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Judges must keep up with social media

Stacked3This week's Daily Record column is entitled "Judges must keep up with social media ." My past Daily Record articles can be accessed here.

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Judges must keep up with social media 

In 2011, I wrote about a federal court arraignment here in Rochester where a member of Hells Angels was accused of threatening a witness by “poking” him on Facebook. Unfortunately, neither the judge nor the attorneys involved in the matter understood Facebook privacy settings, so the judge ultimately opened up the issue to the peanut gallery, asking a probation officer, a court reporter and a newspaper reporter in attendance for insight into how Facebook privacy settings work.

Fast forward to 2014 and you would think that things would have changed just a bit. After all, social media has been around for quite some time now and is a part of our mainstream culture.

Then again, it’s a rapidly evolving medium, with new platforms being released all the time, making it difficult for even tech-savvy folks to keep up. So it’s no wonder that lawyers and judges continue to encounter difficulties when faced with cases involving allegations of unlawful contact via social media.

It’s no surprise then that these issues continue to crop up in courts across the country. The problem is that judges are conducting business as usual and setting bail in these cases even though they often lack a complete, or even partial, understanding of the issues and social media platforms involved.

A great example of this occurred a few weeks ago in Salem, Mass., where a man named Thomas Gagnon was accused of violating a restraining order by sending his former girlfriend an invitation to join his Google Plus circle.

According to an article from The Salem News, the judge set bail in this case even though he knew nothing about the inner workings of the Google Plus social network: “(A) Salem District Court judge yesterday admitted he wasn’t sure exactly how such invitations work on Google’s social media site, but he set bail for Gagnon, 32, at $500 and ordered him to stay away from the woman’s home and obey the restraining order she took out on Monday.”

And if that wasn’t troubling enough, the judge set bail even though Gagnon’s attorney raised legitimate questions at the arraignment about Google Plus and issues surrounding whether the platform automatically generates requests to connect on occasion depending on a user’s settings or interactions with the platform.

His attorney’s concerns were arguably valid in light of a recent moves by Google to integrate Google Plus into the lives of anyone that uses its other services, including Gmail and YouTube. Google’s attempts to broaden the user base of Google Plus by integrating these products has resulted in some users asserting that Google has mined their Gmail contacts and then sent out automatic Google Plus notifications.

In other words, there’s a legitimate argument to be made that Gagnon had nothing to do with the connection request. So setting bail and depriving him of his liberty based on accusations which may not have been grounded in fact — and about which the judge admittedly had no understanding — was negligent at best, and egregious at worse.

True, social media platforms are changing at a break neck pace and staying abreast of every nuance is a full-time job — one that judges never agreed to take on. That being said, social media isn’t going away and judges must exercise more care than was evidenced in this case prior to depriving individuals of their liberty.

It is the judge’s job to ensure that the defendant understands the charges — and that simply cannot be done if the judge doesn’t understand them. It’s simply common sense.

Nicole Black is a Rochester, New York attorney and Director 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 niki@mycase.com.