Social Media Legality

Should Social Media Be Used as a Sentencing Tool?

Mass Incarceration in the US – A Costly Issue

The United States has a costly over-incarceration issue. As of May 2021, the United States has the highest rate of incarceration in the world with 639 prisoners per 100,000 of the national population. New York State alone has more prisoners than the entire country of Canada. In 2016, the US Government spent over $88 billion on prisons, jails, parole, and probation systems. Not to mention the social cost of incarcerating nearly 1% of our entire adult population. Alternative sentences can provide a substitute for costly incarceration.

What Are Alternative Sentences?

Typically, punishment for a crime is imprisonment. Alternative sentences are sentences other than imprisonment, such as:

community service,
drug rehabilitation programs,
probation, and
mental health programs.

While many generalizations about alternative sentences cannot be made, as the results vary by program and location, alternative sentences can and do keep people out of the overcrowded, problematic prison system in the US.

Could Social Media Play a Part in Alternative Sentencing?

In June 2021, a tourist in Hawaii posted a video of herself on TikTok touching a monk seal. The video went viral, and copycats hopped on the trend of poking wildlife for views. Hawaiian people, outraged, called for enforcement action and local media outlets echoed their call. Eventually, the Hawaii Governor released a statement that people who messed with local wildlife would be “prosecuted to the fullest extent of the law.”

There are essentially three avenues of prosecution for interfering with wildlife: in federal court, state court, or civil court through the National Oceanic and Atmospheric Administration. Disturbing wildlife is a misdemeanor under federal law, but it’s a felony under state law, with a maximum penalty of five years in prison and a $10,000 fine. However, enforcement is unlikely, even after the Governor’s proclamation. Additionally, when enforcement does take place, it often happens out of the public eye. This imbalance of highly publicized crime and underpublicized enforcement led to a suggestion by Kauai Prosecuting Attorney Justin Kollar.

Kollar suggested sentencing criminals like the Hawaiian tourist to community service that would be posted on social media. Kollar looked to Hawaii’s environmental court as a potential model. Established in 2014 for the purpose of adjudicating environmental and natural resource violations, the environmental court has more sentencing tools at its disposal. For example, the court can sentence people to work with groups that do habitat restoration.

According to Kollar, requiring criminal tourists to take time out from their vacation to work with an environmental group — and possibly publicizing the consequence on social media — would not only be a more productive and just penalty, it would also create a positive and contrite image to spread across the internet. The violators would have an opportunity to become more educated and understand the harm they caused. Kollar wants people to learn from their mistakes, address the harm they caused, and take responsibility for their actions.

In an age when many crimes are visible on social media, what would be the pros and cons of using social media as a sentencing tool?

Some Pros and Cons of Using Social Media as a Sentencing Tool

In law school, we’re taught the theories of punishment, but not the consequences of punishment. While it’s important to think about the motivation for punishment, it’s equally, if not more, important to think about what happens because of punishment. In the case of using social media as a sentencing tool, there would likely be pros and cons.

One pro of using social media to publicize enforcement would be a rebalancing of the scale of crime v. enforcement publicity. This rebalance could help prevent vigilante justice from occurring when there is too big of a perceived gap between crime and enforcement. For example, when the TikToker posted her crime, she began to receive death threats. Many Hawaiians are fed up with their environment being exploited for financial profits. The non-enforcement and bold display of a wildlife crime led them to want to take matters into their own hands. In a situation like this, society does not benefit, the criminal does not learn from or take responsibility for their actions, and the victim is not helped.

An alternative sentence of wildlife-related community service publicized on social media could have benefited society because there is justice being done in a publicly known way that does not contribute to costly mass incarceration; helped the criminal learn from and take responsibility for their actions without being incarcerated; and, helped the victim, the environment, via the actual work done.

Additionally, this type of sentence falls into the category of restorative justice. Restorative Justice (RJ) is “a system of criminal justice which focuses on the rehabilitation of offenders through reconciliation with victims and the community at large.” The social media addition to an alternative sentence could provide the reconciliation with the “community at large” piece of the RJ puzzle. This would be a large pro, as RJ has been shown to lower recidivism rates and help victims.

