{"id":1165,"date":"2013-04-03T14:28:39","date_gmt":"2013-04-03T14:28:39","guid":{"rendered":"http:\/\/jolt.richmond.edu\/?p=1165"},"modified":"2019-03-08T19:52:36","modified_gmt":"2019-03-09T00:52:36","slug":"social-media-evidence-in-government-investigations-and-criminal-proceedings-a-frontier-of-new-legal-issues","status":"publish","type":"post","link":"https:\/\/blog.richmond.edu\/jolt\/2013\/04\/03\/social-media-evidence-in-government-investigations-and-criminal-proceedings-a-frontier-of-new-legal-issues\/","title":{"rendered":"Social Media Evidence in Government Investigations and Criminal Proceedings: A Frontier of New Legal Issues"},"content":{"rendered":"

\"pdf_icon\"Download PDF<\/a><\/p>\n

Cite as: Justin P. Murphy & Adrian Fontecilla, Social Media Evidence in\u00a0Government Investigations and Criminal Proceedings: A Frontier of New\u00a0Legal Issues<\/em>, 19 RICH. J.L. & TECH 11 (2013), available at\u00a0http:\/\/jolt.richmond.edu\/v19i3\/article11.pdf.<\/p>\n

\u00a0<\/p>\n

By Justin P. Murphy and Adrian Fontecilla*<\/p>\n<\/p>\n

I.\u00a0 Introduction<\/b><\/h3>\n

[1]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 As the newest pillar of communication in today\u2019s society, social media is revolutionizing how the world does business, discovers and shares news, and instantly engages with friends and family.\u00a0 Not surprisingly, because social media factors into the majority of cases in some respect, this exploding medium significantly affects government investigations and criminal litigation.\u00a0 Social media evidence includes, among other things, photographs, status updates, a person\u2019s location at a certain time, and direct communications to or from a defendant\u2019s social media account.\u00a0 This Article will examine the importance of social media in government investigations and criminal litigation, including access to and use of social media evidence, constitutional issues that social media evidence raises, the authentication and admissibility of such evidence, in addition to the impact of social media on jurors.<\/p>\n

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II.\u00a0 The Importance of Social Media<\/b><\/h3>\n

[2]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Social media use is widespread.\u00a0 Ninety-one percent of today\u2019s online adults use social media regularly, which has become the number one activity on the web.[1]\u00a0 \u201cPeople continue to spend more time on social networks than any other category of [web]sites,\u201d accounting for \u201c20% of their time spent on PCs and 30% of their mobile [use] time.\u201d[2]\u00a0 Social media use in the United States alone has increased by 356% since 2006.[3]\u00a0 52% of Americans now have at least one social media profile,[4] more than one billion people use Facebook actively each month,[5] and 32% of all Internet users are now using Twitter.[6]\u00a0 Notably, some of the largest growth in the last year has been among forty-five to fifty-four year old Americans, 55% of whom now have a profile on a social networking site.[7]<\/p>\n

[3]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 There are hundreds of social networking websites with each catering to a different demographic and providing a different type of content.[8]\u00a0 Moreover, their users are constantly creating massive amounts of data. \u00a0\u201cTwitter users send [one] billion tweets every two and a half days,\u201d[9] Instagram users upload forty million images every day,[10] Facebook users share 684,478 pieces of content every minute, and YouTube users upload forty-eight hours of new video every minute.[11]\u00a0 Social media users create more than just photos, videos, and tweets. \u00a0They share other information, such as their location as well.\u00a0 \u201cAs of 2012, [seventeen] billion location-tagged posts and check-ins were logged.\u201d[12]\u00a0 The myriad and continually changing ways to share information via social media has resulted in a digital goldmine of potential evidence, such as profiles, lists of friends, group memberships, messages, chat logs, tweets, photos, videos, tags, GPS locations, likes, check-ins, and login timetables.[13]<\/p>\n

[4]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The information that social media providers make available is staggering.\u00a0 When a phone company responds to a government subpoena or search warrant, it may provide call or message logs.\u00a0 In contrast, when a social media company like Facebook responds to a government subpoena, it could provide the user\u2019s profile, wall posts, photos that the user uploaded, photos in which the user was tagged, a comprehensive list of the user\u2019s friends with their Facebook IDs, and a long table of login and IP data.[14] \u00a0In addition, with the advent of location-based services that social media companies like Facebook, Twitter, and FourSquare offer, precise location information will be increasingly maintained in the ordinary course of business and subject to the same subpoenas and search warrants.[15]\u00a0 One newsworthy example demonstrating the amount of information available to law enforcement from a simple photograph is that of John McAfee, the antivirus company founder who was recently on the run from law enforcement authorities investigating the murder of his neighbor.\u00a0 McAfee was forced out of hiding when it was found that a photo of him published on a blog was embedded with GPS metadata pinpointing his exact location in Guatemala.[16]\u00a0 Not surprisingly, each social media request can yield admissions or incriminating photos in addition to other evidence.[17]<\/p>\n

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III.\u00a0 Accessing Publicly Available Social Media Evidence<\/b><\/h3>\n

[5]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 It is no secret that government agencies mine social networking websites for evidence.\u00a0 Even without having to seek a warrant from the court or issue a subpoena, there are troves of social media evidence publicly available.[18]\u00a0 For example, the New York Police Department has a social media unit that mines Facebook, Twitter, and other social media sites for evidence of crimes and potential criminal activity.[19]\u00a0 Moreover, a majority of government agencies are active participants who contribute content and solicit information through social media.[20]\u00a0 Given the amount of information publicly available and the avenues that the government has to seek out such information, usually the government does not need a search warrant, subpoena, or court order to obtain social media evidence.<\/p>\n

[6]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 There are countless cases involving defendants who are arrested because of information, photos, or admissions posted to social media sites.\u00a0 For example, a defendant in Kentucky was jailed after he posted a photo of himself siphoning gas from a police car onto Facebook.[21]\u00a0 Another defendant broke into a Washington, D.C. home to steal a coat, a laptop, and cash, subsequently using the victim\u2019s laptop to post a picture of himself wearing the stolen coat and holding up the stolen cash to the victim\u2019s Facebook page.[22]\u00a0 The photo was used later to secure a guilty plea from the defendant.[23]\u00a0 While some sites allow users to control what content the public can access, many users do not make use of such tools.\u00a0 In fact, twenty five percent of Facebook users do not use any type of privacy controls.[24]<\/p>\n

[7]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 In addition to searching for publicly available evidence, government agents are allowed to go further than defense counsel in pursuing social media evidence for a criminal proceeding.\u00a0 To bypass the need for a search warrant, government agents may pierce the privacy settings of a person\u2019s social media account by creating fake online identities or by securing cooperating witnesses to grant them access to information.[25]\u00a0 For example, in United States v. Meregildo<\/i>, the defendant adjusted the privacy settings on his Facebook account so that only his Facebook \u201cfriends\u201d could view his postings.[26]\u00a0 The government obtained the incriminating evidence against the defendant through a cooperating witness who happened to be Facebook \u201cfriends\u201d with the defendant.[27]\u00a0 The defendant moved to suppress the evidence seized from his Facebook account, arguing that the government had violated his Fourth Amendment rights.[28]\u00a0 The court found:<\/p>\n

Where Facebook privacy settings allow viewership of postings by \u201cfriends,\u201d the Go
\nvernment may access them through a cooperating witness who is a \u201cfriend\u201d without violating the Fourth Amendment. . . . While [the defendant] undoubtedly believed that his Facebook profile would not be shared with law enforcement, he had no justifiable expectation that his \u201cfriends\u201d would keep his profile private.\u00a0 And the wider his circle of \u201cfriends,\u201d the more likely [the defendant\u2019s] posts would be viewed by someone he never expected to see them.\u00a0 [The Defendant\u2019s] legitimate expectation of privacy ended when he disseminated posts to his \u201cfriends\u201d because those \u201cfriends\u201d were free to use the information however they wanted\u2014including sharing it with the Government.[<\/em>29]<\/p>\n

[8]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Recently, federal authorities relied heavily on social media to build their case against four defendants who were allegedly involved in an Al Qaeda inspired terrorist cell based in California.[30]\u00a0 The criminal complaint, which included a section titled \u201cDefendants\u2019 Social Media,\u201d provides a glimpse into the various ways that law enforcement uses social media in its investigations.[31]\u00a0 The investigators used an \u201conline covert employee\u201d who posed as a terrorism sympathizer to elicit damaging statements from the defendants, recorded Skype conversations between a confidential informant and the defendants, and relied on the social media content that each defendant \u201cliked,\u201d \u201cshared,\u201d or on which the defendant commented.[32]<\/p>\n

