Facebook Posts Can Land You In Jail!

Did you know that a single Facebook post can land you in jail?  Its true, an acting judge in Westchester NY recently ruled that a ‘tag’ notification on Facebook violated  a protective order.  The result of the violation; second-degree contempt, which can lead to punishment of up to a year in jail.   In January, the a judge issued a  restraining order against Maria Gonzalez, prohibiting her from communicating with her former sister-in-law, Maribel Calderon.  Restraining orders are issued to prevent person from making contact with protected individuals.  Traditionally, courts interpreted contact to mean direct communications in person, mail, email, phone, voicemail or even text.   Facebook tags, however, present a slightly different form of contact.

Unlike Facebook messages, tagging someone identifies the tagged person on the poster’s Facebook page.  The tag, however, has the concurrent effect of linking to the identified person’s profile; thereby notifying them of the post.  Ms. Gonzalez tagged Calderon in a post on her (Gonzalez’s) timeline calling Calderon stupid and writing “you have a sad family.”  Gonzalez argued the post did not violate the protective order since there was no contact aimed directly at Calderon.  Acting Westchester (NY) County Supreme Court Justice Susan Capeci felt otherwise writing a restraining order includes “contacting the protected party by electronic or other means.”  Other means, it seems, is through personal posts put out on social media.

And Social Media posts aren’t just evidence of orders of protection violations, they are also grounds for supporting the issuance of restraining orders.  In 2013, a court granted an order of protection for actress Ashley Tinsdale against an alleged stalker.  Tinsdale’s lawyers presented evidence of over 19,000 tweets that the alleged stalker posted about the actress (an average of 100 tweets per day).

The bottom line:  Naming another on a social media post, even one that is directed to the twittersphere or Facebook community, rather than toward a particular individual,  is sufficient contact for purposes of supporting restraining orders or violations thereof.   We should all keep our posts positives –even more so if we have been told to stay away!!!

“There Oughta be a Law”

In February 2015, two young men dared  Parker Drake to jump into a frigid ocean for virtual entertainment. Parker, who doctors diagnosed as having autism spectrum disorder, first “met” the men through twitter. After several exchanges the young men took Parker to the ocean, “for laughs” dared him to jump in and then videotaped Parker’s struggle to return to shore.  The men published the video on Facebook, you could hear them laugh as Parker battled the waves.

Upon discovering the tape, Manasquan, NJ Municipal Court officials charged the men with “endangering the welfare of an incompetent person.”  The problem, however, is that because 19 year old Parker voluntarily jumped into the ocean, the men had not, in fact, committed a crime.

The case is another example of a moral wrong failing to translate into a legal wrong.  Sadly, laws do not exist to punish those who use social media for bullying; just consider the events that prompted Tyler Clementi to jump off the George Washington Bridge.  With this unfortunate event, Parker’s mother joins the rank of parents who fail to see justice in the courts for reprehensible harms committed against their children.

The response to the Parker Drake event, much like the response to many  social media wrongs for which the criminal law offers no retribution, is both outrage and frustration.   Parker’s mother is seeking justice in the civil courts.  The politicians have weighed in too.  Just last week several New Jersey lawmakers announced their intention to draft a law aimed atpunishing individuals who victimized disabled persons.

The law is not well suited for punishment of harms like the one that happened to Parker.  Our Constitution often stands as a roadblock between justice for social media wrongs and the right to voice opinions and ideas.  First Amendment concerns prevent punishing many types of speech, particularly outside of the classroom.   And then there are issues of “void for vagueness.”  A law that punishes those who exploit the developmentally disabled leaves open to interpretation what constitutes “exploitation.” (and I suspect defendants charged in a crime such as this might try to escape punishment by challenging whether his or her “victim” was developmentally disabled.”)

I am interested in seeing the legislation New Jersey law makers propose.  My hope is that they can walk the fine line between justice and free speech.  The lawyer in me, however, suspects that the bill will never make it to the Governor’s desk; as we have seen too many times before, regulating social media bullying in the courts is a nearly impossible task.




Does Social Media Replace the Need to Think? Has it Caused Our Critical Thinking Skills to Shrink?