While these pros are appealing, it is important to keep in mind that social media is a powerful tool that can facilitate far-reaching and lasting stigmatization of people. Before the age of social media and Google, a person’s criminal record could only be found in state-sponsored documents or small write-ups in a newspaper. As social scientists Sarah Lageson and Shadd Maruna put it, “although these records were “public,” they often remained in practical obscurity due to access limitations.” Today, any discretion, or presumed and unproven discretion in the case of online mug shots and police use of social media, can be readily found with a quick search. This can increase recidivism rates and make it harder for people with a criminal record to build relationships, find housing, and gain employment. The consequences of a readily available criminal record result in punishments not fitting to many crimes, as stigmatization is a part of punishment. Using social media as a sentencing tool could make the stigmatization situation worse, a huge con.

Perhaps there is a middle ground. To protect people from long-term stigmatization, faces and other identifying features could be blurred prior to publication. Similarly, identifying information, like names, could be excluded from the posts. By keeping the perpetrators anonymous, the scale of crime v. enforcement publicity could be rebalanced, the community aspect of RJ could be accomplished, and harmful stigmatization could be avoided. To completely avoid the possibility of stigmatization via social media postings, the program coordinators could post adjacent content. For example, they could post a before and after of the service project, completely leaving out the violators, while still publicizing enforcement.

Any iteration of the idea to use social media as a sentencing tool should be studied intensely regarding its consequences related to society, the criminal, and the victim, as it is a new idea.

Do you think social media should be used as a sentencing tool?

Alarming Side of Youtube

Social media has now become an integrated part of an individual’s life. From Facebook to twitter, Instagram, snapchat to the latest edition, that is TikTok, social media has made its way into a person’s life and occupies the same value as that of eating, sleeping, exercising etc. There is no denying the dopamine hit you get from posting on Instagram or scrolling endlessly, liking, sharing, commenting and re-sharing etc. From checking your notifications and convincing yourself, “Right, just five minutes, I am going to check my notifications” to spending hours on social media, it is a mixed bag. While I find that being in social media is to an extent a way to relax and alleviate stress, I also believe social media and its influence on peoples’ lives should not cross a certain threshold.

We all like a good laugh. We get a good laugh from people doing funny things on purpose or people pranking other people to get a laugh. Most individuals nowadays use some sort of social medial platforms to watch content or make content. YouTube is once such platform. After Google, YouTube is the most visited website on the internet. Everyday about a billion hours of videos are watched by people all over the world. I myself, contribute to those billion hours.

Now imagine you are on YouTube, you start watching a famous youtuber’s videos, you then realize this video is not only disturbing but is also very offensive. You stop watching the video. That’s it. You think that is a horrible video and think no more of it. On the contrary, there have been videos on YouTube which have caused mass controversy all over the internet since the platforms birth in 2005. Let us now explore the dark side of YouTube.

There is an industry that centers around pranks done to members of the public which is less about humor and more about shock value. There is nothing wrong with a harmless prank, but when doing a prank, one must be considerate how their actions are perceived by others, one wrong move and you could end facing charges or a conviction.

Across the social media platform there are many creators of such prank videos. Not all of them have been well received by the public or by the fands of the creators. One such incident is where YouTube content creators, Alan and Alex Stokes who are known for their gag videos plead guilty to charges centering around fake bank robberies staged by them.

The twins wore black clothes and ski masks, carried cash filled duffle bags for a video where they pretended to have robbed a bank. They then ordered an uber who, unaware of the prank had refused to drive them. An onlooker called the police believing that the twins had robbed a bank and were attempting to carjack the vehicle. Police arrived at the scene and held the driver at gunpoint until it was revealed and determined that it was a prank. The brothers were not charged and let off with a warning. They however, pulled the same stunt at a university some four hours later and were arrested.

They were charged with one felony count of false imprisonment by violence, menace or fraud, or deceit and one misdemeanor count of falsely reporting an emergency. The charges carry a maximum penalty of five years in prison. “These were not pranks. These are crimes that could have resulted in someone getting seriously injured or even killed.” said Todd Spitzer, Orange County district attorney.

The brothers accepted a bargain from the judge. In return for a guilty plea, the felony count would be reduced a misdemeanor resulting in one year probation and 160 hours of community service and compensation. The plea was entered despite the prosecution stating that tougher charges were necessary. The judge also warned the brothers, who have over 5 million YouTube subscribers not to make such videos.

Analyzing the scenario above, I would agree with the district attorney. Making prank videos and racking up videos should not come at the cost of inciting fear and panic in the community. The situation with the police could have escalated severely which might have led to a more gruesome outcome. The twins were very lucky, however, in the next incident, the man doing a prank video in Tennessee was not.

