Richmond Journal of Law and Technology
Volume 19
|
Issue 3 Article 4
2013
Social Media Evidence in Government
Investigations and Criminal Proceedings: A
Frontier of New Legal Issues
Justin P. Murphy
Adrian Fontecilla
Follow this and additional works at: h8p://scholarship.richmond.edu/jolt
Part of the Evidence Commons, and the Internet Law Commons
7is Article is brought to you for free and open access by UR Scholarship Repository. It has been accepted for inclusion in Richmond Journal of Law
and Technology by an authorized administrator of UR Scholarship Repository. For more information, please contact
scholarshiprepository@richmond.edu.
Recommended Citation
Justin P. Murphy & Adrian Fontecilla, Social Media Evidence in Government Investigations and Criminal Proceedings: A Frontier of New
Legal Issues, 19 Rich. J.L. & Tech 11 (2013).
Available at: h8p://scholarship.richmond.edu/jolt/vol19/iss3/4
Richmond Journal of Law & Technology Volume XIX, Issue 3
1
SOCIAL MEDIA EVIDENCE IN GOVERNMENT INVESTIGATIONS
AND CRIMINAL PROCEEDINGS:
A FRONTIER OF NEW LEGAL ISSUES
By Justin P. Murphy and Adrian Fontecilla*
Cite as: Justin P. Murphy & Adrian Fontecilla, Social Media Evidence in
Government Investigations and Criminal Proceedings: A Frontier of New
Legal Issues, 19 RICH. J.L. & TECH 11 (2013), available at
http://jolt.richmond.edu/v19i3/article11.pdf.
I. INTRODUCTION
[1] As the newest pillar of communication in today’s society, social
media is revolutionizing how the world does business, discovers and
shares news, and instantly engages with friends and family. Not
surprisingly, because social media factors into the majority of cases in
some respect, this exploding medium significantly affects government
investigations and criminal litigation. Social media evidence includes,
among other things, photographs, status updates, a person’s location at a
certain time, and direct communications to or from a defendant’s social
media account. 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.
II. THE IMPORTANCE OF SOCIAL MEDIA
[2] Social media use is widespread. Ninety-one percent of today’s
online adults use social media regularly, which has become the number
Richmond Journal of Law & Technology Volume XIX, Issue 3
2
one activity on the web.
1
“People continue to spend more time on social
networks than any other category of [web]sites,” accounting for “20% of
their time spent on PCs and 30% of their mobile [use] time.”
2
Social
media use in the United States alone has increased by 356% since 2006.
3
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
Notably, some of the largest growth
in the last year has been among forty-five to fifty-four year old Americans,
* Justin P. Murphy is a counsel in Crowell & Moring’s Washington, D.C. office where he
practices in the firm’s White Collar & Regulatory Enforcement Group and E-Discovery
and Information Management Group. Adrian Fontecilla is an associate in Crowell &
Moring’s Washington, D.C. office where he practices in the firm’s Antitrust Group. Both
are contributors to Crowell & Moring’s E-Discovery Law Insights blog -
http://www.ediscoverylawinsights.com/.
1
EXPERIAN MARKETING SERVICES, THE 2012 DIGITAL MARKETER: BENCHMARK AND
TREND REPORT 79 (2012), available at http://www.experian.com/simmons-
research/register-2012-digital-marketer.html.
2
NIELSEN, STATE OF THE MEDIA: SOCIAL MEDIA REPORT 2012, at 4 (2012), available at
http://blog.nielsen.com/nielsenwire/social/2012/ (last visited Dec. 31, 2012).
3
Connect: Social Media Madness U.S. 2012, NETPOP RESEARCH (April 2012), available
at http://netpopresearch.com/social-media-madness.
4
Tom Webster, The Social Habit 2011, EDISON RESEARCH (May 29, 2011),
http://www.edisonresearch.com/home/archives/2011/05/the_social_habit_2011.php.
5
Aaron Smith, Laurie Segall & Stacy Cowley, Facebook Reaches One Billion Users,
CNN MONEY (Oct. 4, 2012, 9:50 AM),
http://money.cnn.com/2012/10/04/technology/facebook-billion-users/index.html.
6
Brian Honigman, 100 Fascinating Social Media Statistics and Figures From 2012,
HUFFINGTON POST (Nov. 11, 2012, 7:32 PM), http://www.huffingtonpost.com/brian-
honigman/100-fascinating-social-me_b_2185281.html.
Richmond Journal of Law & Technology Volume XIX, Issue 3
3
55% of whom now have a profile on a social networking site.
7
[3] There are hundreds of social networking websites with each
catering to a different demographic and providing a different type of
content.
8
Moreover, their users are constantly creating massive amounts
of data. “Twitter users send [one] billion tweets every two and a half
days,”
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
Social media users create more than just photos, videos, and tweets. They
share other information, such as their location as well. “As of 2012,
[seventeen] billion location-tagged posts and check-ins were logged.”