 As we all know, through social media, information disseminates with lightning speed.  Instantly, millions are up to date and provided conclusions to a variety of stories and issues. Users simply acquire, retain, and click (i.e., re-tweet, like or dislike), easy-peasy- free of thought.  Is this troubling?  Robert Frost once said “Thinking isn’t agreeing or disagreeing.  That’s voting.”

Accordingly, if a re-tweet is nothing more than a vote for the product of the analysis of others , and if clicking Facebook’s “like” button simply allows over 1 billion users to avoid intellectual expression all together, are we setting a trend abandoning 2500 years of trans-disciplinary critical thinking?  Is this dangerous to future generations?  Is this a good trend, beneficial perhaps?  Is it worrisome that social media allows so many to routinely supplant active argumentation? 

In 1987, the National Council for Excellence in Critical Thinking defined critical thinking as “the intellectually disciplined process of actively and skillfully conceptualizing, applying, analyzing, synthesizing, and/or evaluating information gathered from, or generated by, observation, experience, reflection, reasoning, or communication, as a guide to belief and action.  In its exemplary form, it is based on universal intellectual values that transcend subject matter divisions: clarity, accuracy, precision, consistency, relevance, sound evidence, good reasons, depth, breadth, and fairness.   Critical thinking can be seen as having two components: 1) a set of information and belief generating and processing skills, and 2) the habit, based on intellectual commitment, of using those skills to guide behavior.”

Thinking is thus to be contrasted with:  the mere acquisition and retention of information alone, because it involves a particular way in which information is sought and treated.  If this is true, it means that the net intellectual engagement in context- for millions of social media users- amounts to nothing more than a preferential re-tweet, and/or clicking “like”/“dislike,” with a smile. 

But with only so many users, social media remains a form of entertainment.  One may argue: Relax!  It’s fun.  There are plenty of people left who still read and think!  Okay, but what happens when 5 or 6 billion people become devoted users?  How much fun would that look like?  Perhaps it is just evolution?

  Could it be that “thinking” is simply a natural process that will adapt to social media and evolve accordingly, in a beneficial way?  Perhaps an active mode of thinking- where the thinker consciously separates facts from opinions and challenges assumptions- is becoming outdated? 

Social Media Companies and Subpoena’s

Given the digital goldmine of potential evidence available from social media websites, it is not surprising that they are increasingly targeted by search warrants and government subpoenas in criminal matters.

I recently had a conversation with an Assistant District Attorney that stated when they subpoena digital records from social media websites like Facebook, and Twitter, those social media companies disclose to the user that a subpoena has been ordered to release specific information from the website. As the ADA stated, “this makes it extremely difficult to investigate a person’s social media activity during an on-going investigation.” Further, when a subpoena is issued, the ADA already has creditable evidence to move forward with a subpoena to proceed with the investigation. The ADA is not issuing subpoena’s to invade the privacy of an individual’s innocent conduct.

This new policy from social media companies comes in the wake of the NSA surveillance scandal. Just last month, Eric Snowden appeared via videoconference at the South by Southwest technology conference, urging companies to increase their security and protect their users from government intrusion. Snowden wants the technology industry to get serious about protecting the privacy of its users and customers. Since the NSA scandal, social media companies have implemented new privacy policies that have made it difficult for investigators to subpoena records. This has changed the way social media companies cooperate with government officials.

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 circumstances. The SCA, which was passed in 1986, 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. As a result, courts have been left to determine how and whether the SCA applies to the varying features of different social media services.

Facebook has posted in a Help page article titled “May I obtain contents of a user’s account from Facebook using a civil subpoena? The article cites the Stored Communications Act as the reason that “Federal law prohibits Facebook from disclosing user content…in response to a civil subpoena,” stating unequivocally:

“Federal law prohibits Facebook from disclosing user content (such as messages, timeline posts, photos, etc.) in response to a civil subpoena. Specifically, the Stored Communications Act, 18 U.S.C. § 2701 et seq., prohibits Facebook from disclosing the contents of an account to any non-governmental entity pursuant to a subpoena or court order.”