[9]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The Securities and Exchange Commission also recently issued a Wells Notice for the first time based on a social media communication.[33]\u00a0 On December 5, 2012, Netflix disclosed that it had received a Wells Notice from the SEC Enforcement Staff for allegedly violating public disclosure rules when its CEO, Reed Hastings, posted onto his Facebook with more than 200,000 followers that, \u201cNetflix monthly viewing exceeded one billion hours for the first time ever in June [2012].\u201d[34]\u00a0 After receiving the notice, Hastings noted in a letter to shareholders that, \u201c[W]e think posting to over 200,000 people is very public, especially because many of my subscribers are reporters and bloggers;\u201d nevertheless, the SEC has provided no formal guidance concerning the use of social media, Regulation FD, and communications with the investing public. [35]<\/p>\n

 <\/p>\n

IV.\u00a0 Social Media Companies, Subpoenas, and Warrants<\/b><\/h3>\n

[10]\u00a0\u00a0\u00a0\u00a0\u00a0 Given the digital goldmine of potential evidence available from social media companies, it is not surprising that they are increasingly targeted in search warrants and government subpoenas in criminal matters.\u00a0 For example, Twitter \u201creceived more government requests\u201d for user information in the \u201cfirst half of 2012 . . . than in the entirety of 2011.\u201d[36]\u00a0 In addition, approximately 80% of those requests were from authorities in the United States.[37]\u00a0 Google, which operates social networking sites including YouTube and Google+, continues to receive subpoenas and search warrants in criminal matters at a rapidly accelerating pace.\u00a0 Statistics published by Google, which \u201cprimarily cover requests in criminal matters,\u201d[38] show that the number of Google user data requests received from government authorities in the United States more than doubled from 2009 to 2012 and that the United States accounts for over 39% of user data requests received from government authorities around the world.[39]<\/p>\n

[11]\u00a0\u00a0\u00a0\u00a0\u00a0 Moreover, the prevalence of social media evidence in criminal proceedings will continue to proliferate as government agencies continue to formally train their personnel to search for and collect social media evidence.\u00a0 A recent survey of over 1,200 federal, state, and local law enforcement professionals reveals that social media is widely used to assist in investigations, few learned how to use social media for investigations through formal training, and \u201c74% of those not currently using it . . . intend to start using it.\u201d[40]\u00a0 Moreover, the case law is already replete with instances in which the government obtained social media evidence through a warrant or subpoena directed at a social media company.[41]\u00a0 Social media evidence is the new frontier of criminal proceedings and it raises unique legal challenges, including issues of admissibility and a defendant\u2019s constitutional rights in material that social media companies maintain.<\/p>\n

\u00a0<\/i><\/b><\/p>\n

V.\u00a0 Accounting for the Stored Communications Act<\/b><\/h3>\n

[12]\u00a0\u00a0\u00a0\u00a0\u00a0 Federal law provides that in some circumstances, the government may compel social media companies to produce social media evidence without a warrant.\u00a0 The Stored Communications Act (\u201cSCA\u201d) governs the ability of governmental entities to compel service providers, such as Twitter and Facebook, to produce content (e.g.<\/i>, posts and tweets) and non-content customer records (e.g.<\/i>, name and address) in certain circumstances.[42]\u00a0 Passed in 1986, the SCA has not been amended to reflect society\u2019s heavy use of new technologies and electronic services, such as social media, which have evolved since the SCA\u2019s original enactment.[43]\u00a0 Consequently, courts will continue to play a critical role in defining how and whether the SCA applies to the varying features of different social media services by applying precedent from older technologies, such as text messaging pager services or electronic bulletin boards.[44]<\/p>\n

[13]\u00a0\u00a0\u00a0\u00a0\u00a0 The SCA provides that non-content records can be compelled through a warrant or court order.[45]\u00a0 With regard to the compelled disclosure of communication content, the SCA provides different levels of statutory privacy protection depending on how long the content has been in electronic storage.[46]\u00a0 The government may obtain content that has been in electronic storage for 180 days or less \u201conly pursuant to a warrant.\u201d[47]\u00a0 \u201cThe government has three options for obtaining communications . . . that have been in electronic storage with an electronic service provider for more than 180 days: (1) obtain a warrant; (2) use an administrative subpoena; or (3) obtain a court order under \u00a7\u00a02703(d).\u201d[48]<\/p>\n

[14]\u00a0\u00a0\u00a0\u00a0\u00a0 At least one Circuit Court of Appeals has called into question the constitutionality of the SCA.[49]\u00a0 In United States v. Warshak<\/i>, the Sixth Circuit held that \u201cthe government agents violated the Fourth Amendment when they obtained the contents of [defendant\u2019s] e-mails\u201d without a warrant and added that, \u201cto the extent that the SCA purports to permit the government to obtain such e-mails warrantlessly, the SCA is unconstitutional.\u201d[50]\u00a0 The court reasoned that \u201c[o]ver the last decade, e-mail has become \u2018so pervasive that some persons may consider [it] to be [an] essential means or necessary instrument[] for self-expression, even self-identification\u2019\u201d and that therefore, \u201ce-mail requires strong protection under the Fourth Amendment.\u201d[51]\u00a0 Noting that e-mail was analogous to a phone call or letter and that the internet service provider was the intermediary who made e-mail communication possible, the functional equivalent of a post office or telephone company, the court concluded that given \u201cthe fundamental similarities between e-mail and traditional forms of communication, it would defy common sense to afford e-mails lesser Fourth Amendment protection.\u201d[52]\u00a0 However, Congress made clear that changing the law will require extended consideration when, on December 24, 2012, the Senate removed from proposed legislation an amendment to the SCA that would have prevented authorities from viewing a person\u2019s e-mail messages without obtaining a warrant.[53]\u00a0 In the meantime, courts will play a key role in clarifying how the SCA applies not only to e-mails, but also to the social media that has rapidly become as pervasive and important to people as e-mail.<\/p>\n

\u00a0<\/i><\/b><\/p>\n

VI.\u00a0 Defining a Defendant\u2019s Constitutional Rights <\/b>Regarding Social Media Evidence<\/b><\/h3>\n

[15]\u00a0\u00a0\u00a0\u00a0\u00a0 Courts have also star
\nted grappling with novel issues relating to the constitutionality of the government\u2019s use of information obtained from social media companies in criminal proceedings.[54]\u00a0 For example, a New York appellate court will soon issue an opinion regarding Twitter\u2019s appeal of two court orders in the prosecution of an Occupy Wall Street protestor in People v. Harris<\/i>.[55]\u00a0 The trial court held that the defendant lacked standing to move to quash the government\u2019s third-party subpoena to Twitter for his account records and that the Fourth Amendment did not protect his tweets.[56]\u00a0 The trial court similarly denied Twitter\u2019s motion to quash the government\u2019s subpoenas for the defendant\u2019s Twitter records for the same reasons.[57]\u00a0 Although Twitter\u2019s appeal is pending, Twitter turned over the data after the trial judge threatened the company with civil contempt and fines, which led to the defendant\u2019s guilty plea in December 2012.[58]<\/p>\n

[16]\u00a0\u00a0\u00a0\u00a0\u00a0 Notably, the defendant was only able to move to quash the subpoena because \u201cTwitter\u2019s policy is to notify users of requests for their information prior to disclosure,\u201d[59] a policy which is becoming more common among social media companies.[60]\u00a0 Not only does Twitter notify its users that the company has received a government-issued information request for the user\u2019s data, but it also protects its business by litigating against such third-party government subpoenas.[61]<\/p>\n

[17]\u00a0\u00a0\u00a0\u00a0\u00a0 On appeal, Twitter argued that the defendant has standing to quash the government\u2019s subpoena because he has a proprietary interest in his tweets, pointing to the express language of Twitter\u2019s Terms of Service.[62]\u00a0 Moreover, Twitter claimed that the Fourth Amendment protects the defendant\u2019s tweets, primarily because the government concedes that the defendant did not make public the tweets that it sought.[63]\u00a0 If a defendant has a reasonable expectation of privacy under the Fourth Amendment in his or her non-public e-mails,[64] refusing to afford that same protection to users\u2019 non-public tweets would create \u201carbitrary line drawing.\u201d[65]\u00a0 Finally, even assuming that the tweets in question were public, Twitter argued that the government still requires a search warrant under the federal and New York constitutions.[66]\u00a0 Notwithstanding Twitter\u2019s pending appeal, Twitter complied with a court order requiring it to promptly submit the defendant\u2019s tweets under seal.[67]<\/p>\n

