Criminal Law

Facebook denied in request to dispute warrants for user data

Stacked3This week's Daily Record column is entitled "Facebook denied in request to dispute warrants for user data."  My past Daily Record articles can be accessed here.

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Facebook denied in request to dispute warrants for user data  

Last week in 381 Search Warrants Directed to Facebook, Inc. v. New York County Dist. Attorney’s Off., (2015 NY Slip Op 06201) the New York Appellate Division, First Department considered an appeal brought by Facebook. In this appeal, Facebook sought to overturn the trial court’s refusal allow it to dispute search warrants issued by the New York County District Attorney’s Office and seeking access to 381 Facebook user’s accounts.

In the warrants, it was alleged that there was “reasonable cause to believe” that the Facebook data of the 381 users included evidence of offenses that included grand larceny in the second degree, grand larceny in the third degree, filing of a false instrument in the first degree and conspiracy. The state sought access to 24 categories of information that constituted nearly every post and action taken by the selected users on Facebook. The warrants also contained a nondisclosure provision preventing Facebook from disclosing the warrants to their users.

The court focused its analysis on determining the proper statutory basis for the warrant requests, concluding that they were more akin to search warrants as opposed to subpoenas issued pursuant to the Federal Stored Communications Act. Accordingly, the court held that Facebook had no legal basis for its motion to quash the warrant: “We now hold that Supreme Court’s summary denial of Facebook’s motion ‘to quash’ the search warrants was proper because there is no constitutional or statutory right to challenge an alleged defective warrant before it is executed. The key role of the judicial officer in issuing a search warrant is described generally by the Fourth Amendment and more specifically by state statutes. None of these sources refer to an inherent authority for a defendant or anyone else to challenge an allegedly defective warrant before it is executed.”

The court explained the basis for its determination as follows: “Facebook cannot have it both ways. On the one hand, Facebook is seeking the right to litigate pre-enforcement the constitutionality of the warrants on its customers’ behalf. But neither the Constitution nor New York Criminal Procedure Law provides the targets of the warrant the right to such a pre-enforcement challenge. On the other hand, Facebook also wants the probable cause standard of warrants, while retaining the pre-execution adversary process of subpoenas. We see no basis for providing Facebook a greater right than its customers are afforded.”

The court acknowledged the validity of privacy concerns raised by Facebook but ultimately declined to opine on those issues since the ruling on the procedural nature of the warrants negated the need to address those claims. “(W)e are cognizant that decisions involving the Fourth Amendment have the power to affect the everyday lives of all U.S. residents, not just criminal suspects and defendants. Our holding today does not mean that we do not appreciate Facebook’s concerns about the scope of the bulk warrants issued here or about the District Attorney’s alleged right to indefinitely retain the seized accounts of the uncharged Facebook users. Facebook users share more intimate personal information through their Facebook accounts than may be revealed through rummaging about one’s home. These bulk warrants demanded ‘all’ communications in 24 broad categories from the 381 targeted accounts. Yet, of the 381 targeted Facebook user accounts only 62 were actually charged with any crime.”

Accordingly, as it stands, the determination of the whether a warrant for social media is too broad continues to rest with trial court judges — some of whom unfortunately have a minimal understanding of the workings of social media platforms.

Facebook has indicated its intent to appeal the Appellate Division’s ruling, no doubt in part due to the massive amounts of administrative time and effort required to comply with these types of warrants, the numbers of which are only increasing in frequency as social media evidence becomes an important tool for prosecutors. So stay tuned; today’s decision may be overturned in the near future. Who knows what tomorrow may bring?

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also 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.


Social media posts violating probation/parole

Stacked3This week's Daily Record column is entitled "Social media posts violating probation/parole."  My past Daily Record articles can be accessed here.

*****

Social media posts violating probation/parole

 

When I read a headline indicating that an “outrageous” Facebook post served as the basis of a parole violation for a parolee who had been convicted of vehicular homicide and other crimes, I fully expected that the post would relate to the original crime, the victim or perhaps the commission of a new crime. After all, if words alone were going to be enough to send a man back to prison, then you’d expect that the words in question would be either incredibly offensive or indicative of conduct that was clearly violative of his conditions of parole.

Instead, I was surprised to find that the words at issue appeared to relatively benign, all things considered. But don’t take my word for it, decide for yourself. Here’s what Ryan C. Fye, an Ohio parolee, posted to his Facebook wall: “Prison didnt break me. It MADE me. Im free. Im a new man. Dont come at me like before. Yes im skinny and muscular now. 7 months of working out everyday. Love my real friends an fam. Shout outs to my fam behind bars. Ill see ya when youre time is near! Miss you brothers!” [sic]

He accompanied the post with an image of him flipping the bird to the camera with both hands. Certainly the decision to include this photo was a questionable one, but as far as I’m concerned neither the photo nor the posting rose to the level of a parole violation. After all, in essence he simply said that he had been rehabilitated in prison, and isn’t that — along with punishment — one of the primary goals society hopes to accomplish by imprisoning individuals?

