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When emojis and the law collide

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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When I started writing about the intersection of law and technology in 2006, emojis were a sidebar in the world of communication. Until the release of the first smartphone, the iPhone, emojis were typically used only in certain online chat rooms. But with the release of the iPhone in 2007, people were able to use emojis more often using various messaging apps. And then when iOS 6 was released in 2012, iPhone users were able to easily include emojis in Apple’s native messaging platform. From there, emojis become a common part of everyday communication.

Of course, as is often the case, whenever technological advancements occur - especially in the realm of communications - a notable impact on legal proceedings soon follows. For example, in 2011 I wrote a column focused on a witness intimidation case covered in the Rochester Democrat and Chronicle. It was a federal court case where the defendant was alleged to have “poked” someone on Facebook, and in doing so was alleged to have intimidated a witness. The judge conducting the arraignment admitted that he lacked sufficient knowledge regarding the nature of a Facebook poke, as did the attorneys appearing on the matter. The judge then asked the courtroom spectators if anyone could explain the concept and refused to move forward with the arraignment until he was satisfied by the explanation provided by a reporter who happened to be in the courtroom.

That was the very first time I had encountered a report of social media impacting a criminal matter so I found it to be of great interest. Of course, since 2011, social media references in court cases have increased exponentially. Notably, that same phenomenon is now occurring with emojis as they become commonplace in many of our digital communications, and references to emojis and emoticons in court cases have increased significantly in recent years.

In 2004, there was a single case that referenced the word “emoticon.” Fast forward to 2012, and there were 7. In 2015, there were 15 cases that referenced either the terms “emoji” or “emoticon,” and last year that number had increased to 53. (For a full list of references see this post.)

The most recent case (from March 12th) that references the term “emoji” appeared in a California Court of Appeal case that also involved allegations of intimidating a witness. In People v. Smith, 2019 WL 1122768, at issue was whether the evidence, which included Facebook comments that included emojis, was sufficient to convict the defendant of intimidating a witness.

The Court concluded that the emoji evidence at issue supported the defendant’s conviction of intimidating the witness, “T.R.,” a 15-yo victim in a pimping case:

“The comments contained emojis of rodents. The later comments, following T.R.'s other name, “[T.W.],” included gunshot emojis, gun emojis, and the statement, ‘share my post.’ The four gunshot emojis and three gun emojis were evidence Smith was seeking to encourage other viewers of his Facebook page to shoot T.R. His comments included three emojis, each representing a hand with the thumb and forefinger touching and the other fingers pointed up, representing the letter “b,” a symbol of the Bacc Street Crips. The jury could have reasonably concluded from the photograph and comments that Smith intended to communicate that T.R. was a despised female who had told on Washington, and she was therefore a “rat” or snitch whom members of the gang should kill to assure she did not testify against Washington at his trial.

Additionally, Smith “hashtagged” T.R., notifying her of the post. This evidenced an intent that she see the photograph and comments and cower accordingly, i.e., by not testifying against Washington at his trial.”

It’s undoubtedly a bit strange to read a court’s attempt to interpret the cartoon-like characters that are finding their way into our daily communications. But expect to see more of this - much more - as our use of electronic forms of communication continue to increase. Like it or not, emojis - and technology in general - are here to stay.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software for small law firms. She 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 Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com.