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Prosecutors turn more to social media evidence

Stacked3This week's Daily Record column is entitled "Prosecutors turn more to social media evidence."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Prosecutors turn more to social media evidence

Social media use has been mainstream for years now and for that reason, it is becoming increasingly common for the government to rely on evidence obtained through social media when investigating and prosecuting criminal activity.

For example, as I discussed in my column published on July 9, in People v. Harris, 2012 WL 2533640 (N.Y.City Crim.Ct. 2012), a case arising from the Occupy Wall Street protests, the prosecution sought access to data regarding the defendant’s Twitter account. The prosecution subpoenaed information related to Harris’ Twitter account and the court held that because his tweets were public, all content requested pursuant to the subpoena that was more than 180 days old would be turned over to the prosecution.

More recently, here in Rochester, the Facebook postings of Megan Merkel, a woman accused of vehicular manslaughter arising from the death of Heather Boyum, made headlines after Merkel posted about the incident on her Facebook page mere hours after Boyum’s death. After the existence of these postings was revealed, the prosecution indicated that it was considering the possibility of seeking access to Merkel’s Facebook account.

A similar issue arose earlier this month in U.S. v. Meregildon, 2012 WL 3264501 (SDNY Aug. 10). InMeregildon, the government was investigating its theory that the defendant was involved in illegal gang activity. As part of its investigation, the government sought access to the contents of the defendant’s Facebook account. In its application for a search warrant for that purpose, the government established probable cause by relying on postings made by the defendant to his Facebook page regarding gang-related activity.

The government obtained access to that information via a cooperating witness who was also a preexisting Facebook “friend” of the defendant. After the court granted the government’s request, the defendant challenged the judge’s decision on Fourth Amendment grounds alleging that the government’s use of the cooperating witness to access his Facebook postings was unlawful.

The Southern District of New York disagreed, concluding that the privacy settings for his Facebook profile allowed his posts to be disseminated to his “friends,” who were then free to do whatever they pleased with that information: “Where Facebook privacy settings allow viewership of postings by ‘friends’ the government may access them through a cooperating witness who is a ‘friend’ without violating the Fourth Amendment … While Colon undoubtedly believed that his Facebook profile would not be shared with law enforcement, he had no justifiable expectation that his ‘friends’ would keep his profile private.”

The court explained that when the defendant shared his posts with his “friends,” he “surrendered his expectation of privacy” just as one who sends an email or a letter relinquishes their privacy upon delivery. Accordingly, the court denied his motion to suppress the evidence seized from his Facebook account.

So, the lesson to be learned is that evidence gleaned from social media is fair game in criminal prosecutions. Although there may be issues surrounding the degree of privacy that defendants may have in particular postings, the more public the postings, the more likely it is that the courts will allow governmental access. In other words, post at your peril, since you never know when your words will be used against you.

Nicole Black is a Rochester, New York attorney and the Vice President of Business Development and Community Relations at MyCase, an intuitive cloud-based law practice management platform for the modern law firm. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.

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WIN a Free iPad Case!

Image representing IPEVO as depicted in CrunchBaseImage via CrunchBase

Each month at the MyCase blog, we hold a giveaway. Last month the TranscriptPad iPad app was up for grabs. This month it's one of two iPad cases from the good folks at IPEVO. These are my favorite iPad cases, so if you win, you're in for a treat!

If you'd like a chance to win, head on over to the MyCase blog and sign up!

And, while you're at it, check out my past posts there about law practice management and legal technology issues, including cloud computing for lawyers.


Tech obligations affected by ABA Model Rules changes

Stacked3This week's Daily Record column is entitled "Tech obligations affected by ABA Model Rules changes."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Tech obligations affected by ABA Model Rules changes

During the American Bar Association’s Annual meeting in early August, the ABA House of Delegates approved resolutions that incorporated updates to the Model Rules of Professional Conduct. These changes affected, among other things, cloud computing and outsourcing, confidentiality, and lawyers’ obligations to stay abreast of changes in technology. These were important amendments, intended to reflect the reality of practicing law in the midst of a rapidly changing technological landscape.

These resolutions were passed after years of work by the ABA Commission on Ethics 20/20, which was formed to “perform a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments.”

After many iterations of proposed changes to the Model Rules and many rounds of public comment and discussion, the House of Delegates at long last considered and passed a final set of amendments (online: http://tinyurl.com/abaModelRules2012).

One of the most important changes was the language added to the commentary to Rule 1.1, which requires lawyers to act competently when representing clients. The new comments specifically require that in order to maintain the necessary knowledge and skill, lawyers must “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology …”

Also of import were the changes to Rule 1.6, which addresses lawyers’ duties when dealing with confidential information. Subdivision (c) was added to Rule 1.6 and now that lawyers shall “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”

The corresponding commentary to that new subdivision explains that this subdivision is not violated so long as a lawyer has made reasonable efforts to prevent unauthorized access or disclosure. Factors to consider in making this determination include “the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use).”

