worrying precedent? (1)

Nidi62 (1525137) | more than 3 years ago | (#35031748)

You have no right to a special place where you can say...anything you want and it's all off limits to the courts.

Unless you are married in the US, then you have spousal privilege. Although, I wonder, would that hold up if it were a private message sent on facebook between a husband and wife? Or would they consider facebook's storage of it as a 'third party", therefore voiding spousal privilege?

Public data but what about.... (0)

Anonymous Coward | more than 3 years ago | (#35031100)

While I completely agree, what is on the internet is public domain (including this post) what I have issue about is other people placing your private info on the web, and you have no control over this. This defeats my personal efforts to have as few footprints on line as possible.

For example, a decade ago, a friend sent me a LinkedIn request. I quickly refused the request. To this day, my name and past employment are associated to LinkedIn. I didn't put my info out there, someone else did, and because I have no account to LinkedIn, I'm going to have to provide info to LinkedIn to get them to remove my data.

And with more and more companies requesting that you post your resume via the web, you're being forced to relinquish your right to privacy if you want any sort of work. Businesses are becoming only on-line entities, and if it's a product you require, you may only make your purchase through on-line transactions.

Now I would have to ask, if more and more banks press customers to "bank on-line" does this mean because it's data that we once again lose our right to privacy?

Sadly, I would have to say yes. This is why I'm finding these rulings by judges to be too open ended. The more the public is using the web as a form of business and communication, the more the system of law needs to consider privacy issues of the people in what is reasonable and what is not.

Re:Public data but what about.... (1)

Americano (920576) | more than 3 years ago | (#35031322)

There is a right to privacy in your financial records.

There is no right to not be subpoenaed. If your finances are relevant to your court case, then the court can issue a subpoena for those. Same applies to facebook.

If you post it on facebook, it may become public through the actions of another. If you post it on facebook, it may still be subpoenaed by a court even if it's so private that nobody on facebook has ever seen it. "Privacy" does not grant you some sort of immunity from prosecution and subpoenas.

Re:Public data but what about.... (2)

mlts (1038732) | more than 3 years ago | (#35031518)

You hit the nail on the head. When I graduated college and started looking for work, when HR people asked what my Myspace/FB/Twitter/LinkedIn accounts were, and I told them that I had none, I got told, "Why should we hire you? By not having a presence on social networks, you have shown yourself to be a fossil with no ability to adapt. No FB account is just as bad as not having an E-mail address." Even when I remarked that having an admin who doesn't spill his/her guts for the world to see if a good thing, I got the glazed-eyes look from the HR droid, and the "thank you for letting us interview you, don't call us; we'll call you" crap.

This happened during interviews for a few times until I created dummy profiles on the networks with a random article or two, so they didn't look blank.

So, unless one is getting a job as a door to door vacuum bed salesperson, a lot of employers I have personally encountered don't just want to know that you are on social networks, they actually ask your user IDs to see your public profile. A guy who graduated with me actually had to have his employer added onto followers/friends as a condition of employment. (Even though it technically is a TOS violation, he ended up keeping two sets of accounts, one under his name, one under his AKA.)

With job seekers essentially having to have a social media presence, it would be nice that some privacy laws other than, "if it is on the service, it is searchable and usable in criminal/civil courts" would apply. But realistically they don't, so one always has to remember that, when writing a post, assume there is someone there reading it who wants to stick handcuffs on someone, or sue into bankruptcy.

Re:Public data but what about.... (1)

Lumpy (12016) | more than 3 years ago | (#35031952)

and if you DO have online social junk you ALWAYS create two on each.

1 is your professional side you keep professional and squeaky clean.
2 is your nasty dirty real life one that has NO information to link the two.

My twitter and Linked in are super professional.
My facebook is my personal and has ZERO info to link me to it. my real name is not there only my nick-name that is changed a bit so it's not easy to grep if you knew it.