[18]\u00a0\u00a0\u00a0\u00a0\u00a0 The line-drawing concerns that Twitter expressed in its People v. Harris<\/i> brief, that a defendant\u2019s reasonable expectation of privacy under the Fourth Amendment in his or her social media records depends on the privacy settings for the particular account in question, were implicated in United States v. Meregildo<\/i>, a case in which the court held that \u201c[w]here Facebook privacy settings allow viewership of postings by \u2018friends,\u2019 the Government may access them through a cooperating witness who is a \u2018friend\u2019 without violating the Fourth Amendment.\u201d[68]<\/p>\n

[19]\u00a0\u00a0\u00a0\u00a0\u00a0 Some courts have concluded that individuals have \u201ca reasonable expectation of privacy to [their] private Facebook information and messages.\u201d[69]\u00a0 Those courts, while recognizing the importance of properly understanding how Facebook works, distinguished between \u201cprivate messaging\u201d and posts to a user\u2019s Facebook wall.[70]\u00a0 Using privacy setting distinctions to determine social media users\u2019 constitutional rights may result in arbitrary line drawing that might evaporate as social media evolves.\u00a0 Indeed, with Facebook\u2019s customizable and post-specific privacy settings, a person who shares a message by posting it on another user\u2019s wall can actually make it as private as information shared via a Facebook message.[71]<\/p>\n

[20]\u00a0\u00a0\u00a0\u00a0\u00a0 In addition, it remains uncertain whether, given the sheer breadth of information available in any particular social media account, one can successfully challenge search warrants for entire social media accounts for lacking sufficient limits or boundaries that would enable the government-authorized reviewing agent to ascertain which information the agent is authorized to review.[72]\u00a0 Ultimately, because an expectation of privacy under the Fourth Amendment is partly a function of whether \u201csociety [is] willing to recognize that expectation as reasonable,\u201d social media\u2019s rapid proliferation through today\u2019s society may influence the privacy protections afforded to social media evidence in the future.[73]<\/p>\n

 <\/p>\n

VII.\u00a0 Defending a Criminal Case with Social Media Evidence<\/b><\/h3>\n

[21]\u00a0\u00a0\u00a0\u00a0\u00a0 Defendants face more significant obstacles than the government when seeking exculpatory evidence from social media companies.[74]\u00a0 First, defendants and their counsel do not share the government\u2019s freedom to sleuth for publicly available social media evidence, although counsel should have free access to anything his or her client produced or can access.[75]\u00a0 Ethics opinions issued to lawyers in various states have established that a defendant\u2019s lawyer may not \u201cfriend\u201d or direct a third person to \u201cfriend\u201d another party or witness in litigation in order to search for impeachment material or exculpatory evidence.[76]<\/p>\n

[22]\u00a0\u00a0\u00a0\u00a0\u00a0 Second, defendants face additional hurdles when seeking to issue a third party subpoena.[77]\u00a0 Defendants may seek to subpoena social media companies for user information regarding the victim, the complaining witness, or another witness.[78]\u00a0 In those instances, in federal criminal proceedings, defendants must pursue such non-party discovery pursuant to Federal Rule of Criminal Procedure 17 and seek a court order allowing such a subpoena.[79]\u00a0 Among other hurdles in seeking such an order, the court may find that the evidence maintained by a social media website is \u201cprivate,\u201d in which case the SCA prohibits a non-governmental entity, such as Facebook and MySpace, from disclosing that information without the consent of the owner of the account or a government order.[80]\u00a0 In one high profile example of a defendant clearing such hurdles, on October 19, 2012, the court presiding over the Trayvon Martin murder trial granted the defendant\u2019s motion seeking permission to subpoena Facebook and Twitter for the records of Trayvon Martin\u2019s social media accounts in addition to Mr. Martin\u2019s girlfriend\u2019s Twitter account.[81]\u00a0 Notwithstanding the order, Facebook and Twitter may challenge the subpoenas as Twitter so did in People v. Harris<\/i>.<\/p>\n

[23]\u00a0\u00a0\u00a0\u00a0\u00a0 Despite these challenges, criminal defendants may attempt to use novel methods of obtaining exculpatory social media evidence.\u00a0 For example, under Brady v. Maryland<\/i> or Giglio v. United States,<\/i> one may obtain <\/i>a law enforcement officer\u2019s social media account records.[82]\u00a0 Moreover, courts may order jurors, witnesses, or third parties to produce or manipulate their social media information in unique and unprecedented ways.\u00a0 For example, courts have: (1) ordered a juror to \u201cexecute a consent form sufficient to satisfy the exception\u201d in the SCA to allow Facebook to produce the juror\u2019s wall posts to defense counsel;[83] (2) ordered a party to briefly change his Facebook profile to include a prior photograph so that his Facebook pages could be printed as they existed at a prior time;[84] (3) recommended that an individual \u201cfriend\u201d the judge on Facebook in order to facilitate an in camera<\/i> review of Facebook photos and comments;[85] and (4) ordered parties to exchange social media account user names and passwords.[86]\u00a0 Such novel avenues of access to social media evidence may be considered when the defendant subpoenas a social media provider for certain records of a witness or victim and the social media company objects to the subpoena pursuant to the SCA or is unable to produce the evidence as it previously existed.<\/p>\n

\u00a0<\/i><\/b><\/p>\n

VIII.\u00a0 Admissibility of Social Media Evidence<\/b><\/h3>\n

[24]\u00a0\u00a0\u00a0\u00a0\u00a0 Social media is subject to the same rules of evid
\nence as paper documents or other electronically stored information, but the unique nature of social media as well as the ease with which it can be manipulated or falsified creates hurdles to admissibility not faced with other evidence.[87]\u00a0 The challenges surrounding social media evidence demand that one consider admissibility when social media is preserved, collected, and produced.\u00a0 It is important for counsel to memorialize each step of the collection and production process in addition to considering how counsel will authenticate a tweet, Facebook posting, or photograph.\u00a0 Methods of authentication include presenting a witness with personal knowledge of the information (they wrote it, they received it, or they copied it), searching the computer itself to see if it was used to post or create the information, or attempting to obtain the information in question from the actual social media company that maintained the information the ordinary course of their business.<\/p>\n

[25]\u00a0\u00a0\u00a0\u00a0\u00a0 Notably, these same challenges face the government who must also consider the admissibility of social media when they conduct their investigation.\u00a0 In United States v. Stirling<\/i>, the government seized the defendant\u2019s computer pursuant to a search warrant and provided the defendant with a forensic copy of the hard drive.[88]\u00a0 The government also performed a forensic examination of the hard drive and extracted 214 pages of Skype chats downloaded from the defendant\u2019s computer, which were not \u201creadily available by opening the folders appearing on the hard drive,\u201d but did not provide this information to the defense until the morning of its expert\u2019s testimony near the end of trial.[89]\u00a0 The logs \u201chad a devastating impact\u201d on the defendant because they contradicted many of his statements made during his testimony and he was convicted.[90]\u00a0 In a short but stinging opinion ordering a new trial, the court found:<\/p>\n

[If a defendant] needs to hire a computer forensics expert and obtain a program to retrieve information not apparent by reading what appears in a disk or hard drive, then such a defendant should so be informed by the Government, which knows of the existence of the non-apparent information.\u00a0 In such instance, and without the information or advice to search metadata or apply additional programs to the disk or hard drive, production has not been made in a reasonably usable form.\u00a0 Rather, it has been made in a manner that disguises what is available, and what the Government knows it has in its arsenal of evidence that it intends to use at trial.[91]<\/p>\n

[26]\u00a0\u00a0\u00a0\u00a0\u00a0 While both government and defense attorneys continue to grapple with addressing and authenticating social media sources of evidence, courts largely seem to be erring on the side of admissibility and leaving any concerns about the evidence itself, such as who authored the evidence or whether the evidence is legitimate, to jurors to decide what weight to give that evidence.\u00a0 For example, courts have ruled social media evidence as admissible where the content of the evidence contains sufficient indicia that it is the authentic creation of the purported user.[92]\u00a0 In Tienda v. State<\/i>, the appellant was convicted of murder based in part on evidence that the prosecutors obtained after subpoenaing MySpace. [93]\u00a0 Specifically, \u201cthe State was permitted to admit into evidence the names and account information associated with [the defendant\u2019s MySpace.com profiles], photos posted on the profiles, comments and instant messages linked to the accounts, and two music links posted to the profile pages.\u201d[94]\u00a0 The Court of Criminal Appeals affirmed the trial judge\u2019s decision and concluded that the MySpace profile exhibits used at trial were admissible because they were a sufficient \u201cindicia of authenticity\u201d that \u201cthe exhibits were what they purported to be\u2014MySpace pages for which the appellant was responsible for\u201d the content.[95]<\/p>\n

