Prosecutors, social media evidence, and ethics
NY judge weighs in on whether ‘tagging’ violates order of protection

Defining "Social Media" For Probationers

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

*****

Defining "Social Media" For Probationers

It seems lawyers can’t escape social media, no matter how hard we try. As I’ve written about previously, social media is now being used as evidence in cases, lawyers are using it to research jurors, and people are being charged with crimes relating to their actions taken using social media. And once those individuals are convicted, many of them are placed on probation and their use of social media is often limited by the terms of their probation.

That’s exactly what happened to Hector Salvador Lopez, a young man in California who was sentenced to a three-year “blended sentence,” which included probation, after pleading no
contest to a count of vehicle theft. One of the conditions of his probation was that he provide his probation officer with the passwords to any “social media sites” that he participated on.

Mr. Lopez challenged that condition in People v. Lopez, 2016 WL 297942 (Cal. App. Ct. Jan. 25, 2016) (online: http://www.courts.ca.gov/opinions/nonpub/H041713.PDF), claiming that it was unreasonable and unconstitutionally vague. He asserted that the term “social media site” was unclear because it could apply to any number of websites, including sites with a social element but which are not commonly referred to as social media sites.

The Court explained his position as follows: “In support of this argument, defendant brings up the example of a newspaper Web site where individuals are able to create accounts and comment on news stories. These Web sites involve a degree of social interaction with other users, and is away for users to share and promote content with each other. Defendant insists that it is unclear whether these Web sites would be considered social media sites under the imposed condition.”

The Court rejected his argument, explaining that there were commonly accepted definitions of social media and cited definitions found in the Oxford Dictionary. The court then explained that based on those definitions: “(T)he term ‘social media,’ although not mathematically precise, has a reasonably certain definition: Web sites where users are able to share and generate
content, and find and connect with other users of common interests. And, the term was
made sufficiently specific by the trial court when it clarified that the probation condition
covered social media sites including Facebook, Instagram, Myspace, Mocospace, or
anything similar. Accordingly, for the aforementioned reasons, we do not find that the
term “social media sites” to be unconstitutionally vague and reject defendant’s conjecture
that the condition could be interpreted to include news Web sites.”

Next, the court addressed Mr. Lopez’s assertion that the term “sites” was vague, since it was unclear whether only sites accessible via mobile devices were included. The Court again rejected his assertion and offered the following explanation: “Defendant claims that it is unclear whether, based on this language, social media applications (i.e., applications that only have an interface accessible on a cell phone or tablet device) that do not have a Web site component would be covered by the probation condition. We disagree that the condition is vague in this regard. Although the term references ‘sites,’ we believe it is reasonably clear that the probation condition intends to include all social media that has an online component. Read this way, there is no vagueness in the condition’s use of the term ‘sites.’”

Of all of the Court’s conclusions, I found this one to be the most puzzling. The Court relies on the assumption that the term “online” is a concept that has an accepted definition and is commonly understood. When I first read the Court’s statement, it confused me since I’ve always thought of “online” activities as those conducted via websites. After thinking about it more, it’s possible “online” could simply mean that you access the site via an Internet connection—something you do using any Internet-enabled device, whether it’s a computer or a mobile device. But for the Court’s conclusions to be sound, it would have made sense to tie up that loose end and delve into that issue more thoroughly.

Of course, that gap in the Court’s analysis is a perfect example of the difficulties courts encounter when attempting to specify, limit, and define ever-changing concepts such as “social media” and “sites.” Because these concepts are constantly evolving, courts would be wise to draft broad, elastic definitions in their decisions that will withstand the test of time, lest their conclusions be rendered outdated as soon as the ink dries.

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.