In response to Facebook’s interpretation of SCA, a federal district court judge has held that certain elements (e.g., private messages) of a user’s Facebook or MySpace profile were protected from being subpoenaed under the Stored Communications Act by analogizing them to a type of electronic message (Bulletin Board System–BBS) that was mentioned in the Stored Communications Act. Crispin v. Audigier, 717 F.Supp.2d 965 (2010, C.D. CA).  The court quashed the defendant’s subpoenas to Facebook and MySpace requesting private messages from the plaintiff’s account.

As to the subpoenas seeking Facebook wall postings and MySpace comments, the Crispin court remanded the matter so a fuller evidentiary record regarding plaintiff’s privacy settings so it could be determined before deciding whether to quash the subpoena for that content. This implies that Facebook does not get to decide where the “privacy” bar should be set in determining whether social networking postings and comments are subject to a subpoena as Facebook’s Help pages would lead us to believe—only the court gets to decide that.

Perhaps this is why companies like Facebook have implemented a disclosure rule that notifies the user when a warrant or subpoena has been issued and requests the users site based content.

Are social media companies doing the right thing by notifying users when records are subpoenaed? Thoughts?

Social Media: Brand Builder or Mind Poison?

A recent interview on ESPN’s radio show Mike & Mike (you can find an article and podcast here) featured two prominent NCAA basketball coaches, John Calipari and Rick Pitino. On paper, these two coaches couldn’t be similar; age (only 6 years apart), coaches at powerhouse basketball schools (University of Kentucky and Louisville separated by only 75 miles), banners (three championships and 11 Final Four appearances between the two, although two of Calipari’s appearances have since been vacated) and the list could go on. While their knowledge and love for the game of basketball may be similar, their view on social media is vastly different.

Pitino referred to social media as a “poison” on his players and he bans them from using sites like Twitter while Calipari refers to social media as a brand builder and goes as far as to encourage his players to participate and use social media platforms. These opposite stances on social media couldn’t be a better illustration of why there is so much debate when it comes to the NCAA and its regulation of social media. You have some coaches prohibiting players from using social media and others promoting the use and regardless of the stance of its coaches, the schools continue to shell out the dough to monitor its players use of social media. If that isn’t a clear example of mixed signals then I don’t know what is.

Many schools, like UK and Louisville, spend tens of thousands of dollars to use monitoring software systems that flag certain keywords and content being used in a post or tweet. The athletes actually must agree to let the school monitor its social media use as a precondition to participate in their respective sports. Some legal scholars view this as a clear violation to the athletes’ First Amendment right to free speech and those views have gained traction as some states have prohibited schools from monitoring the social media accounts of its athletes. The NCAA has encouraged schools to monitor its student athletes on social media sites and in response we have state legislatures passing laws to ban the schools from doing so; another example of how far off we are from some type of amicable resolution.

People are entitled to their own opinions about social media, but we run into problems when those differing opinions lead to ambiguous regulations and policies. It’s hard to say which side has the better argument or if monitoring student-athlete social media accounts is warranted in the first place, but it’s clear that this issue is far from being resolved.

“Happy Valentines Day :)”

There can be no doubt that social media has changed our society; changed the way we communicate, the way we obtain information, and, even now, the way we advocate. Social media has developed from a communication tool to a public forum  that individuals use to judge one another.

In the recent weeks the National Football League (NFL) has been put under the lens of the social media microscope. First, Michael Sam, a highly decorated collegiate football player, declared that he was a homosexual male. Once drafted, this will mark the first time in the league’s history that a player who is openly homosexual will play the game. Although many athletes have declared their sexuality once they retired, no player had previous declared such sexuality while playing the game. Of course, Sam’s declaration was thrown into the social media fire. His courage, strength, and self-confidence was met with overwhelming support as athletes from various profession sports chimed in on the topic. Players from various NFL locker rooms took to Twitter and Facebook to support Sam and his journey to the NFL. In the eyes of the public, the NFL gained even more repute than it had previously.

Today, however, the NFL and some of its more notorious players have been summoned to the court of social justice located in the realm of social media. This morning, Ted Wells, an NFL investigator, released a 144 page report documenting instances of hazing, racial slurs, and other degrading behavior performed by Richie Incognito and other Miami Dolphin’s players. This controversy began in October 2013 when Incognito’s teammate Jonathan Martin quit profession football and was hospitalized for mental health. The NFL swiftly jumped in and hired Wells to conduct an investigation.

