Criminal Law

The Stalking Statute And Email: Muddling Through 21st Century Issues

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

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Regular readers of my column know that every summer I work on the annual update to the book, Criminal Law In New York, which I co-author with Judge Karen Morris. During the course of my research for the update, I read thousands of criminal law cases handed down over the past year with an eye toward locating those holdings that affect substantive issues relating to the Penal Code. And, given my passion for the intersection of law and technology, I also take an interest in those cases where technology impacts the Penal Code. People v. Marion, 49 Misc.3d 562 (Crim. Ct. City of New York, 2015) is just such a case.

One of the issues in People v. Marion is whether the complainant's work e-mail address constituted a “place of employment or business” for purposes of the stalking statute. The relevant portion of the accusatory instrument alleged the following:

From January 17, 2015 to April 17, 2015, I have received over 100 Instagram messages from the defendant. Specifically, one of the messages stated, “I wish you would let me find you tonight” and “I'll always be by your side.” From January 17, 2015 to April 8, 2015, I have received approximately 10–15 emails from the defendant at both my work and personal email addresses. From January 17, 2015 to January 19, 2015, I have received approximately 80 [calls] from a phone number which I know belongs to the defendant.

In reaching its decision, the court noted that the only allegation that amounted to a possible violation of\of Penal Law § 120.45(3), the stalking statute, was the assertion that the defendant sent repeated emails to the complainant at her work email address. Next, the court explained that the People were required to include allegations in the accusatory instrument establishing that the defendant “intentionally, and for no legitimate purpose, engage(d) in a course of conduct directed at a specific person, and (knew) or reasonably should know(n) that such conduct ... is likely to cause such person to reasonably fear that his or her employment, business or career is threatened, where such conduct consists of appearing, telephoning or initiating communication or contact at such person's place of employment or business, and the actor was previously clearly informed to cease that conduct.”

The court concluded that the allegations against the defendant were insufficient since the “‘fair import’ of the phrase ‘place of employment or business’ is that it refers to an actual, physical location.” The court reasoned that subsection 2 of Penal Law s.120.45 sufficiently addressed the conduct alleged since included the actions of “repeatedly emailing a person with no legitimate purpose other than to cause her emotional harm.”

I believe that the court missed the mark with this conclusion, both in terms of: 1) its assertion that subsection 2 covered the alleged conduct and 2) its conclusion that subsection 3 required that the conduct occur at the physical workplace.

First, subsection 2 requires a higher standard of harm —that material harm be shown — whereas subsection 3 only requires that the conduct is “likely to result in harm.” Undoubtedly the reason that a lower standard of harm was required for subsection 3 is due to the fact that individuals have more at stake when they are stalked at work; not only are they emotionally affected, they may be financially affected as well. Thus, a lower level of harm is required to be shown.

So the court’s assertion that subsection 2 necessarily covers all situations where emails are sent to a person’s business email address is incorrect. A person may receive emails at a business address that are “likely to result in harm” due to the possibility that the employer may discover them but do not actually result in harm as required by subsection 2.

Next, the statute specifically forbids repeated contact that includes “initiating communication…at such person’s place of employment or business.” Sending an email to an individual’s work address undoubtedly constitutes the act of communicating with someone at their place of business. That’s the entire point of a “work” email address versus a personal one. A work email address is where people receive the vast majority of communications relating to their work, and oftentimes, employers have full access to all emails received in that account.

For those reason, I submit that the court interpreted this subsection far too literally, through a narrow, 20th century lens. I am confident that this myopic view of Penal Law 125.45(3) will not withstand the test of time.

 

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.


New York judge rules Instagram contact violates order of protection

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

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Every year, as I work on the annual update to the book, Criminal Law In New York, which I co-author with Judge Karen Morris, I take notice when I come across cases where social media and criminal law intersect. People v. Lemons, 2016 WL 1735472, which was pointed out to me by my fellow Daily Record columnist Scott Malouf, is just such a case.

At issue in People v. Lemons is whether actions taken by the defendant using the social media platform Instagram constituted a communication that was in violation of a pending order of protection. In the accusatory instrument the complainant alleged that there was an order of protection in place that forbade the defendant from contacting her by electronic or other means and that the defendant violated it by sending her a “follow” request on Instagram.