12
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
7
Erik Qualman, 10 New 2012 Social Media Stats = WOW!, SOCIALNOMICS,
http://www.socialnomics.net/2012/06/06/10-new-2012-social-media-stats-wow/ (last
visited Dec. 31, 2012).
8
See PINGDOM, SOCIAL NETWORK DEMOGRAPHICS IN 2012 (2012), available at
http://royal.pingdom.com/2012/08/21/report-social-network-demographics-in-2012/.
9
Nielsen and Twitter Establish Social TV Rating, NIELSEN (Dec. 17, 2012),
http://www.nielsen.com/us/en/insights/press-room/2012/nielsen-and-twitter-establish-
social-tv-rating.html.
10
Instagram Press Center, INSTAGRAM, http://instagram.com/press/ (last visited Feb. 1,
2013).
11
Josh James, How Much Data Is Created Every Minute?, DOMO (June 8, 2012),
http://www.domo.com/blog/2012/06/how-much-data-is-created-every-minute/.
12
Honigman, supra note 6.
Richmond Journal of Law & Technology Volume XIX, Issue 3
4
timetables.
13
[4] The information that social media providers make available is
staggering. When a phone company responds to a government subpoena
or search warrant, it may provide call or message logs. In contrast, when a
social media company like Facebook responds to a government subpoena,
it could provide the user’s profile, wall posts, photos that the user
uploaded, photos in which the user was tagged, a comprehensive list of the
user’s friends with their Facebook IDs, and a long table of login and IP
data.
14
In 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
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. McAfee was forced out of hiding when it was found that a
13
See Quagliarello v. Dewees, No. 09-4870, 2011 WL 3438090, at *2 (E.D. Pa. Aug. 4,
2011) (“As 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.”).
14
See, e.g., Carly Carioli, When the Cops Subpoena Your Facebook Information, Here’s
What Facebook Sends the Cops, 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).
15
Cf. MARCIA HOFMANN ET AL., ELEC. FRONTIER FOUND., 2012: WHEN THE
GOVERNMENT COMES KNOCKING, WHO HAS YOUR BACK? 7 (2012), available at
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).
Richmond Journal of Law & Technology Volume XIX, Issue 3
5
photo of him published on a blog was embedded with GPS metadata
pinpointing his exact location in Guatemala.
16
Not surprisingly, each
social media request can yield admissions or incriminating photos in
addition to other evidence.
17
III. ACCESSING PUBLICLY AVAILABLE SOCIAL MEDIA EVIDENCE
[5] It is no secret that government agencies mine social networking
websites for evidence. Even without having to seek a warrant from the
court or issue a subpoena, there are troves of social media evidence
publicly available.
18
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
Moreover, a
16
Eyder Peralta, Betrayed By Metadata: John McAfee Admits He’s Really in Guatemala,
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.
17
See, e.g., 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’s Facebook account).
18
See, e.g., U.S. DEP’T 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
http://www.dhs.gov/xlibrary/assets/privacy/privacy_pia_ops_publiclyavailablesocialmedi
a.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 Role
of Social Media in Law Enforcement Significant and Growing, 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).
19
Rocco Parascandola, NYPD Forms New Social Media Unit to Mine Facebook and
Twitter for Mayhem, NY DAILY NEWS (Aug. 10, 2011, 4:00 AM),
Richmond Journal of Law & Technology Volume XIX, Issue 3
6
majority of government agencies are active participants who contribute
content and solicit information through social media.
20
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.
[6] There are countless cases involving defendants who are arrested
because of information, photos, or admissions posted to social media sites.
For example, a defendant in Kentucky was jailed after he posted a photo
of himself siphoning gas from a police car onto Facebook.
21
Another
defendant broke into a Washington, D.C. home to steal a coat, a laptop,
and cash, subsequently using the victim’s laptop to post a picture of
himself wearing the stolen coat and holding up the stolen cash to the
victim’s Facebook page.
22
The photo was used later to secure a guilty plea
from the defendant.
23
While some sites allow users to control what
content the public can access, many users do not make use of such tools.
In fact, twenty five percent of Facebook users do not use any type of
http://www.nydailynews.com/new-york/nypd-forms-new-social-media-unit-facebook-
twitter-mayhem-article-1.945242.
20
New Study Shows 66% of Government Organizations Have Adopted Social
Networking, Collaboration Tools, SABA (Jan. 14, 2010),
http://www.saba.com/company/press-releases/2010/saba-and-hci-publish-study-of-social-
networking-in-government/.
21
See generally Eric Larson, 8 Dumb Criminals Caught Through Facebook, MASHABLE
(Dec. 12, 2012), http://mashable.com/2012/12/12/crime-social-media/.
22
Id.
23
Id.
Richmond Journal of Law & Technology Volume XIX, Issue 3
7
privacy controls.
24
[7] 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. To bypass the
need for a search warrant, government agents may pierce the privacy
settings of a person’s social media account by creating fake online
identities or by securing cooperating witnesses to grant them access to
information.