If you Google my real name all you get is professional stuff of mine and some smattering of line noise (no I'm not a drummer for a punk band, and I am not missing in Iraq) It's called maintaining your reputation, and for some reason college kids cant understand this. You will not get that Marketing director job if they find photos of you doing keg-stands while taking a bong hit, It's the equivalent of getting "EAT ME" tattooed to your forehead.

Hacking Facebook to Plant Evidence (1)

OneThousandOneWebs (1982760) | more than 3 years ago | (#35031112)

And how can anyone prove that account has not been hacked in order to plant "evidence"? By those standards Mark Zuckerberg is guilty of promoting the ‘social business' philosophy of Nobel Price winner Muhammad Yunus, no?

Re:Hacking Facebook to Plant Evidence (1)

jeff4747 (256583) | more than 3 years ago | (#35031428)

You are welcome to bring evidence of such hacking to discredit "your" post.

What does 'public' have to do with anything? (5, Insightful)

Nevo (690791) | more than 3 years ago | (#35031144)

Since when can the courts only use 'public' information as evidence? This whole thread is based on a flawed premise.

Darn (0)

Anonymous Coward | more than 3 years ago | (#35031194)

What am I going to read if people stop posting silly personal sh*t on Facebook ?

Private doesn't matter (2)

gnasher719 (869701) | more than 3 years ago | (#35031268)

This was discussed before, and again there is a deep misunderstanding what is going on.

This is about people suing a company, for example after an accident, to get compensation. This turns into a court case, and in a court case we have discovery. In discovery, both sides have to turn over relevant information. Whether that information is private or not doesn't matter one bit. What matters is whether it is relevant to the case or not. If you went to a restaurant, and claimed that you became impotent after eating their food and sue them for damages, then some very, very private photos could be relevant to the case and would have to turn over.

If you claim that you are unable to walk because of an accident, then the company you sue can rightfully demand that you turn over private videos that show you playing beach volleyball in the nude after the accident because it is relevant to the case. That's when the evidence is in your possession. If the evidence is in someone else's possession, then they still can rightfully demand the evidence. You have the right to refuse to help them; in that case for example Facebook wouldn't turn over such evidence, and the court would assume that the evidence that you withheld would speak against you.

I'm doing this right now (5, Interesting)

kronosopher (1531873) | more than 3 years ago | (#35031282)

About a year ago I lived in an two-bedroom apartment with two other people. My first roommate let the second move in the downstairs living room without consulting me. Eventually I agreed under the condition that the new roommate would pay us $300/mo, of which I'd receive $150. The new roommate turned out to be a total degenerate psychopath, who routinely stole from us and never paid his rent. He was also disposed to episodes of violence, rationalizing his behavior as a type of entertainment at our expense. After about 6 months and a sequence of increasingly severe incidents, I eventually drove him out.

Both my original roommate and I decided from there that we would keep as far away from him as possible, despite having a number of mutual friends. As much as it would have been utter ecstasy to see him in jail, we came to the conclusion that he would eventually destroy himself without our help and left it at that.

Ever since then, said individual has posted numerous messages on Facebook explicitly threatening to murder us. This culminated in a particularly threatening message last week where he stated something to the affect of "we better watch out, he's coming for us." Both myself and my former roommate have decided that despite our desire to remove ourselves from the situation, we cannot ignore it any longer and have contacted a lawyer. Our lawyer has arranged a preliminary hearing next week where we and a number of friends will testify as character witnesses and using his Facebook posts as evidence hopefully can convince a judge to incarcerate him.

Why did you call a lawyer? (4, Insightful)

multipartmixed (163409) | more than 3 years ago | (#35031392)

I don't know where you live, but in Canada, this constitutes uttering a death threat. This is a serious matter -- you call the police, they arrest him.

Re:Why did you call a lawyer? (0)

Anonymous Coward | more than 3 years ago | (#35031734)

Sounds like a lawyer is a good idea - they'll want someone on their side to make sure the cops actually do their job.

