Judges receive backlash for social media

While professionals should be selective about what they put on social media, law officials should be even more wary. Recently, several judges have gotten into trouble for comments they have posted on social media. While venting about a stressful job is actually quite healthy, social media is usually not the right outlet, as some judges have come to realize.

A judge in Minnesota is facing repercussions for Facebook posts he made concerning some cases over which he presided. Judge Edward W. Bearse made several troublesome remarks, including posting “In a Felony trial now [with] State prosecuting a pimp. Cases are always difficult because the women (as in this case also) will not cooperate.” Additionally, he also referred to the Hennepin County District Court as “a zoo” and made some callous remarks after a lawyer suffered from a panic attack. After coming under fire from the Minnesota Board of Judicial Standards, Judge Bearse defended himself by saying that he wasn’t aware anyone outside of his friends and family would be seeing the posts. Even if this was the case (his account is now set to private), it doesn’t make his comments any less troubling.

Incidents like this shouldn’t scare judges and other law officials away from social media, however. Social media can be used to advocate for transparency and accessibility in law, users simply need to be vigilant about how they act and how they come across online.

Article via Above the LawNovember 24, 2015

Photo: I Like Facebook via Charis Tsevis [Creative Commons Attribution-NonCommercial-NoDerivs]


How to use social media evidence in court

In February of 2014, Maria Nucci attempted to sue Target after she slipped and fell on a work shift. In response, Target requested access to her Facebook profile in order to gather evidence on Nucci’s quality of life following the accident.

Saying that she had a “reasonable expectation of privacy” because of Facebook’s privacy settings, Nucci declined, and 36 photographs were removed from her profile two days following her objection.

The case was taken to the Fourth District Court of Appeals for the State of Florida, where in January of 2015, the three-judge panel ruled in favor of Target’s request for Nucci’s Facebook photographs.

“Because information that an individual shares through social networking websites like Facebook may be copied and disseminated by another,’ the expectation that such information is private, in the traditional sense of the word, is not a reasonable one,” the panel ruled.

Courts are still navigating how to use social media as evidence in legal cases. Currently, the main two issues complicating social media’s role in the courthouse are privacy, as in the Target case, and authentication.

Many social media sites require only an email to sign up, and those who require more don’t use any system to verify whether the person creating an account is in fact who they say they are.

Gibson Dunn partner Jennifer Rearden sums up the difficulties in using social media profiles as evidence: “Anybody can put anything on the Internet, and most Internet sites are not monitored for accuracy, so just because you have a print-out of someone’s profile page doesn’t mean you actually have confirmation they are controlling that page.”

 
Article via Legaltech News, November 2, 2015

Photo: Tumblr via Corrado [Creative Commons Attribution-NonCommercial-NoDerivs]


Courts and social media: privacy and authentication

On Feb. 4, 2010 Maria Nucci sued Target for the injury she sustained while working at the store. However, when Target requested access to her social media account, Nucci objected. As a result, 36 photos were deleted two days later. However, the Fourth District Court of Appeals for the State of Florida granted Target’s motion with respect to all photographs on the Facebook page that included Nucci. She argued she had a right to privacy, but the judges used that very argument against her.

“Because ‘information that an individual shares through social networking websites like Facebook may be copied and disseminated by another,’ the expectation that such information is private, in the traditional sense of the word, is not a reasonable one,” the panel ruled, partially quoting another Florida case. It also added, “Before the right to privacy attaches, there must exist a legitimate expectation of privacy.”

Using social media in court cases continues to skyrocket. It has been used about 80% of the time. According to John Facciola, the information has to be collected. Second, they have to sorted out into what the attorney needs and does not need. Courts are still trying to figure out what to do with social media in discovery and the privacy rights of those whose profiles are in question. This past year, the arguing has centered on two main issues: authentication, and where the expectation of privacy stops.

Social media is notorious for one particular thing: you don’t have to be who you say you are online. This is demonstrated in parody Twitter accounts and multiple Linkedin profiles. State courts have different standards on the authentication of social media. For example, the Maryland standard is that “the judge had to be ‘convinced’ that a social media post wasn’t falsified or created by another user. On the other hand, the Texas approach stipulated that any evidence could be used “as long as the proponent of the evidence can demonstrate to the judge that a jury can reasonably find that evidence to be authentic.” In United States vs. Vayner, Aliaksandr Zhyltsou accused Vladyslav Timku of providing a forged birth certificate for an imaginary infant daughter to avoid compulsory military service in Ukraine. The key piece of evidence was in the defendant’s social media account. However, the federal agent could not provide authenticity. As a result, Maryland revisited their standard and deemed that the judge has to identify which evidence would be sufficient. In other words, the judge has to determine that “there is proof from which a reasonable juror could find that the evidence is what the proponent is claiming.”