25
For example, in United States v. Meregildo, the defendant
adjusted the privacy settings on his Facebook account so that only his
Facebook “friends” could view his postings.
26
The government obtained
the incriminating evidence against the defendant through a cooperating
witness who happened to be Facebook “friends” with the defendant.
27
The
defendant moved to suppress the evidence seized from his Facebook
account, arguing that the government had violated his Fourth Amendment
rights.
28
The court found:
24
See Shea Bennett, Facebook, Twitter, Pinterest, Instagram – Social Media Statistics
and Facts 2012, ALL TWITTER (Nov. 1, 2012, 6:00 AM),
http://www.mediabistro.com/alltwitter/social-media-stats-2012_b30651.
25
See, e.g., 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, “which permitted [the government] to view
[the defendant’s] name and photo on his Facebook account”); United States v. Phillips,
Criminal No. 3:06–CR–47, 2009 WL 1918931, at *7 (N.D. W. Va. July 1, 2009) (noting
that the government “created an undercover user profile on www.myspace.com”).
26
United States v. Meregildo, No. 11 Cr. 576(WHP), 2012 WL 3264501, at *2 (S.D.N.Y.
Aug. 10, 2012).
27
Id.
28
Id. at *1.
Richmond Journal of Law & Technology Volume XIX, Issue 3
8
Where Facebook privacy settings allow viewership of
postings by “friends,” the Government may access them
through a cooperating witness who is a “friend” 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 “friends” would keep his profile
private. And the wider his circle of “friends,” the more
likely [the defendant’s] posts would be viewed by someone
he never expected to see them. [The Defendant’s]
legitimate expectation of privacy ended when he
disseminated posts to his “friends” because those “friends”
were free to use the information however they wanted—
including sharing it with the Government.
29
[8] 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
The criminal
complaint, which included a section titled “Defendants’ Social Media,”
provides a glimpse into the various ways that law enforcement uses social
media in its investigations.
31
The investigators used an “online covert
employee” 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
29
Id. at *2 (internal citations omitted).
30
Ryan Gallagher, Feds Monitor Facebook “Likes,” Infiltrate Skype Chats To Build
Terrorism Case, SLATE (Nov. 29, 2012, 4:33 PM),
http://mobile.slate.com/blogs/future_tense/2012/11/29/facebook_likes_skype_used_to_bu
ild_fbi_case_against_california_terrorism.html.
31
Complaint at ¶¶ 26-28, United States v. Kabir, No. ED12-0431M (C.D. Cal. Nov. 16,
2012), 2012 WL 6576560.
Richmond Journal of Law & Technology Volume XIX, Issue 3
9
content that each defendant “liked,” “shared,” or on which the defendant
commented.
32
[9] The Securities and Exchange Commission also recently issued a
Wells Notice for the first time based on a social media communication.
33
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, “Netflix monthly viewing
exceeded one billion hours for the first time ever in June [2012].”
34
After
receiving the notice, Hastings noted in a letter to shareholders that, “[W]e
think posting to over 200,000 people is very public, especially because
many of my subscribers are reporters and bloggers;” nevertheless, the SEC
has provided no formal guidance concerning the use of social media,
Regulation FD, and communications with the investing public.
35
IV. SOCIAL MEDIA COMPANIES, SUBPOENAS, AND WARRANTS
[10] 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.
32
Gallagher, supra note 30.
33
See 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
http://www.weil.com/files/upload/Weil_Alert_Sec_Lit_Enforcement_Dec_21_2012.pdf.
34
Id. at 2.
35
See Netflix CEO’s Facebook Post Triggered SEC Wells Notice, CNBC (Dec. 7, 2012,
7:10 AM),
http://www.cnbc.com/id/100289227/Netflix_CEO039s_Facebook_Post_Triggered_SEC_
Wells_Notice; GARCIA & CONROY, supra note 33, at 1.
Richmond Journal of Law & Technology Volume XIX, Issue 3
10
For example, Twitter “received more government requests” for user
information in the “first half of 2012 . . . than in the entirety of 2011.”
36
In
addition, approximately 80% of those requests were from authorities in the
United States.
37
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. Statistics
published by Google, which “primarily cover requests in criminal
matters,”
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
[11] 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. A recent survey of over 1,200 federal, state, and local law
enforcement professionals reveals that social media is widely used to
36
Twitter Transparency Report, TWITTER BLOG (July 2, 2012),
http://blog.twitter.com/2012/07/twitter-transparency-report.html.
37
Id.
38
Transparency Report—FAQ, GOOGLE,
http://www.google.com/transparencyreport/userdatarequests/faq/ (last visited Jan.15,
2013).
39
Transparency Report—User Data Requests, 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—User Data Requests, 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).
Richmond Journal of Law & Technology Volume XIX, Issue 3
11
assist in investigations, few learned how to use social media for
investigations through formal training, and “74% of those not currently
using it . . . intend to start using it.”