Given that fact, I was puzzled. How exactly did this particular posting somehow rise to the level of a parole violation?

According to one of the articles about this case, the judge ruled that the conduct in question violated the conditions of his parole relating to “community controls.” Specifically, the post was allegedly disrespectful toward the family of the 22-year-old victim who was a passenger in Fye’s vehicle and died when Fye crashed his car into a tree after driving his vehicle in a reckless manner by traveling 60 mph in a 20 mph zone.

The judge’s rationale makes no sense. It’s unclear how this post has anything to do with the victim, nor is it apparent why the victim’s family would be offended by it. Certainly, it’s plausible that someone might be offended by his obscene gestures, but that hardly seems to rise to the level of conduct sufficient to violate parole.

Of course, the reality is that parole conditions are often intentionally drafted in broad terms in order to provide more leeway to supervise and regulate a parolee’s conduct. And now that social media has become ubiquitous in our culture, the number of parole violations triggered by social media conduct will no doubt increase.

So, regardless of the validity of this particular violation, the lesson to be learned from this is that parolees should be wary of interacting on social media, lest their innocuous postings be interpreted as “improper” and be used to send them back to prison. A good lesson indeed, but the problem then becomes determining who will impart this advice to parolees? Certainly not their parole officers, who are arms of the state and typically have little concern for preserving the rights of parolees. And, parolees aren’t represented by legal counsel until a violation has been filed.

For that reason, astute criminal defense attorneys would be wise to prepare their clients for the realities of being on probation or parole in the 21st century. If you represent a client who is sentenced to prison time and faces the possibility of parole, advise your client of the risks encountered when one engages on social media while on parole. Similar admonitions should be provided to clients sentenced to probation.

We live in a digital age and online conduct can have real offline consequences. Never forget that when representing your clients.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software 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.


Criminal and privacy implications of drones

Stacked3This week's Daily Record column is entitled "Criminal and privacy implications of drones."  My past Daily Record articles can be accessed here.

***** 

Criminal, privacy implications of drones

Every summer I work on the annual update for the book that I co-author with Judge Karen Morris: Criminal Law in New York. As part of my responsibilities, I review all of the cases about the substantive elements of the crimes to which I’ve been assigned and then write about the implications of the newest holdings.

Of course technology has had an impact on New York’s Penal Law and is discussed in the cases about which I write. Oftentimes, the effects of technology are found in cases addressing aggravated harassment, criminal contempt, or crimes related to privacy rights such as unlawful surveillance. Not surprisingly, as someone who regularly writes about the intersection of law and technology, I am always particularly interested when technological advancements impact criminal law.

That’s why I was so intrigued by a recent news story about the legality of a man’s actions in shooting down a privately-owned drone that was hovering over his property. The drone was owned by his neighbor, who had purportedly flown it over the property with the goal of filming new construction that was occurring on the property.

Interestingly, New Jersey police charged the man who shot the drone with possession of a weapon for an unlawful purpose and criminal mischief. Certainly he damaged property that didn’t belong to him, but the drone that he damaged was being used to, in essence, spy on people and activities occurring on his land. So although he was certainly at fault, there were also privacy issues that were not addressed that were triggered by the use of the drone to obtain views of people and places that would not otherwise be possible absent the use of the drone.

This issue has already cropped up a number of times this year, including reports this summer of people using drones on beaches to obtain up close and personal views of women sunbathers, much to the consternation of said women. In most cases, the Penal Law has yet to be revised to address this type of privacy violation, although in New York, there have been a number of revisions to the Penal Law to address other types of privacy violations made possible through the use of new surveillance technologies.