In filming a YouTube prank video, 20 year old Timothy Wilks was shot dead in a parking lot of an Urban Air indoor trampoline park. David Starnes Jr, admitted to shooting Wilks when he and an unnamed individual approached him and a group wielding butcher knives and lunged at them. David told the police that he shot one of them in defense of himself and others.

Wilks’s friend said they were filming a video of a robbery prank for their YouTube channel. This was a supposed to be a recorded YouTube video meant to capture the terrified reactions of their prank victims. David was unaware of this prank and pulled out his gun to protect himself and others. No one has been charged yet in regard to the incident.

The above incident is an example of how pranks can go horribly wrong and result in irreparable damage. This poses the question, who do you blame, the 20 years old man staging a very dangerous prank video, or the 23-year-old who fired his gun in response to that?

Monalisa Perez, a youtuber from Minnesota fatally shot and killed her boyfriend in an attempt to film a stunt of firing a gun 30 cm away from her boyfriend, Predo Ruiz, who only had a thick book of 1.5inch to protect him. Perez pleaded guilty to second degree manslaughter and was sentenced to six months’ imprisonment.

Perez and her boyfriend Ruiz would document their everyday lives in Minnesota by posting pranks videos on YouTube to gain views. Before the fatal stunt, Perez tweeted, “Me and Pedro are probably going to shoot one of the most dangerous videos ever. His idea, not mine.”

Perez had previously experimented before and thought that the hardback Encyclopedia would be enough to stop the bullet. Perez fired a .50-calibre Desert Eagle, which is known to be an extremely powerful handgun which pierced the encyclopedia and fatally wounded Ruiz.

Perez will serve a 180-day jail term, serve 10 years of supervised probation, be banned for life from owning firearms and make no financial gain from the case. The sentence is below the minimum guidelines, but it was allowed on the ground that the stunt was mostly Ruiz’s idea.

Dangerous pranks such as the one above has left a man dead and a mother of two grieving for fatally killing her partner.

In response to the growing concerns of filming various trends and videos, YouTube have updated their policies regarding “harmful and dangerous” content and explicitly banned pranks and challenges that may cause immediate or lasting physical or emotional harm. The policies page showcases three types of videos that are now prohibited. They are: 1) Challenges that encourage acts that have an inherent risk of sever harm; 2) Pranks that make victims they are physical danger and 3) Pranks that cause emotional distress to children.

Prank videos may depict the dark side of how content crating can go wrong but they are not the only ones. In 2017, youtuber, Logan Paul became the source of controversy after posting a video of him in a Japanese forest called Aokigahara near the base of Mount Fuji. Aokigahara is a dense forest with lush trees and greenery. The forest is, however, infamous for being known as the suicide forest. It is a frequent site for suicides and is also considered haunted.

Upon entering the forest, the youtuber came across a dead body hung from a tree. The actions and depictions of Logan Paul around the body are what caused controversy and outrage. The video has since been taken down from YouTube. An apology video was posted by Logan Paul trying to defend his actions. This did nothing to quell the anger on the internet. He then came out with a second video where he could be seen tearing up on camera. In addressing the video, YouTube expressed condolences and stated that they prohibit such content which are shocking or disrespectful. Paul lost the ability to make money on his videos through advertisement which is known as demonetization. He was also removed from the Google Preferred program, where brands can sell advertisement to content creators on YouTube.

That consequences of Logan Paul’s actions did not end there. A production company is suing the youtuber on the claims that the video of him in the Aokigahara resulted in the company losing a multimillion-dollar licencing agreement with Google. The video caused Google to end its relationship with Planeless Pictures, the production company and not pay the $3.5 million. Planeless Pictures are now suing Paul claiming that he pay the amount as well as additional damage and legal fees.

That is not all. Youtube has been filled with controversies which have resulted in lawsuits.

A youtuber by the name of Kanghua Ren was fined $22300 and was also sentenced to 15 months imprisonment for filming himself giving a homeless man an oreo filled with toothpaste. He gave 20 euros and oreo cookies to a homeless which were laced with toothpaste instead of cream. The video depicts the homeless man vomiting after eating the cookie. In the video Ren stated that although he had gone a bit far, the action would help clean the homeless person’s teeth. The court, however, did not take this lightly and sentenced him. The judge stated that this was not an isolated act and that Ren had shown cruel behaviour towards vulnerable victims.

These are some of the pranks and videos that have gained online notoriety. There are many other videos which have portrayed child abuse, following a trend by eating tidepods as well as making sharing anti-Semitic videos and using racist remarks. The most disturbing thing about these videos is that they are not only viewed by adults but also children. In my opinion these videos could be construed as having some influence on young individuals.