40
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
Social media evidence is the new frontier of criminal
proceedings and it raises unique legal challenges, including issues of
admissibility and a defendant’s constitutional rights in material that social
media companies maintain.
V. ACCOUNTING FOR THE STORED COMMUNICATIONS ACT
[12] Federal law provides that in some circumstances, the government
may compel social media companies to produce social media evidence
without a warrant. The Stored Communications Act (“SCA”) governs the
ability of governmental entities to compel service providers, such as
Twitter and Facebook, to produce content (e.g., posts and tweets) and non-
content customer records (e.g., name and address) in certain
40
Role of Social Media in Law Enforcement Significant and Growing, supra note 18.
41
See, e.g., 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’s Internet provider for his name and address); In re Grand Jury
Subpoena No. 11116275, 846 F. Supp. 2d 1, 2 (D.D.C. 2012) (denying anonymous
intervenor’s motion to quash a subpoena issued to Twitter by a federal grand jury for
records pertaining to the intervenor’s 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’s user information and Tweets).
Richmond Journal of Law & Technology Volume XIX, Issue 3
12
circumstances.
42
Passed in 1986, the SCA has not been amended to reflect
society’s heavy use of new technologies and electronic services, such as
social media, which have evolved since the SCA’s original enactment.
43
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
[13] The SCA provides that non-content records can be compelled
through a warrant or court order.
45
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
The government may obtain content that has been
in electronic storage for 180 days or less “only pursuant to a warrant.”
47
42
See United States v. Warshak, 631 F.3d 266, 282 (6th Cir. 2010) (citing 18 U.S.C. §§
2701-2711); see also 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 “have addressed whether social-networking sites fall within
the ambit of the statute”).
43
See Rudolph J. Burshnic, Note, Applying the Stored Communications Act to the Civil
Discovery of Social Networking Sites, 69 WASH. & LEE L. REV. 1259, 1261-64 (2012).
44
See, e.g., 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’s inbox, and sent
email was sufficient to satisfy the requirements of the Stored Communications Act);
Crispin, 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).
45
See 18 U.S.C. § 2703(c)(1)(a)-(b) (2006).
46
See Warshak, 631 F.3d at 283.
47
Id.
Richmond Journal of Law & Technology Volume XIX, Issue 3
13
“The 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 § 2703(d).”
48
[14] At least one Circuit Court of Appeals has called into question the
constitutionality of the SCA.
49
In United States v. Warshak, the Sixth
Circuit held that “the government agents violated the Fourth Amendment
when they obtained the contents of [defendant’s] e-mails” without a
warrant and added that, “to the extent that the SCA purports to permit the
government to obtain such e-mails warrantlessly, the SCA is
unconstitutional.”
50
The court reasoned that “[o]ver the last decade, e-
mail has become ‘so pervasive that some persons may consider [it] to be
[an] essential means or necessary instrument[] for self-expression, even
self-identification’” and that therefore, “e-mail requires strong protection
under the Fourth Amendment.”
51
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 “the fundamental similarities between e-mail and traditional forms
48
Id. (citation omitted). Since Warshak, most major providers state that they require a
search warrant to compel the stored contents of any account. See, e.g., Information for
Law Enforcement Authorities, FACEBOOK,
https://www.facebook.com/safety/groups/law/guidelines/ (last visited Jan. 2, 2012) (“A
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.”).
49
See Warshak, 631 F.3d at 288.
50
Id.
51
Id. at 286 (citations omitted).
Richmond Journal of Law & Technology Volume XIX, Issue 3
14
of communication, it would defy common sense to afford e-mails lesser
Fourth Amendment protection.”
52
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’s e-
mail messages without obtaining a warrant.
53
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.
VI. DEFINING A DEFENDANT’S CONSTITUTIONAL RIGHTS
REGARDING SOCIAL MEDIA EVIDENCE
[15] Courts have also started grappling with novel issues relating to the
constitutionality of the government’s use of information obtained from
social media companies in criminal proceedings.
54
For example, a New
York appellate court will soon issue an opinion regarding Twitter’s appeal
of two court orders in the prosecution of an Occupy Wall Street protestor
in People v. Harris.
55
The trial court held that the defendant lacked
standing to move to quash the government’s third-party subpoena to
52
Id. at 285-86.
53
See Noel Brinkerhoff, Congress, at Last Minute, Drops Requirement to Obtain
Warrant to Monitor Email, 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.
54
See Warshak, 631 F.3d at 288 (holding that warrantless seizure of emails from ISP
pursuant to SCA violated Fourth Amendment); see also Nathan Petrashek, Comment,
The Fourth Amendment and the Brave New World of Online Social Networking, 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).
55
As of the date of publication, the appeal had not been decided.
Richmond Journal of Law & Technology Volume XIX, Issue 3
15
Twitter for his account records and that the Fourth Amendment did not
protect his tweets.