The commentary to Rule 5.3, which addresses lawyers’ responsibilities when using non-lawyer assistance, was also amended to address outsourcing issues, including the use of cloud computing providers for the purpose of storing confidential client data.

The new language provides, in relevant part, that lawyers may use third party non-lawyer providers, including: “an investigative or paraprofessional service, hiring a document management company to create and maintain a database for complex litigation, sending client documents to a third party for printing or scanning, and using an Internet-based service to store client information. When using such services … a lawyer must make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations.

“The extent of this obligation will depend upon the circumstances, including the education, experience and reputation of the nonlawyer; the nature of the services involved; the terms of any arrangements concerning the protection of client information; and the legal and ethical environments of the jurisdictions in which the services will be performed, particularly with regard to confidentiality … (A) lawyer should communicate directions appropriate under the circumstances to give reasonable assurance that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer.”

These amendments to both the rules and the commentaries are important additions to that reflect the ABA’s acknowledgement of the impact of technology on the practice of law. Unfortunately, I suspect that the requirement that lawyers’ stay on top of changes in technology, while undoubtedly a necessary requirement, is one that some lawyers will find to be unduly burdensome.

However, the stark reality is that, as I’ve been saying for years now, the effects of technology on the practice of law are inescapable. Up until now, many lawyers have chosen to ignore this fact — but, no more. Because of the passage of these new resolutions, technological ignorance is no longer an option.

Nicole Black is a Rochester, New York attorney and the Vice President of Business Development and Community Relations at MyCase, an intuitive cloud-based law practice management platform for the modern law firm. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.


States pass laws that ban requesting passwords

Stacked3This week's Daily Record column is entitled "States pass laws that ban requesting passwords."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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States pass laws that ban requesting passwords

Last summer I wrote about a new and disturbing practice utilized by many employers: requesting social media passwords from new job applicants. Although this particular trend has been most evident amongst law enforcement agencies, other professions have jumped on the bandwagon as well, and, accordingly, many have raised concerns about this new practice.

As I explained last summer, I believe the practice is problematic because it arguably violates the privacy of not only the potential employees, but also of innocent third parties with whom they have communicated using social media sites.

Oftentimes, when people interact on social media sites, the communications are made with the understanding that only the intended recipients will have access to the message. This is because many social media users prefer to keep their personal information private, so they make a conscious decision to limit public access to their social media profiles in order to enhance their levels of privacy.

By obtaining social media passwords, employers can bypass these privacy settings and access all electronic communications related to the profiles, regardless of the privacy settings in place.

My biggest concern regarding this practice is that even if the job applicants agree to allow hiring agencies access to their social media profile passwords, their “friends” most certainly have not. Therefore, policies of this type should be terminated since they infringe upon the privacy rights of innocent, unsuspecting third parties who happen to be friends with, and correspond with, job applicants.

Since I last addressed this issue, this questionable practice has become even more commonplace, with employers requesting social media passwords from both new applicants and current employees. Fortunately, I’m not the only one offended by this troubling new trend.

In recent months, two different bills prohibiting this practice have been introduced in Congress, although neither has yet been voted on. And, two states have enacted laws that prohibit employers from obtaining social media passwords from job applicants and employees.

Maryland and Delaware were the first states to pass a law of this type, followed by Illinois, which passed a similar law last month. The new Illinois law will be effective on Jan. 1, 2013.

When signing the bill, Illinois Gov. Pat Quinn explained the rationale behind the prohibition: “Members of the workforce should not be punished for information their employers don’t legally have the right to have. As use of social media continues to expand, this new law will protect workers and their right to personal privacy.”

The good news is that Maryland, Delaware and Illinois aren’t alone in their efforts to curb employers’ access to this type of information. A number of other states, including California, Michigan and New Jersey are considering similar laws. So, perhaps this intrusive practice will soon be a thing of the past.

Even so, that employers chose to pursue this information in the first place is just one example of the many downsides associated with the social media phenomenon. Social media provides us with many benefits, including the ability to more easily communicate, collaborate and share information, but those benefits come at a price: the potential loss of our privacy.

Whether the benefits outweigh the risks associated with the use of social media remains to be seen. Over time we’ll have a better sense of whether our culture is able to effectively balance the plusses and minuses of social media. The recently enacted laws are a good start. But let’s withhold judgment until we see what the future holds.

Nicole Black is a Rochester, New York attorney and the Vice President of Business Development and Community Relations at MyCase, an intuitive cloud-based law practice management platform for the modern law firm. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.