The defendant brought a motion to dismiss the accusatory instrument for facial insufficiency, contending that the follow request he allegedly initiated via Instagram, which caused a notification to be sent to the complainant, via Instagram did not violate the order of protection because he did not directly communicate with her.

The Court rejected his argument, concluding that the request that he allegedly initiated through Instagram was, in fact, a communication: “(T)he Court has little trouble concluding that when the defendant sent the complainant a message through the Instagram app this was “communication or any other contact by ... other electronic or any other means,” and was forbidden by terms of the order of protection. The electronic communication originated with the defendant and ended up in the complainant's Instagram inbox, where she saw it.”

According to the Court, he effectively communicated with the complainant even thought it was not a direct communication. The Court explained that he initiated the connection request knowing it would set a series of events in motion which would result in a notification from Instagram to the complainant regarding his interest in connecting with her on the platform: “(E)ven though the specific allegation in the information is that the communication did not flow directly from the defendant to the complainant, since defendant asked Instagram, and not the complainant herself, for permission to view the complainant's page, and Instagram forwarded that request to her. There is no reason to conclude that this forwarding was anything other than an automatic and automated feature built directly into the app, and thus there is also no reason to conclude that the communication was made only to Instagram, and not to the complainant.”

As is often the case in well-reasoned decisions issued by judges regarding online interactions, Judge Statsinger compared the defendant’s actions in this case to similar “offline” behavior that was analogous to the actions alleged to have been taken by the defendant: “The situation described here is exactly the same as if the defendant, using his iPhone, had asked Siri to place a call to the complainant, instead of dialing her number himself. Just as in this hypothetical there could be no legitimate claim that the defendant communicated only with Siri and did not himself telephone the complainant, here there can be no legitimate claim that the defendant communicated only with Instagram, and not with the complainant.”

This was an interesting issue of first impression in New York and Judge Statsinger did a great job analyzing the issues and provided a clear, concise, and logical decision. One more social media platform has now been addressed in this context. Rest assured—many more will follow.

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.


NY judge weighs in on whether ‘tagging’ violates order of protection

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

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NY judge weighs in on whether ‘tagging’ violates order of protection

Social media permeates every aspect of our lives so it’s not surprising that online interactions can sometimes trigger criminal prosecutions. That’s why, in the past I’ve discussed how social media and other online communications can constitute aggravated harassment or violate pending orders of protection.

That’s exactly what occurred in People v. Gonzalez, Case No. 15-6081M. This decision was handed down by Westchester County Supreme Court Justice Susan Capeci in January of this year and addressed the issue of whether certain Facebook activities violated an order of protection.

At issue was whether the defendant committed criminal contempt in the second degree when she “tagged” the protected party in posts made to Facebook. In this case, an order of protection was in place in favor of the complainant and required that the defendant ”refrain from communication or any other contact, directly or indirectly through third parties, by mail, telephone, e-mail, voice mail or other electronic or any other means ...."

It was alleged that the order of protection was violated when the complainant received notifications from Facebook that the defendant:

did "tag" [the protected party] in two Facebook posts the "first stating
"Stupid." The second post the defendant tagged [the protected party] in stated: "You
and your family are sad:(sonia and especially maribel!! You guys have to come stronger
than that!! I'm way over you guys but I guess not in ya agenda.

The defendant did not deny the conduct but instead contended that the conduct alleged—that she “tagged” the complainant in two Facebook posts—was not specifically prohibited by the order of protection.

The Court disagreed, noting that the order of protection clearly specified the type of conduct that was prohibited—communication via electronic means—and that the defendant’s conduct was targeted toward the complainant:

The Court finds the above communication alleged to have been made by the
defendant via Facebook to be sufficient to establish, if true, every element of the
offense charged and the defendant's commission thereof. The Order of Protection
prohibited the defendant from contacting the protected party by electronic or any other
means. The allegations that she contacted the victim by tagging her in a Facebook'
posting which the victim was notified of, is thus sufficient for pleading purposes to
establish a violation of the Order of Protection.

While I agree with the Court’s conclusions, I was somewhat surprised that there was no further discussion as to what constitutes a “communication” and whether tagging someone in a Facebook post falls under that definition. Because, as I’ve oft repeated, the online is an extension of the offline, it would have been helpful to examine the nature of the defendant’s conduct in order to ascertain how and why it constituted a “communication.” Similarly it would have been illustrative to provide examples of offline conduct that were somewhat comparable to the defendant’s alleged behavior.
Assuming that the defendant was aware that when she “tagged” the complainant in a post, the complainant would likely receive a notification (depending on her Facebook settings), then clearly the defendant understood that she was in essence sending a message to the complainant. This was especially so given that she not only “tagged” her but also included messages in the post directed specifically to the complainant. However, even if she had not included messages of that nature, it’s conceivable that simply “tagging” someone in a post might constitute prohibited communication.

