Tag Archive: social networking risks

Legal Dilemmas of Social Networking, Part 3: Deceptive Practices & Ethical Concerns

Written on November 12, 2009 by Donna Seyle in Law & Social Networking, legal ethics
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As I stated in Parts 1 and 2 of this series, these posts are based on the day-long conference entitled Social Networking: Friends or Foes? (now on MP3) hosted by the Samuelson Law, Technology & Public Policy Clinic, the Berkeley Center for Law & Technology, the Berkeley Center for Criminal Justice and the UC Berkeley School of Law. The discussion addressed the legal and ethical issues facing lawyers and investigators using social networking contents in legal matters. In Part 1, I discussed the public’s expectation of privacy of the information posted on social network sites. In Part 2, I focused on the underlying law that relates to obtaining social network information for use in investigations and prosecutions of criminal and civil cases. Today, I will address ethical considerations regarding current practices to obtain or obstruct use of this information.

Being a real estate and business lawyer, I must admit to a degree of naivete regarding criminal investigative practices, and I don’t much watch TV. So my big “Aha” moment of the conference was when FBI Supervisory Special Agent Jack Bennett stated without equivocation that the FBI creates false Facebook and other social networking identities and “friends” or “pokes” suspects or potential witnesses as a matter of course to gain access to their accounts.

In their defense, the FBI investigates a whole slew of cybercrimes: identity theft, organized cybercrime, sexual predators, hackers and terrorists just to name a few. And the FBI does not have a whole set of rules called Legal Ethics to abide by. The same cannot be said for lawyers investigating their cases.

So the question is, how far can a lawyer go in these investigative tactics? Is employing someone to “friend” a potential witness that different from  hiring a private investigator to videotape a worker’s compensation claimant? Does an attorney who advises a client to shut down his Facebook account obstruct justice? Is that different  from advising a client not to talk to anyone about the case? What do you do when a client tells you there is evidence on a social networking site that could corroborate his story? Or impeach a witness? Do you get it any way you can?  Would you be committing malpractice if you didn’t?

Just as we’ve seen that there are no clear legal boundaries with respect to privacy, so a lawyer’s ethical conduct in these circumstances is undefined. However, opinions are beginning to appear. The first is the opinion of the Philadelphia Bar Associations’ Professional Guidance Committee, stating that a lawyer who hired a third party to “friend” a witness on Facebook and MySpace to gain access to personal files would violate Rules 8.4, which prohibits dishonesty, fraud, deceit or misrepresentation, and 4.1 regarding truthfulness in statements to others, of the Pennsylvania Rules of Professional Conduct.

However, in his very insightful and well-researched article, Evidence on Social Networking Sites, Ken Strutin cites the following exception to Pennsylvania’s analysis in Opinion 737 of the New York County lawyers’ Association’s Committee on Professional Ethics:

Non-government attorneys may … ethically supervise non-attorney investigators employing a limited amount of dissemblance in some strictly limited circumstances where: (i) either (a) the investigation is of a violation of civil rights or intellectual property rights and the lawyer believes in good faith that such violation is taking place or will take place imminently or (b) the dissemblance is expressly authorized by law; and (ii) the evidence sought is not reasonably available through other lawful means; and (iii) the lawyer’s conduct and the investigators’ conduct that the lawyer is supervising do not otherwise violate the Code (including, but not limited to, DR 7-104, the ‘no-contact’ rule) or applicable law; and (iv) the dissemblance does not unlawfully or unethically violate the rights of third parties.

Mr. Strutin also refers to Office of lawyer Regulation v. Hurley, No. 2007AP478-D (Wis.Sup.Ct. Feb. 11, 2009), where the Supreme Court of Wisconsin affirmed a referee’s finding that an attorney, who hired a private investigator to deceptively acquire a victim’s laptop to conduct a forensic analysis, did not violate ethics rules. His reasoning was that the same deference accorded law enforcement in utilizing deception in criminal investigations should be afforded the attorney. (If you would like a more thorough discussion of these issues, I encourage you to click on the link to the article I’ve cited here, which also includes footnotes to further resources.)

As the regulation of conduct in these arenas evolves, lawyers need to tread cautiously into these waters and carefully balance the right to effective assistance of counsel against a lawyer’s obligations to be truthful. There are many creative ways to use technology to obtain information, and the enticement to cross some unknown ethical line has never been greater.

Other areas of ethical concern include such things as posting or blogging about clients, judges and cases, friending judges or opposing counsel, and other conduct that has been found to occur online (the list is long and humiliating). This kind of conduct moves beyond the duty of confidentiality to simple common sense, and can lead to circumstances that may prejudice your client, require recusal or other consequences nobody wants. What you put out there will be read or seen out there. By everyone. And people talk. Particularly online.