[27]\u00a0\u00a0\u00a0\u00a0\u00a0 In another recent case, a defendant was convicted of aggravated assault following a domestic dispute with his girlfriend.[96]\u00a0 At trial, the prosecution introduced Facebook messages sent from the defendant\u2019s account in which he indicated that he regretted striking his girlfriend and asked for her forgiveness.[97]\u00a0 The defendant denied sending the Facebook messages and argued that both he and his girlfriend had access to each other\u2019s Facebook accounts.[98]\u00a0 On appeal, the court, acknowledging that \u201celectronic communications are susceptible to fabrication and manipulation,\u201d affirmed the trial court\u2019s ruling that allowed the state to authenticate the messages through circumstantial evidence, most notably that they were sent from the defendant\u2019s account and that the girlfriend testified that she did not send the messages.[99]\u00a0 In another instance, a federal court found that photographs of a defendant from his MySpace page, which depicted him holding cash, were relevant in his criminal trial for possession of firearms and drugs, but it withheld ruling on the admissibility of the photos and whether they presented a risk of unfair prejudice.[100]<\/p>\n

[28]\u00a0\u00a0\u00a0\u00a0\u00a0 Given the proliferation of social media, the increasing sophistication of technology, and the potential challenges relating to the reliability or authentication of social media, the authentication and admissibility of such evidence will likely continue to be the subject of vigorous disputes between parties that may mean the difference between ultimate guilt and innocence.<\/p>\n

\u00a0<\/i><\/b><\/p>\n

IX.\u00a0 Juries and Social Media<\/b><\/h3>\n

[29]\u00a0\u00a0\u00a0\u00a0\u00a0 Admissibility is just one challenge that the Internet and social media pose at trial.\u00a0 Another difficult issue relates to what information may be gathered about prospective jurors.\u00a0 At least one bar association has determined that attorneys may use social media websites to conduct juror research as long as no communication occurs between the lawyer and the juror as a result of the research.[101]\u00a0 However, attorneys may not research jurors if that research results in the juror receiving a communication.[102]\u00a0 Third parties working for the benefit of or on behalf of an attorney must comport with the same restrictions as that attorney and, similarly to other ethical restrictions on defense counsel\u2019s ability to use social media as an investigative tool discussed supra<\/i>, an attorney cannot use deception to gain access to a juror\u2019s website or to obtain information.[103]<\/p>\n

[30]\u00a0\u00a0\u00a0\u00a0\u00a0 One of the most recent and challenging social media trends relates to jurors using wireless communication devices to look up a defendant\u2019s criminal record, conduct their own investigation into a case, post their opinions about the case on social media websites, or attempt to \u201cfriend\u201d parties, lawyers, witnesses, or judges.\u00a0 In some instances, this conduct has resulted in mistrials and overturned convictions.[104]\u00a0 In other instances, such conduct has caused courts to conduct lengthy hearings to determine the impact of the juror\u2019s actions.\u00a0 For example, in Sluss v. Commonwealth<\/i>, a defendant appealed his murder, assault, and evidence tampering convictions on the grounds that two members of the jury, including one who served as the jury foreperson, failed to indicate during voir dire that they had each \u201cfriended\u201d the victim\u2019s mother through Facebook.[105]\u00a0 The Supreme Court of Kentucky, noting that being a \u201cfriend\u201d on Facebook was not enough by itself to prove bias for disqualification as those \u201cfriendships\u201d may be superficial, reversed and remanded the case with instructions to hold a hearing on whether the jurors should have been struck from the jury panel on the basis of their alleged social networking activity.[106]\u00a0 Finally, the inappropriate use of social media has led to stiff penalties for both jurors and attorneys.[107]<\/p>\n

[31]\u00a0\u00a0\u00a0\u00a0\u00a0 Both legislatures and courts have attempted to respond to these trends.\u00a0 For example, California adopted a new statute clarifying that jurors may not use social media and the Internet, such a
\ns texting, Twitter, Facebook, and Internet searches, to research or disseminate information about cases, and they can be held in criminal or civil contempt for violating these restrictions.[108]\u00a0 On August 21, 2012, a Judicial Conference Committee announced that it had created an updated model set of jury instructions to help judges discourage jurors from conducting research or communicating about their cases through social media.[109]\u00a0 The model instructions state:<\/p>\n

I know that many of you use cell phones, Blackberries, the Internet and other tools of technology. . . . You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, including Facebook, Google+, My Space, LinkedIn, or YouTube.\u00a0 You may not use any similar technology of social media, even if I have not specifically mentioned it here.<\/em>[110]<\/p>\n

[32]\u00a0\u00a0\u00a0\u00a0\u00a0 The chair of the Conference Committee who provided the updated rules stressed that:<\/p>\n

The judges recommended that jurors frequently be reminded about the prohibition on social media before the trial, at the close of a case, at the end of each day before jurors return home, and other times, as appropriate.\u00a0 Jurors should be told why refraining from use of social media promotes a fair trial.\u00a0 Finally, jurors should know the consequences of violations during trial, such as mistrial and wasted time.\u00a0 Those recommendations are now part of the guidelines.<\/em>[111]<\/p>\n

\u00a0<\/i><\/b><\/p>\n

X.\u00a0 Conclusion<\/b><\/h3>\n

[33]\u00a0\u00a0\u00a0\u00a0\u00a0 Social media evidence is undeniably a critical new frontier of government investigations and criminal proceedings.\u00a0 Social media has rapidly become so pervasive that while users are creating warehouses of data every day and social media companies roll out new communication features, courts, government agencies, practitioners, and the social media companies themselves are struggling to understand how this information fits into existing legal paradigms of constitutional protections, the SCA, and rules of evidence.\u00a0 Despite this uncertainty, one thing is clear.\u00a0 The government has a deep and largely one-sided set of tools for seeking out and obtaining social media evidence that plays an ever-increasing critical role in their investigations and litigation.<\/p>\n

\u00a0<\/div>\n
\n
\n

* Justin P. Murphy is a counsel in Crowell & Moring\u2019s Washington, D.C. office where he practices in the firm\u2019s White Collar & Regulatory Enforcement Group and E-Discovery and Information Management Group. \u00a0Adrian Fontecilla is an associate in Crowell & Moring\u2019s Washington, D.C. office where he practices in the firm\u2019s Antitrust Group.\u00a0 Both are contributors to Crowell & Moring\u2019s E-Discovery Law Insights blog – http:\/\/www.ediscoverylawinsights.com\/.<\/p>\n

 <\/p>\n

[1] Experian Marketing Services, The 2012 Digital Marketer: Benchmark and Trend Report 79 (2012), available at<\/i> http:\/\/www.experian.com\/simmons-research\/register-2012-digital-marketer.html.<\/p>\n<\/div>\n

\n

[2] <\/i>Nielsen, State of the Media: Social Media Report 2012, at 4 (2012), available at <\/i>http:\/\/blog.nielsen.com\/nielsenwire\/social\/2012\/ (last visited Dec. 31, 2012).<\/p>\n<\/div>\n

\n

[3] Connect: Social Media Madness U.S. 2012<\/i>, Netpop Research (April 2012), available at<\/i> http:\/\/netpopresearch.com\/social-media-madness.<\/p>\n<\/div>\n

\n

[4] Tom Webster, The Social Habit 2011<\/i>, Edison Research (May 29, 2011), http:\/\/www.edisonresearch.com\/home\/archives\/2011\/05\/the_social_habit_2011.php.<\/p>\n<\/div>\n

\n

[5] Aaron Smith, Laurie Segall & Stacy Cowley, Facebook Reaches One Billion Users<\/i>, Cnn Money (Oct. 4, 2012, 9:50 AM), http:\/\/money.cnn.com\/2012\/10\/04\/technology\/facebook-billion-users\/index.html.<\/p>\n<\/div>\n

\n

[6] Brian Honigman, 100 Fascinating Social Media Statistics and Figures From 2012<\/i>, Huffington Post (Nov. 11, 2012, 7:32 PM), http:\/\/www.huffingtonpost.com\/brian-honigman\/100-fascinating-social-me_b_2185281.html.<\/p>\n<\/div>\n

\n

[7] Erik Qualman, 10 New 2012 Social Media Stats = WOW!<\/i>, Socialnomics, http:\/\/www.socialnomics.net\/2012\/06\/06\/10-new-2012-social-media-stats-wow\/ (last visited Dec. 31, 2012).<\/p>\n<\/div>\n