In reaction to this incident, many took to social media. Some individuals, including NFL players and analysts, believed that Martin was over reacting and should have confronted Incognito. Others rallied behind Martin and deemed Incognito a bully. But no matter what most people believed, expectations changed with the release of the 144 page report. On Espn’s NFL Insiders, airing 3pm Eastern Time, tweets were read indicating the shock of most at the findings. One individual, who was skeptic that Martin’s allegations had merit, admitted that their perspective had changed.

In the shadow of this controversy is Incognito’s tweet from Wednesday stating, “The truth is going to bury you and your entire ‘camp’”. Incognito took to twitter again today after the report had been released, “Pleeeeease Stop The Hate. Happy Valentines Day :)”.

In a controversy as notorious as this, involving a league as acclaimed as the NFL, all eyes are now fixed upon Roger Goodell and other NFL officials. In today’s society, social media has become the quintessential courtroom and all of us, the jury. We obtain information from social media and use it to make “informed decisions.” Then, we use it to either condemn or exonerate those in the spotlight. Social media, whether we like it or not, has become a mechanism for impacting societal justice. This trend will only grow in the future and attorneys should be ready for trial by Twitter.

For more information see ESPN’s web article entitled “Incognito, others tormented Martin”.



By Dana Halber

Courtney Love, the grunge rock queen, spent eight days in court at the end of last month standing trial for “Twibel,” the commonplace term for “Twitter libel.” Twibel is the act of defaming another individual through a 140-character Twitter “tweet.”  Love’s former attorney, Rhonda J. Holmes, sued Love for the publication of a reputation damaging Tweet, which implied that Holmes had been “bought off” as the reason for Holmes no longer acting as Love’s attorney.[1]  Love argued that the mass dissemination of the tweet was inadvertent, as she only intended to send it two people, and once she realized it had been published to her 220,000 plus Twitter followers, she deleted the tweet.[2]  Even more legally significant, Love claimed she believed the statement to be true at the time she sent the tweet, demonstrating that Love lacked the “knowingly false or doubting the truth” of the statement requisite to find her guilty of libel.[3]  Ultimately, Love prevailed when the jury determined that she was not liable for defamation.


However, did the jury reach the right verdict?  Although the Los Angeles Superior Court Judge made a precedential decision in holding 140-character or less tweets in California to the same standard as an article written for the Los Angeles Times, the jury clearly was not as strict.  Their leniency can be especially dangerous in establishing precedent in this particular case as Love is a repeat tweet offender.

Venting her frustrations over social media seems to be Love’s pattern of behavior, and the reason she is involved in another pending defamation lawsuit brought by fashion designer Dawn Simorangkir for damaging comments Love made about her on Pinterest and the Howard Stern radio show.[4]  How will Love learn to temper her tweets if she’s only sharing her “opinion”, however damaging it may be, and escaping liability? And, furthermore, what message does the result of Love’s twibel trial send to the American public?  Perhaps it’s time to reevaluate our defamation law in conjunction with social media…


Meanwhile, at roughly the same time Love stood trial, on the other side of the world, Benny Handoko, an Indonesian Twitter user was found guilty of defamation for libelous comments made about an Indonesian politician via Twitter.[5]  Handoko became popular on Twitter after publishing statements in which he referred to former Prosperous Justice Party member Mukhamad Misbakhun as a crook who played a vital role in Indonesia’s Central Bank bailout scandal in 2008.[6]  Handoko was sentenced to one year probation for online defamation in violation of articles 27 and 45 of the Electronic Information and Transaction (ITE) Law, which provides that “anyone found guilty of using electronic media, including social networks, to intimidate or defame others could be liable to six years in prison and a fine” that can amount up to approximately $105,000 U.S.D.[7]  Handoko, refused to apologize for his statements, believing them to be true, as he based them on media reports.[8]  Accessable.


[1] Eriq Gardner, Courtney Love Wins Twitter Defamation Trial, The Hollywood Reporter (Jan, 24, 2014, 5:03 PM), http://www.hollywoodreporter.com/thr-esq/courtney-love-wins-twitter-defamation-673972.