For example, New York Penal Law Article 240 has been amended and interpreted in recent years to include communications made using the Internet and cellphones. Likewise, Penal Law Article 250 has been substantially revised to include unlawful surveillance occurring through the use of new and sophisticated technologies and now includes:

250.05 Eavesdropping. (E FELONY)
250.10 Possession of eavesdropping devices. (A MISD)
250.15 Failure to report wiretapping. (B MISD)
250.20 Divulging an eavesdropping warrant. (A MISD)

250.25 Tampering with private communications. (B MISD)
250.30 Unlawfully obtaining communications information. (A MISD)
250.35 Failing to report criminal communications. (B MISD)
250.45 Unlawful surveillance in the second degree. (E FELONY)
250.50 Unlawful surveillance in the first degree. (D FELONY)
250.55 Dissemination of an unlawful surveillance image in the second degree. (A MISD)
250.60 Dissemination of an unlawful surveillance image in the first degree. (E FELONY)

Clearly, the Penal Law recognizes the need to protect people from the increasing ability to capture and disseminate information intended to be kept private—and information that would have stayed private but for the use of sophisticated technologies. Unfortunately the Penal Law has not yet caught up with the use of drones for this purpose, which is undoubtedly why the New Jersey man who shot the drone was charged with crimes, while his neighbor was not.

Certainly the wiser course of action would have been to call the police as opposed to destroying the drone with a gun. But even so, the case raises some interesting questions about the future of privacy and the use of drones for surveillance purposes by both private individuals and governmental entities. Only time will tell how our legislators will react to the increasing use of drones for surveillance purposes. Let’s hope they enact measures designed to limit this type of invasive, unauthorized surveillance because privacy rights are more important than ever in today’s highly technologically advanced world.

Nicole Black is a Rochester, New York attorney and Director of Business Development and Community Relations at MyCase, intuitive web-based law practice management software 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 bereached at niki@mycase.com.


Lawyers: Use your head when mining social media for evidence

Stacked3This week's Daily Record column is entitled "Lawyers: Use your head when mining social media for evidence."

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

*****

Lawyers: Use your head when mining social media for evidence

Mining social media for evidence to support a case is all the rage these days. That’s because lawyers are finally comprehending the popularity and vast reach of social media. As a result, attorneys are quickly realizing that social media has the potential to be a gold mine of evidence in support of their clients’ cases.

Of course, as an attorney, you’re subject to ethical rules which necessarily affect how and when you can mine social media for evidence. Most lawyers are aware of these limitations and carefully consider their ethical duties before diving into social media to mine for evidence.

But not all of them, as evidenced by the actions of former Cuyahoga County, Ohio, Prosecutor Aaron Brockler, who has admitted to assuming the alias of a woman on Facebook and then contacting alibi witnesses of an accused killer whom he was prosecuting. He pretended to be a fictitious former girlfriend of the accused and then engaged the witnesses in a Facebook chat, during which he encouraged the witnesses to change their testimony.

Once his actions were discovered, Brockler was terminated for his unethical actions. Surprisingly, Brockler continues to maintain that his deceptive actions were perfectly acceptable and has been quoted by Sun News as saying: “Law enforcement, including prosecutors, have long engaged in the practice of using a ruse to obtain the truth … I think the public is better off for what I did.”

Clearly Brockler has failed to stay abreast of the multitude of ethics decisions that have been handed down over the past few years which address attorneys’ ethical obligations when mining social media sites for evidence. Overwhelmingly, ethics committees across the country have concluded that lawyers may not engage in deception when attempting to obtain information on social media, regardless of whether the party from whom information is sought is represented by counsel.

See, for example: Oregon State bar Ethics Committee Op. 2013-189 (lawyer may access an unrepresented individual’s publicly available social media information but “friending” known represented party impermissible absent express permission from party’s counsel); New York State Bar Opinion No. 843 [9/10/10] (attorney or agent can look at a party’s protected profile as long as no deception was used to gain access to it); New York City Bar Association Formal Opinion 2010-2 (attorney or agent can ethically “friend” unrepresented party without disclosing true purpose, but even so it is better not to engage in “trickery” and instead be truthful or use formal discovery); Philadelphia Bar Association Opinion 2009-02 (attorney or agent cannot “friend” unrepresented party absent disclosure that it relates to pending lawsuit); San Diego County Bar Association Opinion 2011-2 (attorney or agent can never “friend” represented party even if the reason for doing so is disclosed); and New York County Lawyers Association Formal Opinion No. 743 (attorney or agent can monitor jurors’ use of social media, but only if there are no passive notifications of the monitoring. The attorney must tell court if s/he discovers improprieties and can’t use the discovery of improprieties to gain a tactical advantage).

Obviously, Brockler didn’t get the “no trickery” memo, since the entirety of his Facebook interactions were rooted in deception. He also seems incapable of understanding the concept that lawyers are governed by a code of ethical conduct not applicable to police officers.

Perhaps now that he has more free time on his hands, he’ll make good use of it by studying the ethical rules of conduct governing Ohio attorneys. And, the next time you decide to mine social media for evidence, why not ensure that you’re complying with the applicable ethical rules of conduct as well? That way, unlike Brockler, you won’t put your job — and quite possibly your law license — at risk.

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.