\n

[8] See <\/i>Pingdom, Social Network Demographics in 2012 (2012), available at <\/i>http:\/\/royal.pingdom.com\/2012\/08\/21\/report-social-network-demographics-in-2012\/.<\/p>\n<\/div>\n

\n

[9] Nielsen and Twitter Establish Social TV Rating<\/i>, nielsen (Dec. 17, 2012), http:\/\/www.nielsen.com\/us\/en\/insights\/press-room\/2012\/nielsen-and-twitter-establish-social-tv-rating.html.<\/p>\n<\/div>\n

\n

[10] Instagram Press Center<\/i>, Instagram, http:\/\/instagram.com\/press\/ (last visited Feb. 1, 2013).<\/p>\n<\/div>\n

\n

[11] Josh James, How Much Data Is Created Every Minute?<\/i>, <\/i>Domo <\/i>(June 8, 2012), http:\/\/www.domo.com\/blog\/2012\/06\/how-much-data-is-created-every-minute\/.<\/p>\n<\/div>\n

\n

[12] Honigman, supra<\/i> note 6.<\/p>\n<\/div>\n

\n

[13] See <\/i>Quagliarello v. Dewees, No. 09-4870, 2011 WL 3438090, at *2 (E.D. Pa. Aug. 4, 2011) (\u201cAs the use of social media such as Myspace and Facebook has proliferated, so too has the value of these websites as a source of evidence for litigants.\u201d).<\/p>\n<\/div>\n

\n

[14] See, e.g.<\/i>, <\/i>Carly Carioli, When the Cops Subpoena Your Facebook Information, Here\u2019s What Facebook Sends the Cops<\/i>, <\/i>The Phoenix (Apr. 6, 2012, 8:30 AM), http:\/\/blog.thephoenix.com\/blogs\/phlog\/archive\/2012\/04\/06\/when-police-subpoena-your-facebook-information-heres-what-facebook-sends-cops.aspx (noting the breadth of information Facebook provided in response to a subpoena from the Boston Police Department).<\/p>\n<\/div>\n

\n

[15] Cf. <\/i>Marcia Hofmann et al., Elec. Frontier Found., 2012: When the Government Comes Knocking, Who Has Your Back? 7 (2012), available at <\/i>https:\/\/www.eff.org\/sites\/default\/files\/who-has-your-back-2012_0_0.pdf (discussing issues arising from government access to location data and the companies that collect data).<\/p>\n<\/div>\n

\n

[16] Eyder Peralta, Betrayed By Metadata: John McAfee Admits He\u2019s Really in Guatemala<\/i>, NPR (Dec. 4, 2012, 12:24 PM), http:\/\/www.npr.org\/blogs\/thetwo-way\/2012\/12\/04\/166487197\/betrayed-by-metadata-john-mcafee-admits-hes-really-in-guatemala.<\/p>\n<\/div>\n

\n

[17] See, e.g.<\/i>, United States v. Anderson, 664 F.3d 758, 761-62 (8th Cir. 2012) (affirming the conviction of a defendant sentenced to 12 years in prison based in part on over 800 private chats with adolescent girls and inappropriate pictures that were obtained through a search warrant for defendant\u2019s Facebook account).<\/p>\n<\/div>\n

\n

[18] See, e.g.<\/i>, U.S. Dep\u2019t of Homeland Sec., Privacy Impact Assessment for the Office of Operations Coordination and Planning: Publicly Available Social Media Monitoring and Situational Awareness Initiative 3 (2010), available at <\/i>http:\/\/www.dhs.gov\/xlibrary\/assets\/privacy\/privacy_pia_ops_publiclyavailablesocialmedia.pdf (noting that the National Operations Center will use publicly available search engines and content aggregators to monitor activities on social media sites); see also<\/i> Role of Social Media in Law Enforcement Significant and Growing<\/i>, LexisNexis (July 18, 2012), http:\/\/www.lexisnexis.com\/media\/press-release.aspx?id=1342623085481181 (stating that, according to the results of a comprehensive survey, over eighty percent of local and federal agencies use social media during investigations).<\/p>\n<\/div>\n

\n

[19] Rocco Parascandola, NYPD Forms New Social Media Unit to Mine Facebook and Twitter for Mayhem<\/i>, NY Daily News (Aug. 10, 2011, 4:00 AM), http:\/\/www.nydailynews.com\/new-york\/nypd-forms-new-social-media-unit-facebook-twitter-mayhem-article-1.945242.<\/p>\n<\/div>\n

\n

[20] New Study Shows 66% of Government Organizations Have Adopted Social Networking, Collaboration Tools<\/i>, <\/i>saba (Jan. 14, 2010), http:\/\/www.saba.com\/company\/press-releases\/2010\/s
\naba-and-hci-publish-study-of-social-networking-in-government\/.<\/p>\n<\/div>\n

\n

[21] See generally <\/i>Eric Larson, 8 Dumb Criminals Caught Through Facebook<\/i>, Mashable (Dec. 12, 2012), http:\/\/mashable.com\/2012\/12\/12\/crime-social-media\/.<\/p>\n<\/div>\n

\n

[22] Id.<\/i><\/p>\n<\/div>\n

\n

[23] Id.<\/i><\/p>\n<\/div>\n

\n

[24] See <\/i>Shea Bennett, Facebook, Twitter, Pinterest, Instagram \u2013 Social Media Statistics and Facts 2012<\/i>, All Twitter (Nov. 1, 2012, 6:00 AM), http:\/\/www.mediabistro.com\/alltwitter\/social-media-stats-2012_b30651.<\/p>\n<\/div>\n

\n

[25] See, e.g<\/i>., United States v. Robison, No. 11CR380 DWF\/TNL, 2012 WL 1110086, at *1-2 (D. Minn. Mar. 16, 2012) (noting that law enforcement created fake online identity and became Facebook friends with defendant, \u201cwhich permitted [the government] to view [the defendant\u2019s] name and photo on his Facebook account\u201d); United States v. Phillips, Criminal No. 3:06\u2013CR\u201347, 2009 WL 1918931, at *7 (N.D. W. Va. July 1, 2009) (noting that the government \u201ccreated an undercover user profile on www.myspace.com\u201d).<\/p>\n<\/div>\n

\n

[26] United States v. Meregildo, No. 11 Cr. 576(WHP), 2012 WL 3264501, at *2 (S.D.N.Y. Aug. 10, 2012).<\/p>\n<\/div>\n

\n

[27] Id.<\/i><\/p>\n<\/div>\n

\n

[28] Id.<\/i> at *1.<\/p>\n<\/div>\n

\n

[29] Id.<\/i> at *2 (internal citations omitted).<\/p>\n<\/div>\n

\n

[30] Ryan Gallagher, Feds Monitor Facebook \u201cLikes,\u201d Infiltrate Skype Chats To Build Terrorism Case<\/i>, Slate (Nov. 29, 2012, 4:33 PM), http:\/\/mobile.slate.com\/blogs\/future_tense\/2012\/11\/29\/facebook_likes_skype_used_to_build_fbi_case_against_california_terrorism.html.<\/p>\n<\/div>\n

\n

[31] Complaint at \u00b6\u00b6 26-28, United States v. Kabir, No. ED12-0431M (C.D. Cal. Nov. 16, 2012), 2012 WL 6576560.<\/p>\n<\/div>\n

\n

[32] Gallagher, supra<\/i> note 30.<\/p>\n<\/div>\n

\n

[33] See <\/i>Netflix Form 8-K filed Dec. 5, 2012; Christopher Garcia & Melanie Conroy, Reg FD Alert: Applying Securities Laws to Social Media Communications 1 (2012), available at <\/i>http:\/\/www.weil.com\/files\/upload\/Weil_Alert_Sec_Lit_Enforcement_Dec_21_2012.pdf.<\/p>\n<\/div>\n

\n

[34] Id. <\/i>at 2.<\/p>\n<\/div>\n

\n

[35] See Netflix CEO\u2019s Facebook Post Triggered SEC Wells Notice<\/i>, <\/i>CNBC (Dec. 7, 2012, 7:10 AM), http:\/\/www.cnbc.com\/id\/100289227\/Netflix_CEO039s_Facebook_Post_Triggered_SEC_Wells_Notice; Garcia & Conroy, supra<\/i> note 33, at 1.<\/p>\n<\/div>\n

\n

[36] Twitter Transparency Report<\/i>, Twitter Blog (July 2, 2012), http:\/\/blog.twitter.com\/2012\/07\/twitter-transparency-report.html.<\/p>\n<\/div>\n