[2] Id.

[3] Id.

[4] Id.

[5] Mong Palatino, How One Twitter Defamation Case Casts a Shadow on Media in Indonesia, Mediashift (Feb. 11, 2014), http://www.pbs.org/mediashift/2014/02/indonesia-twitter-defamation-case-casts-shadow-on-media-landscape/.

[6] Id.

[7] TechLoy Reporter, Indonesian reporter convicted of libel of Twitter, protest surges over draconian internet law, TechLoy (Feb. 4, 2014), http://techloy.com/2014/02/05/indonesian-man-convicted-libel-twitter-protest-surges-draconian-internet-law/.

[8] Palatino, id.

Juror Tweets Updates During the Trial… Thoughts?

A juror tweets informational updates about a trial she is serving on. The updates are considered public information that the press and media may report and is not confidential. Her tweets do not state her opinion or a conclusion about the case. After day 3 of the trial, the defense attorney becomes aware of the tweets. At this point in the trial, the prosecution has rested its case. The judge has also instructed the jury at the beginning of the trial to not blog, Google, Tweet or Facebook post anything about the trial. Does the defense attorney have an ethical obligation to alert the court and the prosecutor?

As for an attorney’s ethical obligation to reveal such information, the Model Rules of Professional Conduct have not kept pace with technological advancements. Further, these rules may be unclear as to when an attorney must report a juror to the court. Take a look at Model Rule of Professional Conduct 3.3 Candor Toward The Tribunal, which “requires a lawyer to take reasonable remedial measures, including disclosure if necessary, whenever the lawyer knows that a person… intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding.”

Also, Model Rule 3.3 Candor Toward The Tribunal comment 12 states:

“Lawyers have a special obligation to protect a tribunal against criminal or fraudulent conduct that undermines the integrity of the adjudicative process, such as bribing, intimidating or otherwise unlawfully communicating with a witness, juror, court official or other participant in the proceeding, unlawfully destroying or concealing documents or other evidence [,] or failing to disclose information to the tribunal when required by law to do so.”

Does the defense attorney have an ethical obligation under Model Rule 3.3 and comment 12 of Rule 3.3 to report the jurors misconduct to the court? What would be the best way to handle this situation?



#Famous on C-Block?… or a Jailhouse-Crock?

In 2008, Jodi Ann Arias put together an elaborate plan to corner her victim Travis Alexander and brutally stab him to death.  After 29 consecutive stab wounds, a slit to his neck nearly decapitating him, and a gunshot wound to the head, she watched him suffer and take his last breath.  She left him in the shower to rot, until he was ultimately found five days later in his Mesa, Arizona home.   Due to the heinous nature of the crime, and the fact that she was an “attractive” female, the case garnered enormous media attention.  After a lengthy trial, she was found guilty of first degree murder.  Currently, Jodi awaits her fate in the penalty phase as the Prosecutor Juan Martinez seeks the death penalty.

 As a convicted murderer, Jodi Arias has developed a large body of loyal followers via her Twitter page, which is run by a “friend”/previous fellow inmate.  She currently sells artwork on her website by using Twitter to advertise.  She also uses Twitter as a platform to: promote sales of her wristbands, taunt the victim’s family, solicit donations, poke fun at Prosecutor Juan Martinez, belittle her own attorney Kirk Nurmi, and flaunt her media coverage.  Should any of this be allowed to happen? 

 The Son of Sam Law, applicable in Arizona, prevents criminals from profiting from their crimes.  Although her artwork is not directly related to her crime, her Twitter account brings her enough fame to enable a healthy volume and a continuous flow of business. Should her horrendous murder be an outlet for her fame?  Is fame a legitimate form of profit? Would any of us ever know Jodi Arias if not for the gruesome death of Travis Alexander?   Should Jodi Arias have a voice to the outside world, after she extinguished Travis’ so horribly forever? Her latest tweet says she’s going “Radio Silent.”  Considering that jury selection begins soon, her sudden choice to “sign off” seems obvious.  Should such use of Social Media by a convicted murderer ever be allowed?