Unfortunately, the court did not address this issue and instead simply concluded that the alleged conduct violated the order of protection. While the decision was arguably correct, it was devoid of useful guidance for other courts who will undoubtedly wrangle with similar issues in the future.

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.


New York court holds Internet pranks are not stalking

Stacked3This week's Daily Record column is entitled "New York court holds Internet pranks are not stalking ."  My past Daily Record articles can be accessed here.

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New York court holds Internet pranks are not stalking  

As the author of books on both legal technology and substantive New York criminal law, I’m always fascinated by cases wherein the two topics intersect. This is because the rapid changes in technology affect our society in so many ways, including how people communicate both online and off.

Of course, problems can then arise if said communications are deemed unwelcome, and courts are left to grapple with issues of whether 21st century communication methods can result in the commission of crimes often drafted by 20th century legislators.

Such was the case in People v. Selinger, 48 Misc. 3d 1218(A) (N.Y.Crim.Ct. 2015), a decision handed down just last month. At issue in Selinger was whether the defendant’s online communications violated New York’s stalking statute as codified in Penal Law § 120.45(1), which provides:

A person is guilty of stalking in the fourth degree under Penal Law § 120.45(1) when she intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct … is likely to cause reasonable fear of material harm to the physical health, safety or property of such person, a member of such person’s immediate family or a third party with whom such person is acquainted.

The defendant was accused of engaging in behavior that the court ultimately referred to as “Internet pranks.” According to the accusatory instrument, she repeatedly harassed the complainant, her half-sister, over the Internet by: 1) posting the complainant’s photo on Instagram along with her phone number and the suggestion that she was seeking sexual partners (she received one phone call as a result of the post), 2) RSVP’d to the complainant’s wedding via an online site as herself (even though she wasn’t invited), her dog and her deceased father, and 3) named a cockroach after the complainant on a wildlife conservation website and the complainant received an email notification regarding said naming.

The court explained that in order for the defendant’s conduct to violate the stalking statute, she was required to have either actual or constructive knowledge that her behavior would “cause the victim to fear ‘material harm’ to one of the specified interests” set forth in the statute.

After reviewing the allegations set forth in the accusatory instrument, the court noted that the complainant’s alleged actions contained “neither an implicit nor an explicit threat of physical harm to the complainant, and there are no background facts pled that might place the defendant’s behavior in a different context.”

The court deemed the complainant’s actions to be Internet pranks, explaining that “while clearly calculated to annoy her sister and cause her mental distress, do not reflect the knowledge require by this section. Obnoxious but non-threatening behavior is not, by itself, enough … Defendant’s behavior was the Internet equivalent of having pizza delivered to an enemy, albeit over and over and over again. The court does not doubt that the complainant experienced fear for her personal safety. But, as nettlesome the defendant’s behavior was, it would not be reasonable, absent other facts not pled, to conclude that defendant knew, either actually or constructively, that the complainant would perceive the complainant’s behavior as threatening.”

As such, the court dismissed the stalking count of the accusatory instrument. In this case, I agree with the court’s decision; the actions taken by the complainant did appear to constitute harmless pranks. 

That being said, the Internet provides a new, very cost-effective medium — both in terms of time and money — for those with malicious intent toward another. Context can be incredibly important when analyzing allegations of Internet stalking, something that is oftentimes difficult to convey in a misdemeanor accusatory instrument.

For that reason I would hope that judges err on the side of caution with most cases like this and allow a jury the opportunity to hear and assess testimony regarding the circumstances surrounding the alleged stalking in order to determine whether the alleged behavior was intended to cause fear as delineated in the statute.

The Internet is a wonderful technology that offers many benefits and conveniences. But it also allows those with less than benevolent intent the ability to, with little effort and in very subtle ways, make the lives of others miserable. So, if nothing else, I would suggest that it is wise to proceed with caution when it comes to crimes allegedly committed via the information highway.


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.


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.

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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.

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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.

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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.