Youtube is a diverse platform home to millions of content creators. Since its inception it has served as a mode of entertainment and means of income to many individuals. From posting cat videos online to making intricate, detailed, and well directed short films, YouTube has revolutionized the video and content creation spectrum. Being an avid viewer of many channels on YouTube, I find that incidents like these, give YouTube a bad name. Proper policies and guidelines should be enacted and imposed and if necessary government supervision may also be exercised.

What Evidence is Real in a World of Digitally Altered Material?

Imagine you are prosecuting a child pornography case and have incriminating chats made through Facebook showing the Defendant coercing and soliciting sexually explicit material from minors. Knowing that you will submit these chats as evidence in trial, you acquire a certificate from Facebook’s records custodian authenticating the documents. The custodian provides information that confirms the times, accounts and users. That should be enough, right?

Wrong. Your strategy relies on the legal theory that chats made through a third-party provider fall into a hearsay exception known as the “business records exemption.” Under the Federal Rules of Evidence 902(11) “self-authenticating” business records “provides that ‘records of a regularly conducted activity’ that fall into the hearsay exception under Rule 803(6)—more commonly known as the “business records exception”—may be authenticated by way of a certificate from the records custodian.” (Fed. R. Evid. 902(11)), (United States v. Browne, 834 F.3d 403 (3d Cir. 2016)).

Why does this certification fail to actually show authenticity? The Third Circuit answers, saying there must be additional, outside evidence (extrinsic) establishing relevance of the evidence. (United States v. Browne, 834 F.3d 403 (3d Cir. 2016)).

Relevance is another legal concept where “its existence simply has some ‘tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’” (United States v. Jones, 566 F.3d 353, 364 (3d Cir. 2009) (quoting Fed. R. Evid. 401)). Put simply, the existence of this evidence has a material effect on the evaluation of an action.

In Browne, the Third Circuit says the “business records exemption” is not enough because Facebook chats are fundamentally different than business records. Business records are “supplied by systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in relying upon them, or by a duty to make an accurate record as part of a continuing job or occupation,” which results in records that can be relied upon as legitimate.

The issue here deals with authenticating the entirety of the chat – not just the timestamps or cached information. The court delineates this distinction, saying “If the Government here had sought to authenticate only the timestamps on the Facebook chats, the fact that the chats took place between particular Facebook accounts, and similarly technical information verified by Facebook ‘in the course of a regularly conducted activity,’ the records might be more readily analogized to bank records or phone records conventionally authenticated and admitted under Rules 902(11) and 803(6).”

In contrast, Facebook chats are not authenticated based on confirmation of their substance, but instead on the user linked to that account. Moreover, in this case, the Facebook records certification showed “alleged” activity between user accounts but not the actual identification of the person communicating, which the court found is not conclusive in determining authorship.

The policy concern is that information is easily falsified – accounts may be created with a fake name and email address, or a person’s account may be hacked into and operated by another. As a result of the ruling in Browne, submitting chat logs into evidence made through a third party such as Facebook requires more than verification of technical data. The Browne court describes the second step for evidence to be successfully admitted – there must be, extrinsic, or additional outside evidence, presented to show that the chat logs really occurred between certain people and that the content is consistent with the allegations. (United States v. Browne, 834 F.3d 403 (3d Cir. 2016))

When there is enough extrinsic evidence, the “authentication challenge collapses under the veritable mountain of evidence linking [Defendant] and the incriminating chats.” In the Browne case, there was enough of this outside evidence that the court found there was “abundant evidence linking [Defendant] and the testifying victims to the chats conducted… [and the] Facebook records were thus duly authenticated” under Federal Rule of Evidence 901(b)(1) in a traditional analysis.

The idea that extrinsic evidence must support authentication of evidence collected from third-party platforms is echoed in the Seventh Circuit decision United States v. Barber, 937 F.3d 965 (7th Cir. 2019). Here, “this court has relied on evidence such as the presence of a nickname, date of birth, address, email address, and photos on someone’s Facebook page as circumstantial evidence that a page might belong to that person.”