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When is social media contact criminal?

Stacked3This week's Daily Record column is entitled "When is social media contact criminal?"

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

*****

When is social media contact criminal?

The online world is simply an extension of the offline world. So it’s no surprise that people’s behavior on social media sites can result in criminal charges. But the complexity of the relationships and privacy settings on different social media sites can sometimes complicate the process of proving that the conduct that occurred was in fact criminal.

This very issue arose recently in a case out of Florida — O’Leary v. State, 109 So. 3d 874 (Fla. Dist. Ct. App. 2013).*

In this case, the defendant was accused of sending written threats to kill or do bodily harm in violation of section 836.10, Florida Statutes (2011). Specifically, it was alleged that he posted on his personal Facebook “wall” statements — directed toward his relative and her partner — which constituted threats of serious death or bodily injury. The post was viewed by one of his cousins, who then informed his uncle of the post, who then in turn reported the post to the relative who had been threatened.

In reaching its decision, the court explained that controlling precedent established that the statute was violated when “1) a person writes or composes a threat to kill or do bodily injury; 2) the person sends or procures the sending of that communication to another person; and 3) the threat is to the recipient of the communication or a member of his family.”

The court then noted that a “communication” occurred since electronic communications were specifically enumerated in the statute. As such, the primary issue to be determined on appeal was whether the accused “sent” the message by virtue of his posting it on his personal Facebook page, an issue of first impression in Florida.

The accused argued that posting threats to his Facebook was the equivalent of simply “publishing” a message, which, in and of itself, does not constitute a violation of the statute since he took no other steps to ensure that the threat was seen by the people mentioned in the posting.

The court, however, disagreed, holding that to constitute “sending” under the statute, all that is required is that the message be posted where another can see it, whether it’s the person being threatened or a relative of said person.

The court explained that by posting the threats to his Facebook wall, the defendant intended for all of his “friends” to see it, including the cousin that he shared with the victim: “Given the mission of Facebook, there is no logical reason to post comments other than to communicate them to other Facebook users. Had appellant desired to put his thoughts into writing for his own personal contemplation, he could simply have recorded them in a private journal, diary, or any other medium that is not accessible by other people. Thus, by the affirmative act of posting the threats on Facebook, even though it was on his own personal page, appellant “sent” the threatening statements to all of his Facebook friends, including (his cousin).”

The court reached the right decision in this case, in part because it wisely analogized the online conduct to similar offline conduct. As I’ve often said, comparing online conduct to offline conduct leads to the correct analysis more often than not, since doing so makes the online conduct more understandable and accessible, despite its less familiar setting.

Online interaction may be a relatively new phenomenon, but when it comes right down to it, it’s no different than offline behavior. And in the case at hand, the medium didn’t change the message, it simply altered the channels of distribution.

* Brought to my attention by Rochester criminal defense attorney Gary Muldoon.

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.

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Book Review: Paperno’s ‘Representing the Accused’ a step-by-step guide for criminal defense attorneys

 

Stacked3A special edition article that I recently wrote for the Daily Record column is entitled "Book Review: Paperno’s ‘Representing the Accused’ a step-by-step guide for criminal defense attorneys."

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

*****

Book Review: Paperno’s ‘Representing the Accused’ a step-by-step guide for criminal defense attorneys

In 1996, I stepped into a courtroom as an assistant public defender for the very first time. I had no idea what I was doing. I had only recently been hired by the Monroe County Public Defender’s Office after interning there for a few months. I had some training from the attorney whose caseload I was taking over and I even had a mentor assigned to me. Her name was Jill Paperno and she was an extremely experienced felony attorney. She had a wealth of information to offer me, but truth be told, at the time, it was incredibly overwhelming.

So, like most public defenders, I learned on my feet. And, I became a very good criminal defense attorney over time — with a lot of help from my more experienced colleagues at the office. Whenever I ran into an issue or had a question, I would pop my head into someone’s office and got the answer I was seeking in no time.

But I’ve always thought that there had to be a better way. If only I could have harnessed all the information and collective experience of my colleagues and my mentor in one place. If only I’d had a manual that walked me through the process of representing someone accused of a crime, from the initial intake process through every stage of representation. If only someone with decades of criminal defense experience would take the time to sit down and write a step-by-step guide for new and less experienced attorneys with an interest in criminal defense. Wouldn’t that be nice?

Well sure enough, just 16 years after I first set foot in a courtroom, my wish came true: the “how-to” guide that I had envisioned for young criminal defense attorneys was finally published. It’s called “Representing the Accused: A Practical Guide to Criminal Defense” and coincidentally enough, was written by my former Public Defender mentor, Jill Paperno.