\n

[37] Id.<\/i><\/p>\n<\/div>\n

\n

[38] Transparency Report\u2014FAQ<\/i>, Google, http:\/\/www.google.com\/transparencyreport\/userdatarequests\/faq\/ (last visited Jan.15, 2013).<\/i><\/p>\n<\/div>\n

\n

[39] Transparency Report\u2014User Data Requests, <\/i>Google, http:\/\/www.google.com\/transparencyreport\/userdatarequests\/US\/ (last visited Jan. 16, 2013) (demonstrating that requests increased from 3,580 in a period between July to December 2009 to 8,438 in a period from July to December 2012); Transparency Report\u2014User Data Requests, <\/i>Google, http:\/\/www.google.com\/transparencyreport\/userdatarequests\/countries\/?t=table (last visited Feb. 8, 2013) (demonstrating that the United States accounts for 8,438 of the 21, 389 user data requests Google received from July to December 2012).<\/p>\n<\/div>\n

\n

[40] Role of Social Media in Law Enforcement Significant and Growing<\/i>, supra<\/i> note 18.<\/p>\n<\/div>\n

\n

[41] See, e.g.<\/i>, United States v. Anderson, 664 F.3d 758, 762 (8th Cir. 2012) (noting hundreds of Facebook private chats obtained through a search warrant); United States v. Kearney, 672 F.3d 81, 84 (1st Cir. 2012) (noting that law enforcement used account and IP address information obtained from MySpace via an administrative subpoena to subpoena defendant\u2019s Internet provider for his name and address); In re <\/i>Grand Jury Subpoena No. 11116275, 846 F. Supp. 2d 1, 2 (D.D.C. 2012) (denying anonymous intervenor\u2019s motion to quash a subpoena issued to Twitter by a federal grand jury for records pertaining to the intervenor\u2019s identity); United States v. Sayer, Criminal No. 2:11 cr 113 DBH, 2012 WL 2180577, at *3 (D. Me. June 13, 2012) (using subpoenas to obtain evidence from Facebook and MySpace); United States v. Meregildo, No. 11 Cr. 576(WHP), 2012 WL 3264501, at *2 (S.D.N.Y. Aug. 10, 2012) (obtaining evidence through warrant issued to Facebook); People v. Harris, 949 N.Y.S.2d 590, 597 (N.Y. Crim. Ct. 2012) (observing that state sent Twitter a subpoena seeking to obtain defendant\u2019s user information and Tweets).<\/p>\n<\/div>\n

\n

[42] See<\/i> United States v. Warshak, 631 F.3d 266, 282 (6th Cir. 2010) (citing 18 U.S.C. \u00a7\u00a7 2701-2711); see also<\/i> Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 977 (C.D. Cal. 2010) (applying the SCA to subpoenas issued to Facebook and MySpace while recognizing that no courts \u201chave addressed whether social-networking sites fall within the ambit of the statute\u201d).<\/p>\n<\/div>\n

\n

[43] See<\/i> Rudolph J. Burshnic, Note, Applying the Stored Communications Act to the Civil Discovery of Social Networking Sites<\/i>, 69 Wash. & Lee L. Rev. 1259, 1261-64 (2012).<\/p>\n<\/div>\n

\n

[44] See, e.g.<\/i>, Hubbard v. MySpace, Inc., 788 F. Supp. 2d 319, 321-27 (S.D.N.Y. 2011) (holding that search warrant served by state authorities on MySpace to produce, among other things, the account IP address, the contents of the account user\u2019s inbox, and sent email was sufficient to satisfy the requirements of the Stored Communications Act); Crispin<\/i>, 717 F. Supp. 2d at 991 (acknowledging the privacy settings of the user, the court quashed subpoenas seeking private messages on Facebook and MySpace as they were protected under the Stored Communications Act).<\/p>\n<\/div>\n

\n

[45] See <\/i>18 U.S.C. \u00a7 2703(c)(1)(a)-(b) (2006).<\/p>\n<\/div>\n

\n

[46] See Warshak, <\/i>631 F.3d at 283.<\/p>\n<\/div>\n

\n

[47] Id.<\/i><\/p>\n<\/div>\n

\n

[48] Id.<\/i> (citation omitted).\u00a0 Since Warshak<\/i>, most major providers state that they require a search warrant to compel the stored contents of any account.\u00a0 See, e.g.<\/i>, Information for Law Enforcement Authorities<\/i>, Facebook, https:\/\/www.facebook.com\/safety\/groups\/law\/guidelines\/ (last visited Jan. 2, 2012) (\u201cA search warrant issued under the procedures described in the Federal Rules of Criminal Procedure or equivalent state warrant procedures upon a showing of probable cause is required to compel the disclosure of the stored contents of any account, which may include messages, photos, videos, wall posts, and location information.\u201d).<\/p>\n<\/div>\n

\n

[49] See Warshak<\/i>, 631 F.3d at 288.<\/p>\n<\/div>\n

\n

[50] Id<\/i>.<\/p>\n<\/div>\n

\n

[51] Id. <\/i>at 286 (citations omitted).<\/p>\n<\/div>\n

\n

[52] Id. <\/i>at 285-86.<\/p>\n<\/div>\n

\n

[53] See <\/i>Noel Brinkerhoff, Congress, at Last Minute, Drops Requirement to Obtain Warrant to Monitor Email<\/i>, AllGov (Dec. 25, 2012), http:\/\/www.allgov.com\/news\/top-stories\/congress-at-last-minute-drops-requirement-to-obtain-warrant-to-monitor-email-121225?news=846578.<\/p>\n<\/div>\n

\n

[54] See Warshak<\/i>, <\/i>631 F.3d at 288 (holding that warrantless seizure of emails from ISP pursuant to SCA violated Fourth Amendment); see also <\/i>Nathan Petrashek, Comment, The Fourth Amendment and the Brave New World of Online Social Networking<\/i>, 93 Marq. L. Rev. 1495, 1513-32 (2010) (arguing that individuals should have Fourth Amendments rights in their privately shared information on social networking platforms).<\/p>\n<\/div>\n

\n

[55] As of the date of publication, the appeal had not been decided.<\/p>\n<\/div>\n

\n

[56] People v. Harris, 945 N.Y.S.2d 505, 510 (N.Y. Crim. Ct. 2012).<\/p>\n<\/div>\n

\n

[57] See <\/i>People v. Harris, 949 N.Y.S.2d 590, 598 (N.Y. Crim. Ct. 2012) (granting in part and denying in part the motion to quash).\u00a0 The court found in favor of the government for all non-content information and content information from September 15, 2011, to December 30, 2011. \u00a0Content information less
\n than 180 days old (tweeted on December 31, 2011) could only be disclosed pursuant to a search warrant.<\/p>\n<\/div>\n

\n

[58] See <\/i>Russ Buettner, A Brooklyn Protester Pleads Guilty After His Twitter Posts Sink His Case<\/i>, N.Y. Times, Dec. 12, 2012, at A31, available at <\/i>http:\/\/www.nytimes.com\/2012\/12\/13\/nyregion\/malcolm-harris-pleads-guilty-over-2011-march.html.<\/p>\n<\/div>\n

\n

[59] Guidelines for Law Enforcement<\/i>, Twitter, http:\/\/support.twitter.com\/entries\/41949-guidelines-for-law-enforcement#section9 (last visited Jan, 15, 2013).<\/p>\n<\/div>\n

\n

[60] See <\/i>Hofmann et al, supra<\/i> note 15, at 8-9 (\u201cDropbox, LinkedIn, Sonic.net and SpiderOak have now joined Twitter in promising to notify their users when possible about government attempts to seek information about them.\u201d).<\/p>\n<\/div>\n

\n

[61] See <\/i>Somini Sengupta, Twitter\u2019s Free Speech Defender<\/i>, N.Y. Times, Sept. 3, 2012, at B1, available at <\/i>http:\/\/www.nytimes.com\/2012\/09\/03\/technology\/twitter-chief-lawyer-alexander-macgillivray-defender-free-speech.html?pagewanted=all&_r=0.<\/p>\n<\/div>\n

\n

[62] Brief for Non-Party Movant-Appellant at *12-14, People v. Harris, No. 2011-080152, 2012 WL 3867233 (N.Y. App. Div. Aug. 27, 2012) (noting Twitter\u2019s Terms of Service state, \u201cYou retain your rights to any Content you submit, post or display on or through the Services\u201d (internal citation omitted)).<\/p>\n<\/div>\n

\n

[63] See id<\/i>. at *16, 19.<\/p>\n<\/div>\n

\n

[64] See id. <\/i>at *18-19 (citing United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010)).<\/p>\n<\/div>\n