The requirement for extrinsic evidence represents a shift in thinking from the original requirement that the government carries the burden of only ‘“produc[ing] evidence sufficient to support a finding’ that the account belonged to [Defendant] and the linked messages were actually sent and received by him.” United States v. Barber, 937 F.3d 965 (7th Cir. 2019) citing Fed. R. Evid. 901(a), United States v. Lewisbey, 843 F.3d 653, 658 (7th Cir. 2016). Here, “Facebook records must be authenticated through the ‘traditional standard’ of Rule 901.” United States v. Frazier, 443 F. Supp. 3d 885 (M.D. Tenn. 2020).

The bottom line is that Facebook cannot attest to the accuracy of the content of its chats and can only provide specific technical data. This difference is further supported by a District Court ruling mandating traditional analysis under Rule 901 and not allowing a business hearsay exception, saying “Rule 803(6) is designed to capture records that are likely accurate and reliable in content, as demonstrated by the trustworthiness of the underlying sources of information and the process by which and purposes for which that information is recorded… This is no more sufficient to confirm the accuracy or reliability of the contents of the Facebook chats than a postal receipt would be to attest to the accuracy or reliability of the contents of the enclosed mailed letter.” (United States v. Browne, 834 F.3d 403, 410 (3rd Cir. 2016), United States v. Frazier, 443 F. Supp. 3d 885 (M.D. Tenn. 2020)).

Evidence from social media is allowed under the business records exemption in a select-few circumstances. For example, United States v. El Gammal, 831 F. App’x 539 (2d Cir. 2020) presents a case that does find authentication of Facebook’s message logs based on testimony from a records custodian. However, there is an important distinction here – the logs admitted were directly from a “deleted” output, where Facebook itself created the record, rather than a person. Accordingly, the Tenth Circuit agreed that “spreadsheets fell under the business records exception and, alternatively, appeared to be machine-generated non-hearsay.” United States v. Channon, 881 F.3d 806 (10th Cir. 2018).

What about photographs – are pictures taken from social media dealt with in the same way as chats when it comes to authentication? Reviewing a lower court decision, the Sixth Circuit in United States v. Farrad, 895 F.3d 859 (6th Cir. 2018) found that “it was an error for the district court to deem the photographs self-authenticating business records.” Here, there is a bar on using the business exception that is similar to that found in the authentication of chats, where photographs must also be supported by extrinsic evidence.

While not using the business exception to do so, the court in Farrad nevertheless found that social media photographs were admissible because it would be logically inconsistent to allow “physical photos that police stumble across lying on a sidewalk” while barring “electronic photos that police stumble across on Facebook.” It is notable that the court does not address the ease with which photographs may be altered digitally, given that was a major concern voiced by the Browne court regarding alteration of digital text.

United States v. Vazquez-Soto, 939 F.3d 365 (1st Cir. 2019) further supports the idea that photographs found through social media need to be authenticated traditionally. Here, the court explains the authentication process, saying “The standard [the court] must apply in evaluating a[n] [item]’s authenticity is whether there is enough support in the record to warrant a reasonable person in determining that the evidence is what it purports to be.” United States v. Vazquez-Soto, 939 F.3d 365 (1st Cir. 2019) quoting United States v. Blanchard, 867 F.3d 1, 6 (1st Cir. 2017) (internal quotation marks omitted); Fed. R. Evid. 901(a).” In other words, based on the totality of the evidence to include extrinsic evidence, do you believe the photograph is real? Here, “what is at issue is only the authenticity of the photographs, not the Facebook page” – it does not necessarily matter who posted the photo, only what was depicted.

Against the backdrop of an alterable digital world, courts seek to emplace guards against falsified information. The cases here represent the beginning of a foray into what measures can be realistically taken to protect ourselves from digital fabrications.

https://www.rulesofevidence.org/article-ix/rule-902/

https://www.rulesofevidence.org/article-viii/rule-803/

https://casetext.com/case/united-states-v-browne-12

https://www.courtlistener.com/opinion/1469601/united-states-v-jones/?order_by=dateFiled+desc&page=4

https://www.rulesofevidence.org/article-iv/rule-401/

https://www.rulesofevidence.org/article-ix/rule-901/

https://casetext.com/case/united-states-v-barber-103

https://casetext.com/case/united-states-v-lewisbey-4

https://casetext.com/case/united-states-v-frazier-175

https://casetext.com/case/united-states-v-el-gammal

https://casetext.com/case/united-states-v-channon-8

https://casetext.com/case/united-states-v-farrad

https://casetext.com/case/united-states-v-vazquez-soto-1?q=United%20States%20v.%20Vazquez-Soto,%20939%20F.3d%20365%20(1st%20Cir.%202019)&PHONE_NUMBER_GROUP=P&sort=relevance&p=1&type=case&tab=keyword&jxs=

Say Bye to Health Misinformation on Social Media?