This book is everything I had imagined — and more. It provides young lawyers with advice on just about every aspect of every stage of representing a criminal defendant. From file organization and effective client communication to subpoenaing information and trying a case, this book covers all the bases.

Paperno starts with practice management basics — things you don’t even realize are important when you first start practicing law, in large part because most law schools completely fail to teach lawyers about the ins and outs of managing a case from start to finish. But as you quickly learn when your first criminal defense file grows from a single sheet of paper to hundreds, a large part of effective case management revolves around effective organization of your files.

Paperno tackles this incredibly important, albeit not exactly enthralling topic, at the beginning of the book explaining: “Although a career in criminal defense may be one of the most exciting ones you can select, there are certain kinds of excitement you want to avoid — the excitement of being unable to find an important document or a particular file, for example. Thus, one of the keys to a successful practice is developing the less exciting skill of organization.” Then over the next 18 pages, she provides detailed tips for organizing files gleaned over her 25-year career in criminal defense, ranging from document organization and management to file management and storage, both paper and digital.

From there, she carefully and concisely walks young attorneys through every aspect of a criminal case. In Chapter 3, she offers an assortment of general practice tips, including her warning that as a criminal defense attorney, you should develop a thick skin and prepare to be disliked by just about anyone you encounter in a case, including opposing counsel, judges and witnesses.

Another important tip —sometimes strange things are true. Paperno explains, “Sometimes a client will tell you something that seems completely ridiculous. But before you discount it, if it supports the defense, investigate whether it might be true. Repeatedly over the years, I have been told things I thought were absurd, but learned that there was truth to the claim and eventually used the information to support a defense.”

She then provides a broad overview of the life of a criminal case in Chapter 4 and in subsequent chapters addresses each and every stage of a criminal case, starting with the initial interview of your client in Chapter 5. From there, each chapter focuses on a specific stage of the case, starting with your client’s arrest and arraignment, moving on to pre-trial procedures, including choosing a defense theory, investigating the case, drafting motions, conducting hearings, and finally, at the end of the book, she devotes one chapter to trying cases and another to sentencing.

From discovery and subpoenas to cross-examination techniques and sentencing considerations, Paperno provides invaluable tips and advice from the trenches throughout the book, including this gem in Chapter 9 — a sound piece of advice that clearly comes straight from the mouth of a lifelong criminal defense attorney: “The prosecutor will be an important source of information in your case. But should you rely exclusively on information provided by the prosecutor? The short answer: a definite and resounding NO.”

If I had to come up with one criticism of this book, it would be that it glosses over the importance of, and the effects of, technology as it relates to both the physical management of files and in the investigation of a criminal case. Although these issues aren’t ignored, they are given no more than a passing nod, something I suspect has more to do with the fact that this book was a long time in the making and technology has advanced incredibly rapidly over the last few years.

It is difficult to keep pace with rapidly changing technologies, whether it’s mining social media for evidence or storing and managing client files in the cloud. So the lack of focus on the effects of technology in this book is understandable, but hopefully will be addressed more thoroughly in the second edition of this book. Another minor critique — an index in a subsequent edition would also be a nice addition.

These two small points aside, I highly recommend this book. It provides much-needed information for young lawyers and should, in my opinion, be a part of every law school curriculum. Paperno’s book is an incredible resource and one that I wish had been available to me when I started practicing criminal law back in 1996. The bottom line: this book is a must-have for all newly graduated and aspiring criminal defense attorneys.

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.

When judges, jurors and the Internet collide

Stacked3This week's Daily Record column is entitled "When judges, jurors and the Internet collide."

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

*****

When judges, jurors and the Internet collide

In the past, I’ve described misguided attempts by judges to excessively penalize jurors for using social media or the Internet during the pendency of trials. In fact, over the last year, judges have gone so far as to fine or jail jurors who have used social media during trial, and legislators have proposed laws that would criminalize such conduct. This despite the fact that jurors have been violating judges’ orders not to research or discuss pending cases since the dawn of jury trials.

But for some reason, the use of social media and the Internet by jurors really bothers some judges. In fact, it just gets their goat. The question is: why?

Perhaps it’s because many judges don’t understand social media so they find it to be more threatening than traditional methods of violating their orders, such as reading about a case in the newspaper, researching issues using encyclopedias, or discussing the case with their spouses over dinner. Or perhaps it’s because use of the Internet leaves a digital trail, making violation of judicial orders easier to prove.

Or maybe it’s because jurors these days aren’t as smart as they used to be and can barely restrain themselves from rushing out immediately after a verdict is handed down and blabbing to reporters all about the different ways that they’ve used the Internet to violate judicial orders.