\n

[65] See id.<\/i> at *20-21.<\/p>\n<\/div>\n

\n

[66] See id.<\/i> at *21-22 (citing People v. Weaver, 12 N.Y.3d 433, 441-45 (2009); United States v. Jones, 132 S. Ct. 945, 949 (2012)).<\/p>\n<\/div>\n

\n

[67] Doug Austin, Twitter Turns Over Tweets in <\/i>People v. Harris, eDiscovery Daily blog (Oct. 3, 2012), http:\/\/www.ediscoverydaily.com\/2012\/10\/twitter-turns-over-tweets-in-people-v-harris-ediscovery-case-law.html.<\/p>\n<\/div>\n

\n

[68] <\/i>United States v. Meregildo, No. 11 Cr. 576(WHP), 2012 WL 3264501, at *2 (S.D.N.Y. Aug. 10, 2012).<\/p>\n<\/div>\n

\n

[69] See, e.g.<\/i>, <\/i>R.S. v. Minnewaska Area Sch. Dist. No. 2149, Civ. No. 12-588 (MJD\/LIB), 2012 WL 3870868, at *12 (D. Minn. Sept. 6, 2012) (finding that sixth grader had reasonable expectation of privacy in private messages exchanged via her password-protected Facebook account); see also <\/i>Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 991 (C.D. Cal. 2010) (holding that \u201cwebmail and private messaging [are] . . .\u00a0 inherently private\u201d).<\/p>\n<\/div>\n

\n

[70] Minnewaska Area Sch. Dist. No. 2149<\/i>, 2012 WL 3870868, at *11; Crispin<\/i>, 717 F. Supp. 2d at 991.<\/p>\n<\/div>\n

\n

[71] See<\/i> Timeline Privacy<\/i>, Facebook, http:\/\/www.facebook.com\/help\/393920637330807\/#!\/help\/393920637330807\/ (last visited Jan. 20, 2013).<\/p>\n<\/div>\n

\n

[72] See In re<\/i> Applications for Search Warrants for Info. Assoc. with Target Email Address, No. 2:12-mj-08119-JPO, 2012 WL 4383917, at *5 (D. Kan. Sept. 21, 2012) (holding that an individual has a Fourth Amendment right of privacy to emails and online faxes stored with, sent to, or received through third-party internet service providers).<\/p>\n<\/div>\n

\n

[73] See <\/i>United States v. Warshak, 631 F.3d 266, 284-85 (6th Cir. 2010) (\u201c[T]he Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantees will wither and perish.\u201d).<\/p>\n<\/div>\n

\n

[74] See <\/i>Daniel K. Gelb, Defending a Criminal Case from the Ground to the Cloud<\/i>, 27 Crim. Just. 28, 29 (2012).<\/p>\n<\/div>\n

\n

[75] See <\/i>Zach Winnick, Social Media an Ethical Minefield for Attorneys<\/i>, Law360 (Apr. 13, 2012, 9:55 PM), http:\/\/www.law360.com\/articles\/329795\/social-media-an-ethical-minefield-for-attorneys (noting ethical concerns regarding private counsel\u2019s use of social networking sites in connection with litigation that are generally not shared by government authorities in investigations).<\/p>\n<\/div>\n

\n

[76] See, e.g<\/i>., <\/i>Phila. Bar Ass\u2019n Prof\u2019l Guidance Comm., Op. 2009-02, at 1-3 (2009), available at<\/i> 2009 WL 934623 (concluding that a social media friend request to a witness in the litigation by a third party for the purpose of gathering social media evidence is \u201cdeceptive\u201d and in violation of ethical rules); N.Y. State Bar Ass\u2019n, Comm. on Prof\u2019l Ethics, Op. 843, at 2 (2010), available at <\/i>2010 WL 3961381 (noting that accessing publicly available social media evidence is permissible but \u2018friending\u201d another party to do so is not); San Diego Cnty. Bar Legal Ethics Comm., Op. 2011-02 (2011), available at <\/i>http:\/\/www.sdcba.org\/index.cfm?pg=LEC2011-2 (stating that ethics rules bar attorneys from making ex parte friend request of a represented party or \u2018deceptive\u2019 friend requests of unrepresented witnesses).<\/p>\n<\/div>\n

\n

[77] In criminal litigation, the majority of evidence, electronic or otherwise, is collected by the government prior to trial, and Federal Rule of Criminal Procedure 16 does not require the government to produce such evidence unless it is being used in the government\u2019s case-in-chief.\u00a0 See Warshak<\/i>, 631 F.3d at 327 (citing Fed. R. Crim. P. 16).<\/p>\n<\/div>\n

\n

[78] See <\/i>Fed. R. Crim. P. 17(c)(1).<\/p>\n<\/div>\n

\n

[79] See <\/i>Fed. R. Crim. P. 17(a), (c)(3).<\/p>\n<\/div>\n

\n

[80] See <\/i>18 U.S.C. \u00a7 2703(a), (c) (2006).<\/p>\n<\/div>\n

\n

[81] Erin Fuchs, A Jury Will Likely Scrutinize Trayvon Martin\u2019s Deleted Facebook and Twitter Accounts<\/i>, Business Insider (Oct.19, 2012, 2:56 PM), http:\/\/www.businessinsider.com\/zimmerman-can-subpoena-social-media-2012-10.<\/p>\n<\/div>\n

\n

[82] See <\/i>Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that \u201cthe suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material\u201d); Giglio v. United States, 405 U.S. 150, 153-54 (1972) (\u201cWhen the \u2018reliability of a given witness may well be determinative of guilt or innocence,\u2019 nondisclosure of evidence affecting credibility falls within this general rule [under Brady<\/i>].\u201d (citation omitted)) .<\/p>\n<\/div>\n

\n

[83] Juror No. One v. Cal., No. CIV. 2:11397 WBS JFM, 2011 WL 567356, at *1 (E.D. Cal. Feb. 14, 2011).<\/p>\n<\/div>\n

\n

[84] Katiroll Co. v. Kati Roll & Platters, Inc.<\/i>, Civil Action No. 10 3620 (GEB), 2011 WL 3583408, at *4 (D.N.J. Aug. 3, 2011).<\/p>\n<\/div>\n

\n

[85] Barnes v. CUS Nashville, LLC, No. 3:09cv00764, 2010 WL 2265668, at *1 (M.D. Tenn. June 3, 2010).<\/p>\n<\/div>\n

\n

[86] See, e.g.<\/i>, Gallion v. Gallion, No. FA114116955S, 2011 WL 4953451, at *1 (Conn. Super. Ct. Sept. 30, 2011) (ordering parties to exchange passwords to Facebook and a dating website); McMillen v. Hummingbird Speedway, <\/i>Inc.<\/i>, No. 113-2010 CD, 2010 WL 4403285 (Pa. Ct. Com. Pl. Sept. 9, 2010) (ordering plaintiff to produce Facebook and MySpace login credentials to opposing counsel for \u201cread-only access\u201d).<\/p>\n<\/div>\n

\n

[87] See, e.g.<\/i>, Griffin v. State, 19 A.3d 415, 424 (Md. 2011) (recognizing \u201c[t]he potential for abuse and manipulation of a social networking site by someone other than its purported creator\u201d).<\/p>\n<\/div>\n

\n

[88] United States v. Stirling, No. 1:11-cr-20792-CMA, at 2 (S.D. Fla. June 5, 2012), available at <\/i>http:\/\/www.fuerstlaw.com\/wp\/wp-content\/uploads\/2012\/06\/altonaga-order-granting-new-trial1.pdf; see U.S. District Court in Miami Orders New Trial Based on Discovery Violation for Electronically Stored Information<\/i>, Fuerst Ittleman David & Joseph PL (June 25, 2012, 12:24 PM), http:\/\/www.fuerstlaw.com\/wp\/index.php\/25\/u-s-district-court-in-miami-orders-new-trial-based-on-discovery-violation-for-electronically-stored-information\/.<\/p>\n<\/div>\n

\n

[89] Id.<\/i> at 2.<\/p>\n<\/div>\n

\n

[90] Id.<\/i><\/p>\n<\/div>\n

\n

[91] Id.<\/i> at 4-5.<\/p>\n<\/div>\n

\n

[92] See, e.g.<\/i>, <\/i>People v. Lesser, No. H034189, 2011 WL 193460, at *4, *6 (Cal. Ct. App. Jan. 21, 2011
\n) (finding officer\u2019s testimony that he cut and pasted portions of Internet chat transcript was sufficient for admissibility); People v. Valdez, 135 Cal. Rptr. 3d 628, 632-33, 635 (Cal. Ct. App. 2011) (upholding conviction where the court correctly admitted a trial exhibit consisting of printouts of defendant\u2019s MySpace page, which the prosecution’s gang expert relied on in forming his opinion that defendant was an active gang member); People v. Fielding, No. C06022, 2010 WL 2473344, at *4-5 (Cal. Ct. App. June 18, 2010) (finding incriminating MySpace messages sent by defendant authenticated by victim who testified he believed defendant had sent them; inconsistencies and conflicting inferences regarding authenticity goes to weight of evidence, not its authenticity).<\/p>\n<\/div>\n