A study from the Center of Countering Digital Hate, found that social media platforms failed to act on 95% of coronavirus-related disinformation reported to them.

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Over the past few weeks, social media companies have been in the hot seat regarding their lack of action against limiting the amount of fake news and misinformation on their platforms. Especially, the information regarding COVID-19 and the vaccine. Even President Biden remarked on social media platforms- stating Facebook and other companies were “killing people” by serving as platforms for misinformation about the Covid-19 vaccine. Later, Biden clarified his earlier statements by saying that he wasn’t accusing Facebook of killing people, but that he meant he wanted the companies to do something about the misinformation, the outrageous information about the vaccine.”

A few weeks later, Senator, Amy Klobuchar introduced the Health Misinformation Act, which would ultimately create an exemption to Section 230 of the Communication Decency Act. Section 230 has always shielded social media companies from being liable for almost any of the content that is posted on their platform. However, under the Health Misinformation Act, social media companies would be liable for the spread of health-related misinformation. Further, the bill would only apply to social media platforms that use an algorithm that promotes health misinformation- which most social media platforms use algorithms and would only apply to health misinformation during a health crisis. Additionally, if this bill were to pass, then the Department of Health and Human Services would be authorized to define “health misinformation.” Finally, the proposed bill would only apply during a national public health crisis, such as COVID-19. Therefore, this exemption would not apply during “normal” times, when there is no public health crisis.

Senator Amy Klobuchar and some of her peers believe the time has come to create an exemption to Section 230 because “for far too long, online platforms have not done enough to protect the health of Americans.” Further, Klobuchar believes that the misinformation spread about COVID-19 the vaccine proves to the world that the social media companies have no desire to do anything about this because the misinformation gives the social media platform more activity and because the companies cannot be liable for this misinformation because of Section 230.
Instead, these social media companies, use this misinformation to their advantage to get more activity on their platform by creating features within to incentivizing their users to share the misinformation and to get likes, comments, and other engagements, which rewards engagement rather than accuracy.” Furthermore, a study conducted by MIT found that false news stories are 70% more likely to be retweeted than true stories. Therefore, social media platforms, have no reason to limit this information because of the activity they receive for the misinformation. Especially, when this misinformation benefits the social media platform.

What are the concerns with the Health Misinformation Act?

How will the Department of Health and Human Services define “health misinformation?” it seems very difficult to define such a narrow topic, that the majority will agree upon. Also, I believe there will be a huge amount of criticism from the social media companies about this act. For instance, I can imagine the social media companies arguing how will they be able to implement the definition of “health misinformation” to their algorithm? Such as, what if the information on the health crisis changes? Will the social media company have to constantly change the algorithms with the constant change of health information? For example, at the beginning of the pandemic the information of the importance of the mask changed; from mask not being necessary to masking being crucial to ensure the health and safety of yourself and others.

Will the Bill Pass?

With that being said, I do like the concept of the Health Misinformation Act, because it’s wanting to hold the social media companies accountable for their inaction while trying to protect the public so they receive accurate health-related information. However, I do not believe this bill will pass because of a few issues; first, it may violate the First Amendment, for people’s freedom of speech. Second, while it isn’t right; it is not illegal for individuals to post their opinion or misinformation on social media. Therefore, the bill might not pass because it may violate the First Amendment. Finally, as stated earlier how would social media companies implement these new policies and the change of “health misinformation” and how would the federal agencies regulate the social media companies?

What should be done?

“These are some of the biggest, richest companies in the world and they must do more to prevent the spread of deadly vaccine misinformation.”

…

I believe we need to create more regulations and create more exemptions to Section 230. Especially, because Section 230 was created in 1996, our world looks and operates very differently than it did in 1996. Social media is an essential part of our business and cultural world.
Overall, I believe there need to be more regulations put into place to oversee social media companies. We need to create transparency with these companies, so the world can understand what is going on behind the closed doors of these companies. Transparency will allow for agencies to fully understand the algorithms and make for proper regulations.

To conclude, social media companies are a monopoly- even though there are a lot of them, there is only a handful that holds most of the popularity and power. With that being said, all major businesses and monopolies must follow strict regulations from the government. Yet, social media companies seem exempt from these types of strict regulations.

While there has been a push over the past few years to repeal or make changes to Section 230, do you think this bill can pass? If not, what can be done to create more regulations?