I’m not exactly sure what the answer is, but I’ do think that it was a combination of the three theories above that lead to the latest brouhaha stemming from a juror allegedly using the Internet during a trial to research issues raised during trial.

The case at issue arose in Tampa, Fla., in the aftermath of a federal criminal trial in which the defendant, Buju Banton, a reggae star, was convicted of drug charges. Following the conclusion of the trial, the Broward/Palm Beach New Times quoted one particularly clueless juror as saying, “I would get in the car, just write my notes down so I could remember, and I would come home and do the research.”

Shortly thereafter, defense counsel wisely brought a motion seeking a new trial. The news of the alleged Internet research rankled U.S. District Court Judge James Moody so much that on Jan. 8, he issued, post haste, an ex parte order requiring federal marshals to enter the wayward juror’s home and seize her computers.

This move caused the prosecutor to spring into action, and, motivated by what I can only assume was an intent to hopelessly confuse everyone involved, he objected on grounds usually made by defense counsel. The prosecutor raised both privacy and due process concerns, arguing that the court was required to issue a warrant supported by probable cause.

He explained the basis of that argument in his motion: “The order theoretically would permit the marshal to enter the juror’s home, business or vehicle and take any computer device (desktop, laptop, tablet, smartphone) found therein. The order allows for these devices to be held indefinitely, without any regard for the disruption the loss of personal computers might have on Ms. Wright’s affairs.”

Either the prosecutor’s thinly veiled attempt at obfuscation was a success or the judge was swayed by his cogent constitutional arguments. Because the next day, on Jan. 9, in a sudden and unexpected turn of events, the judge abruptly rescinded his order and instead instructed the rogue juror to retain counsel and bring the hard drive of any computer that she owns or the computer itself to an upcoming hearing.

So, the saga in Tampa continues. Will the accused juror be excessively penalized because she chose to violate the judge’s order by using a computer instead of a newspaper or encyclopedia? Will the prosecutor remember to take off his defense counsel hat once this hearing is over? Will our reggae star get a new trial?

Also of interest — will the legal profession ever become accustomed to “newfangled technologies” like the Internet? Or, will we insist on exhibiting knee jerk, negative reactions every single time a new technology comes along and affects the practice of law — like some kind of warped legal edition of “Groundhog Day?” And, most importantly, if we choose the latter, will we choose Bill Murray to play the leading role or should we choose someone younger and more dope, like Zac Efron?

Tune in tomorrow and see.

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.

 

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NY judge rules public tweets are public

Stacked3This week's Daily Record column is entitled "NY judge rules public tweets are public."

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

*****

Much has been written about People v. Malcolm Harris, a criminal case pending against an Occupy Wall Street protester charged with disorderly conduct based upon allegations that he disrupted traffic on the Brooklyn Bridge while protesting.

In part, the reason for much of the attention is that it turns out Mr. Harris had a Twitter account, to which it is alleged that he posted about the protests as he was protesting. And, not surprisingly, the prosecution is very interested in gleaning information from his social media postings about his whereabouts and activity around the time of his arrest.

Accordingly, a few months ago, the prosecution served a subpoena on Twitter, seeking access to information related to Harris’ Twitter account. Harris’ then moved to quash the subpoena, but his motion was denied on the grounds that Twitter owned the data and thus Harris lacked standing to challenge the subpoena.

Following that decision, Twitter then moved to quash the subpoena and on June 30, New York City Court Judge Matthew A. Sciarrino Jr. issued ruled on Twitter’s motion to quash in People v. Harris, 2012 NY Slip Op 22175.

As explained in the decision, the order that Twitter sought to quash “required Twitter to provide any and all user information, including email addresses, as well as any and all tweets posted for the period of September 15, 2011 to December 31, 2011… It … deals with tweets that were publicly posted rather than an email or text that would be directed to a single person or a select few.”

So, contrary to the assertions of some who have commented on this ruling, from the language of the decision, it appears that direct messages, which are private messages sent between two individuals and are thus akin to emails or texts, were not sought by the prosecution. The only data sought by the prosecution was Harris’ public tweets and his user information.

In reaching its determination, the court wisely considered offline analogies for the online situation at issue. Specifically, the court likened a public tweet to yelling loudly in a public place: “Consider the following: a man walks to his window, opens the window, and screams down to a young lady, ‘I’m sorry I hit you, please come back upstairs.’ At trial, the people call a person who was walking across the street at the time this occurred. The prosecutor asks, ‘What did the defendant yell?’

“Clearly the answer is relevant and the witness could be compelled to testify. Well today, the street is an online, information superhighway, and the witnesses can be the third party providers like Twitter, Facebook, Instragram, Pinterest, or the next hot social media application.”