Re:I'm doing this right now (0)

Anonymous Coward | more than 3 years ago | (#35032204)

Yeah dude - in the U.S it's called 'Terroristic Threats' - call the police immediately and he will be arrested. My wife works in the county attorney's office and sees this crap all the time.

Public != Subpoenable (1)

mbone (558574) | more than 3 years ago | (#35031474)

IANAL, but emails have been subpoenable for a long time (except for lawyer-client and doctor-patient communications) and I see no reason why (say) Facebook posts would be any different. That doesn't mean that they are public, just that a judge can authorize lifting the veil.

No Secrets in Court (0)

Anonymous Coward | more than 3 years ago | (#35031526)

I was involved in a court case where the defense subpoenaed the plantiff's psychiatric records. So to the people saying that doctor-patient relationships are somehow immune to being brought up in court, you're wrong. The only steadfast principle is that

This news story is silly and wouldn't be one if people understand the way litigation works.

Unlike (1)

ks9208661 (1862000) | more than 3 years ago | (#35031536)

Unlike! Dang, there's still no Unlike button...

There's no excuse (1)

supersloshy (1273442) | more than 3 years ago | (#35031572)

Well, yeah... You sign up for Facebook and everything you post there is on Facebook's servers. Why wouldn't they allow incriminating data to be searched for by the authorities? If you do something illegal (depending on your local definition of illegal of course, which may or may not be a good definition) and you put it on Facebook of all places, there's no excuse. I'd expect decent criminals to be smart and make sure it's not so easy to be caught... right?

Why do people agree to use real names on FB? (1)

dennish00a (1411367) | more than 3 years ago | (#35031660)

I think that part of the reason FB appears relatively frequently in such stories is the ease of associating FB information with real names. I am fascinated and amazed by the success FB has had in getting people to use their real names. I don't know if it is a generational or personal thing--but I just wouldn't put my real name out there like that. The fact that 500,000,000 people have apparently done that is mystifying to me. I'm not saying that I need to be totally anonymous, but I much prefer the quasi-obscurity of an online handle.

It's pretty simple isn't it? (1)

epp_b (944299) | more than 3 years ago | (#35031788)

If the information is available publicly (ie.: without signing into Facebook or conning your way into a friend-request acceptance), it's public. If it's marked as private, it's private, unless permission is otherwise given by the owner(s) of said information.

Does it really need to be more complicated than that?

Equivilence to "normal" conversation is worrying (1)

swb (14022) | more than 3 years ago | (#35031804)

What's worrying to me is that we are making Facebook posts 'equal' with normal language and communication.

My sense from being 40 and using Facebook for a couple of years is that people are (like in any non-face-face posting/forum/communication) prone to posting things that they would not otherwise say.

Furthermore, I think the "culture" of Facebook rewards provocativeness and certain amount of outrageousness. A posting of "Woke up with a headache, showered, ate a smoothie and drove to work" would be ignored while "Woke up with a ringing hangover and on the drive just about got run off the road by some asshole that I wanted to kill" might attract responses.

The problem is that while both statements are right, the former more likely represents the person's actual life, general personality and likely attitude towards others; the latter represents a more "gonzo" version that will attract attention but doesn't really represent the person well.

I think this is different, too, than the usual "smoking a bong on Facebook" because that represents a real action, not just an exaggerated version of normalcy.

Moral of the story? (1)

Lumpy (12016) | more than 3 years ago | (#35031850)

Dont be a MORON and brag about your crimes online.

100% of all "hackers" that brag about their exploits get nailed.
100% of all thieves that brag about their exploits get nailed.

Keep your mouth shut. Cops catch crooks because the majority of crooks are stupid as a box of rocks.

You dont write down you exploits in your memoirs, you dont tell friends, you tell nobody, you never type it, speak it or think it.

Sad (1)

PNO (1215522) | more than 3 years ago | (#35031940)

It's sad that each new generation has to relearn this lesson over and over again. Nothing on the web is "private". It's too bad our species couldn't have evolved a genetic memory. Would eliminate so many "duh!" topics like this.
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