Article via Legaltech News , November 2, 2015

Photo: Affiliated Network for Social Accountability- Arab World via World Bank Photo Collection [Creative Commons Attribution-NonCommercial-NoDerivs]


Forensic devices could have glitches

A number of forensic devices use proprietary software to convict defendants. Breathalyzers, DNA testing, facial recognition, and other tools are not fail-proof mechanisms, but rather coded programs designed to test variables accurately. Unfortunately, these devices don’t always achieve that goal, and rulings in California, Pennsylvania, North Carolina, and Florida have determined that defendants are not legally granted access to the code that indicts them.

In California, for instance, Defendant Martell Chubbs is sentenced for a cold case murder committed in 1977. The only evidence is a DNA match configured by a proprietary software program. Chubbs requested access to the software’s source code so that he could compare the code to the currently established scientific procedure for DNA matching. He was denied on the grounds that the defense attorney might duplicate the code, resulting in financial losses for the manufacturer.

It’s not unreasonable that a forensic tool would be miscoded, either intentionally or not. The major car company Volkswagon had a recent scandal that highlighted intentional software glitches employed by well-known, regulated manufacturers. The company manipulated its code to cheat emission tests for 11 million diesel cars, each producing smog at 40 times the legal limit. Volkswagon’s actions carry the weight of an important message: any software program used for public purposes may contain mistakes, and those mistakes will never be discovered if the code is proprietary.

The Innocence Project found that debauched forensic science resulted in the wrongful convictions of 47 percent of exonerees. President Obama has stated that if cross-examination isn’t fair and thorough, forensic testimony is “nothing more than trial by ambush.”

Article via Future Tense, 6 October 2015

Photo: 2009 Gabrielli Family Law Moot Court Competition via Wake Forest University school of Law [Creative Commons Attribution-NonCommercial-NoDerivs]


E.U. ruling invalidates Safe Harbor

In a recent ruling, the European Court of Justice struck down Safe Harbor, which dictated the rules for transatlantic data flow between the United States and the European Union. The invalidation of Safe Harbor carries significant consequence for American e-commerce firms who operate in Europe. Companies like Google and Facebook—as well as the U.S. administration—now must make high-profile decisions in response to the ruling.

Europe has broad legislation protecting the personal information of E.U. citizens from being exploited by businesses. The U.S., in contrast, only codifies privacy against government institutions and for certain high-sensitivity data (e.g. health records, etc.) Safe Harbor’s “principles” are more flexible extensions of the E.U.’s privacy laws; violations of Safe Harbor could result in sanctions from a self-regulatory organization or the Federal trade Commission.

When Europe’s highest court invalidated the agreement, it was under the premise that European citizens were being manipulated by U.S. tech companies as well as by the U.S. government. The ruling was a reflection of a recent decision made by an Irish court on Safe Harbor’s illegality. Any new agreement drafted will have to contain more stringent privacy rules, and will therefore create more limitations for U.S. firms.

Facebook and Google’s immediate options include continuing business practices in a time of legal uncertainty, shutting down their European operations (resulting in major loss), or changing the business model to include more data collection centers in Europe. The last alternative would require companies to keep European and American data completely separate, with the consequence of economic inefficiency.

Article via The Washington Post, 6 October 2015

Photo: Bandiera dell’Unione (EU Flag) via Giampaolo Squarcina [Creative Commons Attribution-NonCommercial-NoDerivs]


Disbarred judge says he will not resign

A disbarred New Mexico Judge is refusing to step down after being disbarred.

Corrales Municipal Judge Luis Quintana was disbarred on July 1st by the New Mexico supreme court. The disbarment was for failing to turn over a settlement check to a client from a workers compensation case. The complaint was filed by Maria Ramos, one of the Judge’s former clients. A committee found that he used the money to pay debts that he owed to other clients instead of paying Ms. Ramos. The Judge contends that his disbarment has nothing to do with his job, therefore he has no intention of resigning.

Judge Quintana told the Albuquerque Journal that the case that resulted in the courts decision to disbar him happened before he was elected. Because of this, Quintana states that he is fully able to carry out his term, which ends in 2016. Despite his claims, the Judge is facing pressure to resign.

“People like myself who are lawyers or retired lawyers are quite alarmed, not only that it happened, but that it’s taken several months for it to become public knowledge…”, says Mayor Phil Gasteyer.  Mayor Gasteyer raised the issue of the disbarred Judge at a recent meeting of the village council. Since Quintana was elected to his position as Judge, he cannot be forced to vacate it. The Mayor plans to ask Judge Quintana for his resignation.

In response to the controversy Quintana stated, “Are people going to be disappointed? Sure. I’m disappointed, too. I’m disappointed because I didn’t serve Ms. Ramos as great as I should have, you know. But that was one instance in 30 years.”

 

Article via ABAJournal, 7 October 2015

Photo: Judges Desk Partial Desat via Matthew Paulson[Creative Commons Attribution-NonCommercial-NoDerivs]