\n

[93] Tienda <\/i>v. <\/i>State, 358 S.W.3d 633, 634-35 (Tex. Crim. App. 2012).<\/p>\n<\/div>\n

\n

[94] Id.<\/i> at 635.<\/p>\n<\/div>\n

\n

[95] Id.<\/i> at 647.<\/p>\n<\/div>\n

\n

[96] Campbell v. Texas, 382 S.W.3d 545, 546 (Tex. App. 2012).<\/p>\n<\/div>\n

\n

[97] Id<\/i>. at 551.<\/p>\n<\/div>\n

\n

[98] Id. <\/i><\/p>\n<\/div>\n

\n

[99] Id.<\/i> at 549-50, 552.<\/p>\n<\/div>\n

\n

[100] United States v. Drummond, No. 1:09-cr-00159, 2010 WL 1329059, at *2-3 (M.D. Pa. Mar. 29, 2010).\u00a0 The defendant ultimately entered a guilty plea, and the court did not make a final ruling on the admissibility of the photographs.\u00a0 Plea Agreement, Drummond<\/i>, No. 1:09-cr-00159, 2010 WL7367722 (M.D. Pa. Nov. 29, 2010).<\/p>\n<\/div>\n

\n

[101] See <\/i>N.Y. State Bar Ass\u2019n Comm. on Prof\u2019l Ethics, Formal Op. 2012-2, at 5 (2012) available at<\/i> 2012 WL 2304271; see also <\/i>N.Y. Cnty. Lawyers\u2019 Ass\u2019n Comm. on Prof\u2019l Ethics, Formal Op. 743 (2011), available at<\/i> http:\/\/www.nycla.org\/siteFiles\/Publications\/Publications1450_0.pdf (advising that it is ethical for lawyers to vet potential jurors by monitoring social network activity provided there is no contact or communication with the prospective jurors, and the lawyer does not seek to friend jurors, subscribe to Twitter accounts, send jurors tweets, or act in any way that alerts the jurors to the monitoring); Sluss v. Commonwealth, 381 S.W.3d 215, 227-28 (Ky. 2012) (adopting the model established by the New York County Lawyers Association).<\/p>\n<\/div>\n

\n

[102] N.Y. State Bar Ass\u2019n Comm. on Prof\u2019l Ethics, Formal Op. 2012-2, supra<\/i> note 101, at 5 (noting that even if an attorney unknowingly or inadvertently causes a communication with a juror, such conduct may run afoul of the Rules of Professional Conduct).<\/p>\n<\/div>\n

\n

[103] Id.<\/i> at 6-7.<\/p>\n<\/div>\n

\n

[104] See <\/i>Dimas-Martinez v. State, 385 S.W.3d 238, 246, 247, 249 (Ark. 2011) (reversing appellant\u2019s murder conviction and calling for a new trial when a juror tweeted several times during court proceedings, writing in one tweet, \u201cChoices to be made. Hearts to be broken. We each define the great line,\u201d and later tweeting \u201cIts [sic] over\u201d before the jury announced its verdict).<\/p>\n<\/div>\n

\n

[105] Sluss<\/i>, 381 S.W.3d at 220-22.<\/p>\n<\/div>\n

\n

[106] Id.<\/i> at 223, 228-29; see also <\/i>U.S. v. Ganias, Crim No. 3:08CR224(EBB), 2011 WL 4738684, (D. Conn. Oct. 5, 2011).\u00a0 In Ganias<\/i>, the defendant filed a motion for a new trial on the eve of sentencing based on alleged juror improprieties.\u00a0 Id. <\/i>\u00a0at *1.\u00a0 The juror posted a variety of comments on the Facebook page, ranging from \u201cJury duty 2morrow. I may get to hang someone\u00a0…\u00a0can’t wait\u00a0…\u201d before the presentation of the evidence, to \u201cGuinness for lunch break.\u00a0 Jury duty ok today\u201d during the three-week trial.\u00a0 Id.<\/i> at *2.\u00a0 On the day of the verdict he posted \u201cGuilty :),\u201d and he also added a fellow juror as one of his Facebook friends.\u00a0 Id.<\/i>\u00a0 Taken together, the defendant argued that the comments showed his Sixth Amendment rights were offended due to a biased juror.\u00a0 Id. <\/i>at *1.\u00a0 When questioned, the juror assured the judge that he was merely \u201cjoking,\u201d and that he \u201cabsolutely was an impartial and fair juror.\u201d\u00a0 U.S. v. Ganias, Crim No. 3:08-CR-00224-EBB, 2011 WL 4738684, *3 (D. Conn. Oct. 5, 2011).\u00a0 The court found those statements presumptively honest, and denied the defendant\u2019s motion.\u00a0 See id.<\/i> at *4.<\/p>\n<\/div>\n

\n

[107] See<\/i> John Barry, Hillsborough Judge Vows to Send Prospective Juror to Jail<\/i>, Tampa Bay Times, Oct. 11, 2012, available at <\/i>http:\/\/www.tampabay.com\/news\/courts\/criminal\/hillsborough-judge-vows-to-send-prospective-juror-to-jail\/1255802 (noting that prospective juror faces jail time for researching case and discussing it with the other jurors even after Tampa Bay court provided each member of the jury pool with a written order not to research or discuss the case and admonished and warned the jurors about the order at each break); Robert Eckhart, Juror Jailed Over Facebook Friend Request<\/i>, <\/i>Herald-Tribune, Feb. 16, 2012, available at <\/i>http:\/\/www.heraldtribune.com\/article\/20120216\/ARTICLE\/120219626 (reporting that a court sentenced a juror to three days in jail for sending a Facebook message to the defendant and then posting \u201cScore\u2026I got dismissed!!\u00a0 apparently they frown upon sending a friend request to the defendant\u2026haha,\u201d on Facebook after his dismissal from the jury); David Ovalle, Lawyer\u2019s Facebook Photo Causes Mistrial in Miami-Dade Murder Case<\/i>, Miami Herald, Sept. 13, 2012, available at <\/i>http:\/\/www.miamiherald.com\/2012\/09\/12\/2999630\/lawyers-facebook-photo-causes.html (reporting that a Miami judge declared a mistrial in a murder case after the public defender posted a photo of her client\u2019s leopard-print underwear on Facebook, which also led to the attorney\u2019s firing).<\/p>\n<\/div>\n

\n

[108] See<\/i> 2011 Cal. Stat. 181.<\/p>\n<\/div>\n

\n

[109] See Revised Jury Instructions Hope to Deter Juror Use of Social Media During Trial<\/i>, United States Courts (Aug. 21, 2012), http:\/\/news.uscourts.gov\/revised-jury-instructions-hope-deter-juror-use-social-media-during-trial.<\/p>\n<\/div>\n

\n

[110] Judicial Conf. Comm. on Court Admin. & Case Mgmt., <\/i>Proposed Model Jury Instructions:\u00a0 The Use of Electronic Technology to Conduct Research on or Communicate about a Case 1 (2012), available at <\/i>http:\/\/www.uscourts.gov\/uscourts\/News\/2012\/jury-instructions.pdf.<\/p>\n<\/div>\n

\n

[111] United States Courts, supra <\/i>note 109. <\/b><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Download PDF Cite as: Justin P. Murphy & Adrian Fontecilla, Social Media Evidence in\u00a0Government Investigations and Criminal Proceedings: A Frontier of New\u00a0Legal Issues, 19 RICH. J.L. & TECH 11 (2013), available at\u00a0http:\/\/jolt.richmond.edu\/v19i3\/article11.pdf. \u00a0 By Justin P. Murphy and Adrian Fontecilla* I.\u00a0 Introduction [1]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 As the newest pillar of communication in today\u2019s society, social media is […]<\/p>\n","protected":false},"author":4287,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[1228],"tags":[],"class_list":["post-1165","post","type-post","status-publish","format-standard","hentry","category-articles"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/paMHOZ-iN","jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/posts\/1165","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/users\/4287"}],"replies":[{"embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/comments?post=1165"}],"version-history":[{"count":0,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/posts\/1165\/revisions"}],"wp:attachment":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/media?parent=1165"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/categories?post=1165"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/tags?post=1165"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}