I think the court’s analogy is particularly applicable to Twitter, as opposed to other social networks, since tweets from unprotected accounts, which make up the vast majority of Twitter accounts, can be read and accessed by anyone who chooses to view them. This is true regardless of whether a Twitter user follows or is followed by the person viewing the tweets. In other words, unprotected tweets are public messages relayed to anyone with Internet access who cares to view them.

As such, the court concluded, correctly so, in my opinion, that there is no reasonable expectation of privacy in public tweets: “If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy. There is no proprietary interest in your tweets, which you have now gifted to the world. This is not the same as a private email, a private direct message, a private chat, or any of the other readily available ways to have a private conversation via the internet that now exist … Those private dialogues would require a warrant based on probable cause in order to access the relevant information.”

After holding that public tweets are public, the court held that pursuant to the operation Stored Communications Act (“SCA”) (18 USC §2701 et seq.), all content requested pursuant to the subpoena that was more than 180 days old would be turned over to the prosecution, but any data less than 180 days old would require a warrant.

I think this issue was correctly decided by the court. Don’t get me wrong — I have grave concerns about unfettered governmental access to confidential electronic data stored with third parties and believe that that the SCA is in dire need of revision in order to keep up with the times.

But, unlike much of the private information stored with third-party providers, public tweets are just that: they’re public. And Twitter users who have agreed to Twitter’s terms of use and claim otherwise are deluding only themselves.

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.


Proposed cyberbullying law is unnecessary

Stacked3This week's Daily Record column is entitled "Proposed cyberbullying law is unnecessary."

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

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Proposed cyberbullying law is unnecessary

Recently, Monroe County Legislators Mike Barker and Carmen Gumina proposed legislation that would make cyberbullying a crime. Under the bill, cyberbullying directed toward a minor would constitute a Class A misdemeanor in Monroe County, punishable by up to a year in jail.

The crime of cyberbullying would occur where the defendant engaged in the following conduct: “(W)ith intent to harass, annoy, threaten or place another in fear of personal injury, engaging in a course of conduct or repeatedly committing acts of abusive behavior over a period of time by communication or causing a communication to be sent by mechanical or electronic means, posting statements or images on the Internet, through a computer network, or via cell or smart phone. Acts of abusive behavior shall include, but not limited to: taunting; threatening; intimidating; insulting; tormenting; humiliating; disseminating sexually explicit photographs, either actual or modified, of a minor; disseminating the private, personal or sexual information, either factual or false, of a minor without lawful authority.”

WHAM (13wham.com) recently reported that Gumina explained the law was needed because current laws have not kept up with technology: “There is no law around posting pretty nasty things about your peers. … It’s almost impossible now because there is no law on the books … At least there will be a law in the books that could help law enforcement prevent bullying from happening in the first place.”

While Gumina’s intentions are no doubt well-intentioned, his assertion that no other laws address this type of conduct is simply false.

I am the co-author, along with Brighton Town Court Justice Karen Morris, of the Thomson West treatise “Criminal Law in New York,” a book that thoroughly examines the substantive crimes defined in New York’s Penal Law.

As part of my preparation for the yearly supplement to this treatise, I review all new New York cases addressing the crime of aggravated harassment in the second degree, which is, just like the cyberbullying law proposed by Barker and Gumina, a Class A misdemeanor.

Penal Law s. 240.30(1) provides that a person is guilty of aggravated harassment in the second degree “when, with intent to harass, annoy, threaten or alarm another person, he or she:

1. Either (a) communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm; or

(b) causes a communication to be initiated by mechanical or electronic means or otherwise with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm …”

When Penal Law s. 240.30(1) was originally enacted, it required that the communication occur “by telephone, or by telegraph, mail or any other form of written communication.” In 2008, the statute was amended to include communications delivered via digital means and the following language was added: “by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication.”

In keeping with the legislative intent behind the 2008 amendment, New York courts have broadly interpreted this section to include harassing communications made using mechanical means, including the Internet, so long as the communication was directed at the complainant, People v. Munn, 179 Misc. 2d 903, 688 N.Y.S.2d 384 (City Crim. Ct. 1999).

Also covered by this section are unwelcome messages transmitted via online social networking sites or online forums, People v. Rodriguez, 19 Misc. 3d 830, 860 N.Y.S.2d 859 (City Crim. Ct. 2008); People v. Munn, 179 Misc. 2d 903, 688 N.Y.S.2d 384 (City Crim. Ct. 1999). Similarly, emails and text messages are also forms of communication contemplated by Penal Law s. 240.30(1), M.G. v. C.G., 19 Misc. 3d 1125(A), 862 N.Y.S.2d 815 (Fam. Ct. 2008); People v. Limage, 19 Misc. 3d 395, 851 N.Y.S.2d 852 (City Crim. Ct. 2008).