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Lawyers: do you have time and resource management dilemmas that require creative solutions? Freelance attorneys and advanced technology are here to help. Take advantage of new and exciting ways to have both a successful law practice and a great lifestyle! Click here to contact me for a free consultation.

Legal Dilemmas of Social Networking, Part 2: Online Communications Protections

Written on November 5, 2009 by Donna Seyle in Law & Social Networking, legal ethics
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In my first post on the legal issues, I discussed the public’s expectation that their social networking information is private. Here, I will move on to the challenges presented by the lack of legislative or judicial law pertaining to use of social networking information in civil and criminal proceedings. (See Social Networking – Legal and Ethical Issues for Lawyers and Investigators).

There are two primary sources of legal authority to rely on in analyzing the protection of social networking information. The first is the 4th Amendment rights against unreasonable searched and seizures, premised on the doctrine of a person’s reasonable expectation of privacy.  The second arises from the Electronic Communications Discovery Act of 1986.  ECPA was enacted to extend government restrictions on wire taps from telephone calls to include the transmission of electronic data (email), although the restrictions were never extended to stored electronic data that had not yet been read by the recipient.  The standard to obtain a warrant under the 4th amendment is probable cause, but under ECPA, the standard is much lower. Originally, the prosecutor need only state that the information sought was “relevant” to a civil or criminal matter without stating any facts to support that claim. Later, the standard was raised to require at least a minimal factual basis for relevance, but is still substantially lower than probable cause.

The protections afforded by ECPA were weakened by the U.S. Patriot Act.  Among other things, the Act increased the ability of law enforcement agencies to search telephone, e-mail communications, medical, financial, and other records, eased restrictions on foreign intelligence gathering within the United States and the expanded use of National Security Letters which allows the FBI to search telephone, e-mail, and financial records without a court order. Prosecutors and attorneys have primarily relied on ECPA standards to seek social networking information because of the lower standard to show cause.

At this point, two distinctions should be made. First, it is easier to obtain a warrant to search social networking sites in a criminal investigation than it is to obtain a subpoena in a civil case due to the greater importance of prosecuting crimes over seeking civil remedies.  That being said, even in criminal cases, only the prosecution can obtain a warrant. And while the prosecution has the duty to turn over any evidence they obtain to the defense attorney, if they believe they will find exculpatory evidence, it was asserted at the conference that they will simply then not seek to obtain the evidence.

Second, as I discussed previously, there is a difference between “transactional information” and “content.”  While transactional information generally only requires a subpoena, “content” requires obtaining a warrant, since content carries a higher expectation of privacy. However, as we have seen, the 4th amendment right that protects against searches where there is a reasonable expectation of privacy does not necessarily apply in the electronic information landscape.

So the question remains: what body of law applies, and how does a law intended to regulate telephone and email interception apply to the acquisition of social networking information? The world of online interaction and social membership sites creates a new environment which old legal doctrines,even those directed at email, do not address. This is true not only of the legal standards required to obtain the information, but also of the unauthorized conduct to do so (to be discussed further in Part 3). For example, computers forensics provides a method to obtain information that was intentionally deleted from a hard drive. Web analytics and other tools aggregate data across many networks that is easily accessible. And then, when all else fails, there are always deceptive practices. The truth is we reveal personal information to an almost endless audience when we participate online through the digital footprint we leave. Neither legislative or judicial decisions have addressed the standards required to obtain admissible evidence in these environments.

As an example of how legal opinions are emerging, there is an excellent discussion of a recent trial court decision in a podcast entitled The Fourth Amendment and Email. Here, the judge ruled that no one can have a reasonable expectation that their emails are private due to the digital footprint they create.  Rulings like this must, and will, continue and go up on appeal to begin to create judicial precedent on these issues.

As this is being written, the House Judiciary Committee is considering HR3845, which would amend the Patriot Act. For an up-to-date review of that process, visit the Electronic Frontier Foundation website, or follow them on Twitter @eff. Lawyers and governmental agencies across the country are using social networks as a source of information on a daily basis, as a matter of course. Given that the legal parameters of such use are something akin in justice in the Wild West, this area of law needs to be defined and regulated. Now.

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Lawyers: do you have time and resource management dilemmas that require creative solutions? Freelance attorneys and advanced technology are here to help. Take advantage of new and exciting ways to have both a successful law practice and a great lifestyle! Click here to contact me for a free consultation.

The Legal Dilemmas of Social Networking, Part 1

Written on October 28, 2009 by Donna Seyle in Law & Social Networking
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I recently attended the day-long conference entitled Social Networking: Friends or Foes? (now on MP3) hosted by the Samuelson Law, Technology & Public Policy Clinic, the Berkeley Center for Law & Technology, the Berkeley Center for Criminal Justice and the UC Berkeley School of Law. The discussion focused on the legal and ethical issues facing lawyers and investigators using social networking contents in legal matters. (For a concise summary of the conference, see Social Networking – Legal and Ethical Issues for Lawyers and Investigators). Unlike other conferences, more questions were raised than could be answered. This was no reflection on the presenters. It reflected  the fact that legal issues involving privacy and the gathering and use of social networking content as evidence are evolving much more quickly than legal answers can be found.