Don’t Throw Out the Digital Baby with the Cyber Bathwater: The Rest of the Story

This article is in response to “Is Cyberbullying the Newest Form of Police Brutality?” which discussed law enforcement’s use of social media to apprehend people. The article provided a provocative topic, as seen by the number of comments.

I believe that discussion is healthy for society; people are entitled to their feelings and to express their beliefs. Each person has their own unique life experiences that provide a basis for their beliefs and perspectives on issues. I enjoy discussing a topic with someone because I learn about their experiences and new facts that broaden my knowledge. Developing new relationships and connections is so important. Relationships and new knowledge may change perspectives or at least add to understanding each other better. So, I ask readers to join the discussion.

My perspectives were shaped in many ways. I grew up hearing Paul Harvey’s radio broadcast “The Rest of the Story.” His radio segment provided more information on a topic than the brief news headline may have provided. He did not imply that the original story was inaccurate, just that other aspects were not covered. In his memory, I will attempt to do the same by providing you with more information on law enforcement’s use of social media.

“Is Cyberbullying the Newest Form of Police Brutality?”

The article title served its purpose by grabbing our attention. Neither cyberbullying or police brutality are acceptable. Cyberbullying is typically envisioned as teenage bullying taking place over the internet. The U.S. Department of Health and Human Services states that “Cyberbullying includes sending, posting, or sharing negative, harmful, false, or mean content about someone else. It can include sharing personal or private information about someone else causing embarrassment or humiliation”. Similarly, police brutality occurs when law enforcement (“LE”) officers use illegal and excessive force in a situation that is unreasonable, potentially resulting in a civil rights violation or a criminal prosecution.

While the article is accurate that 76% of the surveyed police departments use social media for crime-solving tips, the rest of the story is that more departments use social media for other purposes. 91% notified the public regarding safety concerns. 89% use the technology for community outreach and citizen engagement, 86% use it for public relations and reputation management. Broad restrictions should not be implemented, which would negate all the positive community interactions increasing transparency.

Transparency

In an era where the public is demanding more transparency from LE agencies across the country, how is the disclosure of the public’s information held by the government considered “Cyberbullying” or “Police Brutality”? Local, state, and federal governments are subject to Freedom of Information Act laws requiring agencies to provide information to the public on their websites or release documents within days of requests or face civil liability.

New Jersey Open Public Records

While the New Jersey Supreme Court has not decided if arrest photographs are public, the New Jersey Government Records Council (“GRC”) has decided in Melton v. City of Camden, GRC 2011-233 (2013) that arrest photographs are not public records under NJ Open Public Records Act (“OPRA”) because of Governor Whitmer’s Executive Order 69 which exempts fingerprint cards, plates and photographs and similar criminal investigation records from public disclosure. It should be noted that GRC decisions are not precedential and therefore not binding on any court.

However, under OPRA, specifically 47:1A-3 Access to Records of Investigation in Progress, specific arrest information is public information and must be disclosed to the public within 24 hours of a request to include the:

Date, time, location, type of crime, and type of weapon,
Defendant’s name, age, residence, occupation, marital status, and similar background information.
Identity of the complaining party,
Text of any charges or indictment unless sealed,
Identity of the investigating and arresting officer and agency and the length of the investigation,
Time, location, and the arrest circumstances (resistance, pursuit, use of weapons),
Bail information.

For years, even before Melton, I believed that an arrestee’s photograph should not be released to the public. As a police chief, I refused numerous media requests for arrestee photographs protecting their rights and believing in innocence until proven guilty. Even though they have been arrested, the arrestee has not received due process in court.

New York’s Open Public Records

In New York under the Freedom of Information Law (“FOIL”), Public Officers Law, Article 6, §89(2)(b)(viii) (General provisions relating to access to records; certain cases) The disclosure of LE arrest photographs would constitute an unwarranted invasion of an individual’s personal privacy unless the public release would serve a specific LE purpose and the disclosure is not prohibited by law.

California’s Open Public Records

Under the California Public Records Act (CPRA) a person has the statutory right to be provided or inspect public records, unless a record is exempt from disclosure. Arrest photographs are inclusive in arrest records along with other personal information, including the suspect’s full name, date of birth, sex, physical characteristics, occupation, time of arrest, charges, bail information, any outstanding warrants, and parole or probation holds.

Therefore under New York and California law, the blanket posting of arrest photographs is already prohibited.