56
The trial court similarly denied Twitter’s motion to
quash the government’s subpoenas for the defendant’s Twitter records for
the same reasons.
57
Although Twitter’s 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’s guilty plea in December
2012.
58
[16] Notably, the defendant was only able to move to quash the
subpoena because “Twitter’s policy is to notify users of requests for their
information prior to disclosure,”
59
a policy which is becoming more
common among social media companies.
60
Not only does Twitter notify
its users that the company has received a government-issued information
request for the user’s data, but it also protects its business by litigating
56
People v. Harris, 945 N.Y.S.2d 505, 510 (N.Y. Crim. Ct. 2012).
57
See 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). The court found in favor of the government for
all non-content information and content information from September 15, 2011, to
December 30, 2011. Content information less than 180 days old (tweeted on December
31, 2011) could only be disclosed pursuant to a search warrant.
58
See Russ Buettner, A Brooklyn Protester Pleads Guilty After His Twitter Posts Sink His
Case, N.Y. TIMES, Dec. 12, 2012, at A31, available at
http://www.nytimes.com/2012/12/13/nyregion/malcolm-harris-pleads-guilty-over-2011-
march.html.
59
Guidelines for Law Enforcement, TWITTER, http://support.twitter.com/entries/41949-
guidelines-for-law-enforcement#section9 (last visited Jan, 15, 2013).
60
See HOFMANN ET AL, supra note 15, at 8-9 (“Dropbox, 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.”).
Richmond Journal of Law & Technology Volume XIX, Issue 3
16
against such third-party government subpoenas.
61
[17] On appeal, Twitter argued that the defendant has standing to quash
the government’s subpoena because he has a proprietary interest in his
tweets, pointing to the express language of Twitter’s Terms of Service.
62
Moreover, Twitter claimed that the Fourth Amendment protects the
defendant’s tweets, primarily because the government concedes that the
defendant did not make public the tweets that it sought.
63
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’ non-public tweets would create “arbitrary line drawing.”
65
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
Notwithstanding Twitter’s pending appeal, Twitter
complied with a court order requiring it to promptly submit the
61
See Somini Sengupta, Twitter’s Free Speech Defender, N.Y. TIMES, Sept. 3, 2012, at
B1, available at http://www.nytimes.com/2012/09/03/technology/twitter-chief-lawyer-
alexander-macgillivray-defender-free-speech.html?pagewanted=all&_r=0.
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’s Terms of Service
state, “You retain your rights to any Content you submit, post or display on or through
the Services” (internal citation omitted)).
63
See id. at *16, 19.
64
See id. at *18-19 (citing United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010)).
65
See id. at *20-21.
66
See id. 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)).
Richmond Journal of Law & Technology Volume XIX, Issue 3
17
defendant’s tweets under seal.
67
[18] The line-drawing concerns that Twitter expressed in its People v.
Harris brief, that a defendant’s 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, a case in which the court held that “[w]here
Facebook privacy settings allow viewership of postings by ‘friends,’ the
Government may access them through a cooperating witness who is a
‘friend’ without violating the Fourth Amendment.”
68
[19] Some courts have concluded that individuals have “a reasonable
expectation of privacy to [their] private Facebook information and
messages.”
69
Those courts, while recognizing the importance of properly
understanding how Facebook works, distinguished between “private
messaging” and posts to a user’s Facebook wall.
70
Using privacy setting
distinctions to determine social media users’ constitutional rights may
result in arbitrary line drawing that might evaporate as social media
67
Doug Austin, Twitter Turns Over Tweets in 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.
68
United States v. Meregildo, No. 11 Cr. 576(WHP), 2012 WL 3264501, at *2 (S.D.N.Y.
Aug. 10, 2012).
69
See, e.g., 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 Crispin v. Christian Audigier, Inc., 717 F. Supp.
2d 965, 991 (C.D. Cal. 2010) (holding that “webmail and private messaging [are] . . .
inherently private”).
70
Minnewaska Area Sch. Dist. No. 2149, 2012 WL 3870868, at *11; Crispin, 717 F.
Supp. 2d at 991.
Richmond Journal of Law & Technology Volume XIX, Issue 3
18
evolves. Indeed, with Facebook’s customizable and post-specific privacy
settings, a person who shares a message by posting it on another user’s
wall can actually make it as private as information shared via a Facebook
message.
71
[20] 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
Ultimately, because an expectation of privacy
under the Fourth Amendment is partly a function of whether “society [is]
willing to recognize that expectation as reasonable,” social media’s rapid
proliferation through today’s society may influence the privacy protections
afforded to social media evidence in the future.
73
VII. DEFENDING A CRIMINAL CASE WITH SOCIAL MEDIA EVIDENCE
[21] Defendants face more significant obstacles than the government
when seeking exculpatory evidence from social media companies.
74
First,
71
See Timeline Privacy, FACEBOOK,
http://www.facebook.com/help/393920637330807/#!/help/393920637330807/ (last
visited Jan. 20, 2013).