Four significant themes emerged from the conference:

1.  The public has little understanding  of the risk involved in giving personal information to membership networking sites (i.e.,. Facebook, MySpace, etc.) and in posting content on the site;

2.  Existing law does not adequately address the legal implications of the methods used to gather, and/or the use of, evidence from social networking sites;

3.  There are no specific ethical guidelines for lawyers to follow in participating in, or gathering evidence from, social network sites; and

4.  The evolution of third-party applications used in conjunction with social network sites is changing the landscape on a continuous basis.

I hope to address each of these themes in a series of post that may or may not be consecutive.  For the moment, let’s take a look at the first issue: what is the public’s expectation that the content of their site is protected from scrutiny by the public at large? Does the public have an understanding that information provided to the site for membership is protected?

First, it is doubtful the public gives serious consideration to the privacy of  personal information provided to sign up for the site (called transactional information). In fact, I’d bet the thought never even crosses their minds. They’re busy thinking about posting cool photos and taking fun quizzes.  The idea that the information they just punched into those little boxes is now permanently stored on giant servers, and that the company that owns those servers may be required to give out the information in response to a subpoena or warrant is just not on their radar.

What is the public’s expectation that the contents of their membership site is private to all but their friends? Probably pretty high. After all, sites provide “privacy settings” that enable you to block unwanted visitors, among other things. Users have what I call the “appearance of control” over what is disseminated to the public.

And that’s all it really is: an appearance of control. The fact is that both transactional information and content can be obtained through either legal or deceptive methods and you will never know it until someone decides they want to talk to you. In person. Legally, information can be obtained by either warrant or subpoena, depending on the nature of the matter (civil or criminal) matter and information (transactional or content). But more insidious is that  there are many deceptive practices used by both public and private investigative sectors, which include, but certainly not limited to, creation of a fake social profile and attempts to “friend” either the subject of the investigation or a witness to activities giving rise to the investigation. (Whether any evidence obtained through deceptive practices is admissable is another conversation.)

In her guest post entitled Friend or Foe: UC Berkeley Investigates the Legal Landscape of Social Networking, Aspen Baker states:

There were a lot of big questions around what defines “content.”  Is “content” what you write on your wall or post on your friends page, or is it also “transactional,” the information collected about your use of the social network: what did you search for? What pages did you visit? Most of the panelists thought everything should be deemed content and should therefore be considered, and protected, as private communications.

It was also noted that social context is incredibly important to our ideas of privacy and that privacy has a lot to do with expectations.  We may not expect what we post on a friend’s wall to be private, but we probably expect that sending a private message will.  However, according to Paul Ohm, Professor of Law at the University of Colorado Law School, email services such as Gmail are changing our expectations of privacy, as we find tailored advertisements in our internet browsers.  If we are comfortable with getting advertisements for running shoes after emailing a friend about our trail run, what legal implication does this have for future expectations of privacy?

As I mentioned, these questions were raised and discussed, but any conclusions were really a matter of opinion. There simply are no legal guidelines on these cutting-edge issues.

Mark Howitson, Deputy General Counsel to Facebook, stated that Facebook tries to educate the public in its terms of use and disclaimers regarding the risks of privacy invasion when posting content on their site.  Interestingly, Facebook takes the position that by using their site, the public assumes the risk. But  others on the panel, and many in the audience, disagreed. On some intangible level it seems unreasonable to assume the public even considers these matters, or has any expectation that law enforcement agencies might be digging around in profiles on membership sites. In her blog,  Aspen Baker calls this the “buyer beware” argument and states that: “. . .we, the users, not only need to beware of the consequences of our participation, but most importantly, we need to be consumer advocates who fight for our own protections and demand legal, and wide-ranging respect for our privacy online.”

This is clearly only the beginning of what will be a very long discussion in and out of courts of law, as it raises many fourth amendment concerns (to be discussed in Part II of this series). As participants in social networking and media, however, we need to begin expressing our views and creating a knowledge base that can not only benefit consumers, but also effect public policy and legal challenges to our privacy. Please voice your concerns here, to your friends and wherever the issue is discussed.

Lawyers: do you have time and resource management dilemmas that require creative solutions? Freelance attorneys and advanced technology are here to help. Take advantage of  new and exciting ways to have both a successful law practice and a great lifestyle! Click here to find out how!
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Lawyers: do you have time and resource management dilemmas that require creative solutions? Freelance attorneys and advanced technology are here to help. Take advantage of new and exciting ways to have both a successful law practice and a great lifestyle! Click here to contact me for a free consultation.