So, contrary to Gumina’s contention, the proposed cyberbullying bill is unnecessary. The conduct prohibited by the bill is already unlawful in New York pursuant to aggravated harassment in the second degree and passing the proposed legislation would duplicate the current law and cause confusion in the prosecution of new crimes.

Nicole Black is a Rochester, New York attorney and the Vice President of Business Development and Community Relations at MyCase, a powerful and intuitive cloud-based law practice management platform. 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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New York Court of Appeals grapples with Internet porn

Stacked3This week's Daily Record column is entitled "Court of Appeals grapples with Internet porn."

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

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Court of Appeals grapples with Internet porn.

Last week, the New York Court of Appeals handed down its decision in People v. Kent, 2012 N.Y. Slip Op. 03572. In this decision, the court considered whether the defendant, by simply viewing images of child pornography on his computer screen, had knowingly procured or possessed child pornography in violation of Penal Law § 263.15 (Promoting a Sexual Performance by a Child) and Penal Law § 263.16 (Possessing a Sexual Performance by a Child).

The issue presented was a narrow one and required an analysis of whether “accessing and displaying” the images in a Web browser — where the browser, unbeknownst to the defendant, stored the images in its Web cache — constituted “control” over the images sufficient to amount to procurement or possession of the images.

After analyzing the applicable statutory definitions, case precedent, and the legislative intent behind the enactment of the relevant statutes, the court concluded that in the above scenario, sufficient “control” was not shown:

“We hold … that regardless of a defendant’s awareness of his computer’s cache function, the files stored in the cache may constitute evidence of images that were previously viewed; to possess those images, however, the defendant’s conduct must exceed mere viewing to encompass more affirmative acts of control such as printing, downloading or saving.”

The court then explained that New York’s current statutory framework was enacted prior to the large scale use of the Internet and was thus arguably in need of an update to include language like that found in the correlating federal statute:

“The federal statute regulating conduct related to child pornography, 18 USC § 2252A, provides a useful contrast. Section 2252A was amended in 2008 to provide that any person who either “knowingly possesses, or knowingly accesses with intent to view, any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography” is subject to a fine and imprisonment …”

I agree with the court’s analysis of the law as written and believe that the law is in need of revision in order to keep up with changing technologies.

That being said, what interested me most about this decision was not the court’s holding but the discussion found in the concurring opinions centered around whether simply viewing child pornography should be a crime.

In his concurring opinion, Judge Smith agreed that the legislative intent behind the New York statutes was to target consumers of child pornography, but he seems to (mistakenly) believe that those who simply view it do little to contribute to demand for child pornography since their actions don’t profit those who distribute it:

“I … acknowledge that, as Judge Graffeo says, Penal Law §§ 263.15 and 263.16 are designed to target the consumers of child pornography, in the hope of eliminating the market for it. … Under Judge Graffeo’s reading, someone who does no more than click on a link for the purpose of looking at a pornographic picture for free — someone who has never interacted with a child victim, has never copied, downloaded or saved a pornographic picture of a child, and has never put a penny in the pocket of a child pornographer — is subject to up to seven years in prison for a first offense (see Penal Law § 70.00[2][d] ). This is surely a stringent punishment for someone whom many would think more pathetic than evil.”

What Judge Smith doesn’t take into account is that the act of simply visiting most websites results in profits for the website owners. Even owners of websites that require no entry fee for the viewing of some images — especially those as profit-savvy as the purveyors of online pornography — are undoubtedly earning passive income from, at the very least, ads appearing on the site.

As the website receives more traffic, it becomes more appealing to advertisers and the website owner can thus charge more for ads placed on the site. So, every time someone visits a free website that contains images of child pornography, that individual is undoubtedly lining the pockets of — and increasing the future earning potential of — distributors of child pornography.

Accordingly, the inquiry should not focus on whether the consumer must pay a fee to access the images, since the mere act of visiting these websites supports the child pornography trade. If the legislative intent is to decrease demand by instilling the fear of prosecution in those who might view online child pornography, then the act of simply viewing any online image of child pornography should be unlawful. Whether payment is required for the “privilege” of doing so is irrelevant; the producers of online child pornography are profiting from the violation of our children nonetheless.

Nicole Black is a Rochester, New York attorney and the Vice President of Business Development and Community Relations at MyCase, a powerful and intuitive cloud-based law practice management platform. 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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