72
See In re 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).
73
See United States v. Warshak, 631 F.3d 266, 284-85 (6th Cir. 2010) (“[T]he Fourth
Amendment must keep pace with the inexorable march of technological progress, or its
guarantees will wither and perish.”).
74
See Daniel K. Gelb, Defending a Criminal Case from the Ground to the Cloud, 27
CRIM. JUST. 28, 29 (2012).
Richmond Journal of Law & Technology Volume XIX, Issue 3
19
defendants and their counsel do not share the government’s 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
Ethics opinions issued to lawyers in various states have
established that a defendant’s lawyer may not “friend” or direct a third
person to “friend” another party or witness in litigation in order to search
for impeachment material or exculpatory evidence.
76
[22] Second, defendants face additional hurdles when seeking to issue a
third party subpoena.
77
Defendants may seek to subpoena social media
companies for user information regarding the victim, the complaining
witness, or another witness.
78
In those instances, in federal criminal
proceedings, defendants must pursue such non-party discovery pursuant to
75
See Zach Winnick, Social Media an Ethical Minefield for Attorneys, 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’s use of social
networking sites in connection with litigation that are generally not shared by government
authorities in investigations).
76
See, e.g., PHILA. BAR ASS’N PROF’L GUIDANCE COMM., Op. 2009-02, at 1-3 (2009),
available at 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
“deceptive” and in violation of ethical rules); N.Y. STATE BAR ASS’N, COMM. ON PROF’L
ETHICS, Op. 843, at 2 (2010), available at 2010 WL 3961381 (noting that accessing
publicly available social media evidence is permissible but ‘friending” another party to
do so is not); SAN DIEGO CNTY. BAR LEGAL ETHICS COMM., Op. 2011-02 (2011),
available at 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 ‘deceptive’
friend requests of unrepresented witnesses).
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’s
case-in-chief. See Warshak, 631 F.3d at 327 (citing FED. R. CRIM. P. 16).
78
See FED. R. CRIM. P. 17(c)(1).
Richmond Journal of Law & Technology Volume XIX, Issue 3
20
Federal Rule of Criminal Procedure 17 and seek a court order allowing
such a subpoena.
79
Among other hurdles in seeking such an order, the
court may find that the evidence maintained by a social media website is
“private,” 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
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’s motion seeking permission to subpoena Facebook and Twitter
for the records of Trayvon Martin’s social media accounts in addition to
Mr. Martin’s girlfriend’s Twitter account.
81
Notwithstanding the order,
Facebook and Twitter may challenge the subpoenas as Twitter so did in
People v. Harris.
[23] Despite these challenges, criminal defendants may attempt to use
novel methods of obtaining exculpatory social media evidence. For
example, under Brady v. Maryland or Giglio v. United States, one may
obtain a law enforcement officer’s social media account records.
82
Moreover, courts may order jurors, witnesses, or third parties to produce
or manipulate their social media information in unique and unprecedented
79
See FED. R. CRIM. P. 17(a), (c)(3).
80
See 18 U.S.C. § 2703(a), (c) (2006).
81
Erin Fuchs, A Jury Will Likely Scrutinize Trayvon Martin’s Deleted Facebook and
Twitter Accounts, BUSINESS INSIDER (Oct.19, 2012, 2:56 PM),
http://www.businessinsider.com/zimmerman-can-subpoena-social-media-2012-10.
82
See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that “the suppression by the
prosecution of evidence favorable to an accused upon request violates due process where
the evidence is material”); Giglio v. United States, 405 U.S. 150, 153-54 (1972) (“When
the ‘reliability of a given witness may well be determinative of guilt or innocence,’
nondisclosure of evidence affecting credibility falls within this general rule [under
Brady].” (citation omitted)) .
Richmond Journal of Law & Technology Volume XIX, Issue 3
21
ways. For example, courts have: (1) ordered a juror to “execute a consent
form sufficient to satisfy the exception” in the SCA to allow Facebook to
produce the juror’s 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 “friend” the judge on Facebook in order
to facilitate an in camera review of Facebook photos and comments;
85
and
(4) ordered parties to exchange social media account user names and
passwords.
86
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.
VIII. ADMISSIBILITY OF SOCIAL MEDIA EVIDENCE
[24] Social media is subject to the same rules of evidence 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
83
Juror No. One v. Cal., No. CIV. 2:11397 WBS JFM, 2011 WL 567356, at *1 (E.D.
Cal. Feb. 14, 2011).
84
Katiroll Co. v. Kati Roll & Platters, Inc., Civil Action No. 10 3620 (GEB), 2011 WL
3583408, at *4 (D.N.J. Aug. 3, 2011).
85
Barnes v. CUS Nashville, LLC, No. 3:09cv00764, 2010 WL 2265668, at *1 (M.D.
Tenn. June 3, 2010).
86
See, e.g., 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, Inc., 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 “read-only access”).
Richmond Journal of Law & Technology Volume XIX, Issue 3
22
evidence.
87
The challenges surrounding social media evidence demand
that one consider admissibility when social media is preserved, collected,
and produced. 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. 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.
[25] Notably, these same challenges face the government who must also
consider the admissibility of social media when they conduct their
investigation. In United States v. Stirling, the government seized the
defendant’s computer pursuant to a search warrant and provided the
defendant with a forensic copy of the hard drive.
88
The government also
performed a forensic examination of the hard drive and extracted 214
pages of Skype chats downloaded from the defendant’s computer, which
were not “readily available by opening the folders appearing on the hard
drive,” but did not provide this information to the defense until the
morning of its expert’s testimony near the end of trial.
89
The logs “had a
87
See, e.g., Griffin v. State, 19 A.3d 415, 424 (Md. 2011) (recognizing “[t]he potential
for abuse and manipulation of a social networking site by someone other than its
purported creator”).
88
United States v. Stirling, No. 1:11-cr-20792-CMA, at 2 (S.D. Fla. June 5, 2012),
available at 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, 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/.
89
Id. at 2.
Richmond Journal of Law & Technology Volume XIX, Issue 3
23
devastating impact” on the defendant because they contradicted many of
his statements made during his testimony and he was convicted.
90
In a
short but stinging opinion ordering a new trial, the court found:
[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. 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. 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
[26] 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. 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
In Tienda v. State,
90
Id.
91
Id. at 4-5.
92
See, e.g., People v. Lesser, No. H034189, 2011 WL 193460, at *4, *6 (Cal. Ct. App.
Jan. 21, 2011) (finding officer’s 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’s MySpace page, which the prosecution's
Richmond Journal of Law & Technology Volume XIX, Issue 3
24
the appellant was convicted of murder based in part on evidence that the
prosecutors obtained after subpoenaing MySpace.
93
Specifically, “the
State was permitted to admit into evidence the names and account
information associated with [the defendant’s 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.”
94
The
Court of Criminal Appeals affirmed the trial judge’s decision and
concluded that the MySpace profile exhibits used at trial were admissible
because they were a sufficient “indicia of authenticity” that “the exhibits
were what they purported to be—MySpace pages for which the appellant
was responsible for” the content.
95
[27] In another recent case, a defendant was convicted of aggravated
assault following a domestic dispute with his girlfriend.
96
At trial, the
prosecution introduced Facebook messages sent from the defendant’s
account in which he indicated that he regretted striking his girlfriend and
asked for her forgiveness.
97
The defendant denied sending the Facebook
messages and argued that both he and his girlfriend had access to each
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).
93
Tienda v. State, 358 S.W.3d 633, 634-35 (Tex. Crim. App. 2012).
94
Id. at 635.
95
Id. at 647.
96
Campbell v. Texas, 382 S.W.3d 545, 546 (Tex. App. 2012).
97
Id. at 551.
Richmond Journal of Law & Technology Volume XIX, Issue 3
25
other’s Facebook accounts.
98
On appeal, the court, acknowledging that
“electronic communications are susceptible to fabrication and
manipulation,” affirmed the trial court’s ruling that allowed the state to
authenticate the messages through circumstantial evidence, most notably
that they were sent from the defendant’s account and that the girlfriend
testified that she did not send the messages.
99
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
[28] 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.
IX. JURIES AND SOCIAL MEDIA
[29] Admissibility is just one challenge that the Internet and social
media pose at trial. Another difficult issue relates to what information
may be gathered about prospective jurors. At least one bar association has
determined that attorneys may use social media websites to conduct juror
98
Id.
99
Id. at 549-50, 552.
100
United States v. Drummond, No. 1:09-cr-00159, 2010 WL 1329059, at *2-3 (M.D. Pa.
Mar. 29, 2010). The defendant ultimately entered a guilty plea, and the court did not
make a final ruling on the admissibility of the photographs. Plea Agreement, Drummond,
No. 1:09-cr-00159, 2010 WL7367722 (M.D. Pa. Nov. 29, 2010).
Richmond Journal of Law & Technology Volume XIX, Issue 3
26
research as long as no communication occurs between the lawyer and the
juror as a result of the research.
101
However, attorneys may not research
jurors if that research results in the juror receiving a communication.
102
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’s ability to use social media as an
investigative tool discussed supra, an attorney cannot use deception to
gain access to a juror’s website or to obtain information.
103
[30] One of the most recent and challenging social media trends relates
to jurors using wireless communication devices to look up a defendant’s
criminal record, conduct their own investigation into a case, post their
opinions about the case on social media websites, or attempt to “friend”
parties, lawyers, witnesses, or judges. In some instances, this conduct has
resulted in mistrials and overturned convictions.
104
In other instances,
101
See N.Y. STATE BAR ASS’N COMM. ON PROF’L ETHICS, Formal Op. 2012-2, at 5
(2012) available at 2012 WL 2304271; see also N.Y. CNTY. LAWYERS’ ASS’N COMM. ON
PROF’L ETHICS, Formal Op. 743 (2011), available at
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).
102
N.Y. STATE BAR ASS’N COMM. ON PROF’L ETHICS, Formal Op. 2012-2, supra 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).
103
Id. at 6-7.
104
See Dimas-Martinez v. State, 385 S.W.3d 238, 246, 247, 249 (Ark. 2011) (reversing
appellant’s murder conviction and calling for a new trial when a juror tweeted several
times during court proceedings, writing in one tweet, “Choices to be made. Hearts to be
Richmond Journal of Law & Technology Volume XIX, Issue 3
27
such conduct has caused courts to conduct lengthy hearings to determine
the impact of the juror’s actions. For example, in Sluss v. Commonwealth,
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 “friended” the victim’s mother through Facebook.
105
The
Supreme Court of Kentucky, noting that being a “friend” on Facebook was
not enough by itself to prove bias for disqualification as those
“friendships” 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
Finally, the inappropriate use of social media has led to stiff
penalties for both jurors and attorneys.
107
broken. We each define the great line,” and later tweeting “Its [sic] over” before the jury
announced its verdict).
105
Sluss, 381 S.W.3d at 220-22.
106
Id. at 223, 228-29; see also U.S. v. Ganias, Crim No. 3:08CR224(EBB), 2011 WL
4738684, (D. Conn. Oct. 5, 2011). In Ganias, the defendant filed a motion for a new trial
on the eve of sentencing based on alleged juror improprieties. Id. at *1. The juror
posted a variety of comments on the Facebook page, ranging from “Jury duty 2morrow. I
may get to hang someone ... can't wait ...” before the presentation of the evidence, to
“Guinness for lunch break. Jury duty ok today” during the three-week trial. Id. at *2.
On the day of the verdict he posted “Guilty :),” and he also added a fellow juror as one of
his Facebook friends. Id. Taken together, the defendant argued that the comments
showed his Sixth Amendment rights were offended due to a biased juror. Id. at *1.
When questioned, the juror assured the judge that he was merely “joking,” and that he
“absolutely was an impartial and fair juror.” U.S. v. Ganias, Crim No. 3:08-CR-00224-
EBB, 2011 WL 4738684, *3 (D. Conn. Oct. 5, 2011). The court found those statements
presumptively honest, and denied the defendant’s motion. See id. at *4.
107
See John Barry, Hillsborough Judge Vows to Send Prospective Juror to Jail, TAMPA
BAY TIMES, Oct. 11, 2012, available at
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
Richmond Journal of Law & Technology Volume XIX, Issue 3
28
[31] Both legislatures and courts have attempted to respond to these
trends. For example, California adopted a new statute clarifying that
jurors may not use social media and the Internet, such as 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
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
The model
instructions state:
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,
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, HERALD-TRIBUNE, Feb. 16, 2012,
available at 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 “Score…I got dismissed!! apparently they
frown upon sending a friend request to the defendant…haha,” on Facebook after his
dismissal from the jury); David Ovalle, Lawyer’s Facebook Photo Causes Mistrial in
Miami-Dade Murder Case, MIAMI HERALD, Sept. 13, 2012, available at
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’s leopard-print underwear on Facebook, which also
led to the attorney’s firing).
108
See 2011 Cal. Stat. 181.
109
See Revised Jury Instructions Hope to Deter Juror Use of Social Media During Trial,
UNITED STATES COURTS (Aug. 21, 2012), http://news.uscourts.gov/revised-jury-
instructions-hope-deter-juror-use-social-media-during-trial.
Richmond Journal of Law & Technology Volume XIX, Issue 3
29
or on Twitter, through any blog or website, including
Facebook, Google+, My Space, LinkedIn, or YouTube.
You may not use any similar technology of social media,
even if I have not specifically mentioned it here.
110
[32] The chair of the Conference Committee who provided the updated
rules stressed that:
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. Jurors
should be told why refraining from use of social media
promotes a fair trial. Finally, jurors should know the
consequences of violations during trial, such as mistrial and
wasted time. Those recommendations are now part of the
guidelines.
111
X. CONCLUSION
[33] Social media evidence is undeniably a critical new frontier of
government investigations and criminal proceedings. 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,
110
JUDICIAL CONF. COMM. ON COURT ADMIN. & CASE MGMT., PROPOSED MODEL JURY
INSTRUCTIONS: THE USE OF ELECTRONIC TECHNOLOGY TO CONDUCT RESEARCH ON OR
COMMUNICATE ABOUT A CASE 1 (2012), available at
http://www.uscourts.gov/uscourts/News/2012/jury-instructions.pdf.
111
UNITED STATES COURTS, supra note 109.
Richmond Journal of Law & Technology Volume XIX, Issue 3
30
and rules of evidence. Despite this uncertainty, one thing is clear. 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.