Safety and Public Information

Recently in Ams. for Prosperity Found. V. Bonta, the compelled donor disclosure case, while invalidating the law on First Amendment grounds, Justice Alito’s concurring opinion briefly addressed the parties personal safety concerns that supporters were subjected to bomb threats, protests, stalking, and physical violence. He cited Doe v Reed which upheld disclosures containing home addresses under Washington’s Public Records Act despite the growing risks by anyone accessing the information with a computer.

Satisfied Warrant

I am not condoning Manhattan Beach Police Department’s error of posting information on a satisfied warrant along with a photograph on their “Wanted Wednesday” in 2020. However, the disclosed information may have been public information under CPRA then and even now. On July 23, 2021, Governor Newsom signed a law amending Section 13665 of the CPRA prohibiting LE agencies from posting photographs of an arrestee accused of a non-violent crime on social media unless:

The suspect is a fugitive or an imminent threat, and disseminating the arrestee’s image will assist in the apprehension.
There is an exigent circumstance and an urgent LE interest.
A judge orders the release or dissemination of the suspect’s image based on a finding that the release or dissemination is in furtherance of a legitimate LE interest.

The critical error was that the posting stated the warrant was active when it was not. A civil remedy exists and was used by the party to reach a settlement for damages. Additionally, it could be argued that the agency’s actions were not the proximate cause when vigilantes caused harm.

Scope of Influence

LE’s reliance on the public’s help did not start with social media or internet websites. The article pointed out that “Wanted Wednesday” had a mostly local following of 13,600. This raised the question if there is much of a difference between the famous “Wanted Posters” from the wild west or the “Top 10 Most Wanted” posters the Federal Bureau of Investigations (“FBI”) used to distribute to Post Offices, police stations and businesses to locate fugitives. It can be argued that this exposure was strictly localized. However, the weekly TV show America’s Most Wanted, made famous by John Walsh, aired from 1988 to 2013, highlighting fugitive cases nationally. The show claims it helped capture over 1000 criminals through their tip-line. However, national media publicity can be counter-productive by generating so many false leads that obscure credible leads.

The FBI website contains pages for Wanted People, Missing People, and Seeking Information on crimes. “CAPTURED” labels are added to photographs showing the results of the agency’s efforts. Local LE agencies should follow FBI practices. I would agree with the article that social media and websites should be updated; however, I don’t agree that the information must be removed because it is available elsewhere on the internet.

Time

Vernon Gebeth, the leading police homicide investigation instructor, believes time is an investigator’s worst enemy. Eighty-five percent of abducted children are killed within the first five hours. Almost all are killed within the first twenty-four hours. Time is also critical because, for each hour that passed, the distance a suspect’s vehicle can travel expands by seventy-five miles in either direction. In five hours, the area can become larger than 17,000 square miles. Like Amber Alerts, social media can be used to quickly transmit information to people across the country in time-sensitive cases.

Live-Streaming Drunk Driving Leads to an Arrest

When Whitney Beall, a Florida woman, used a live streaming app to show her drinking at a bar then getting into her vehicle. The public dialed 911, and a tech-savvy officer opened the app, determined her location, and pulled her over. She was arrested after failing a DWI sobriety test. After pleading guilty to driving under the influence, she was sentenced to 10 days of weekend work release, 150 hours of community service, probation, and a license suspension. In 2019 10,142 lives were lost to alcohol impaired driving crashes.

Family Advocating

Social media is not limited to LE. It also provides a platform for victim’s families to keep attention on their cases. The father of a seventeen-year-old created a series of Facebook Live videos about a 2011 murder resulting in the arrest of Charles Garron. He was to a fifty-year prison term.

Instagram Selfies with Drugs, Money and Stolen Guns

Police in Palm Beach County charged a nineteen-year-old man with 142 felony charges, including possession of a weapon by a convicted felon, while investigating burglaries and jewel thefts in senior citizen communities. An officer found his Instagram account with incriminating photographs. A search warrant was executed, seizing stolen firearms and $250,000 in stolen property from over forty burglaries.

Bank Robbery Selfies

Police received a tip and located a social media posting by John E. Mogan II of himself with wads of cash in 2015. He was charged with robbing an Ashville, Ohio bank. He pled guilty and was sentenced to three years in prison. According to news reports, Morgan previously served prison time for another bank robbery.

Food Post Becomes the Smoking Gun

LE used Instagram to identify an ID thief who posted photographs of his dinner at a high-end steakhouse with a confidential informant (“CI”). The man who claimed he had 700,000 stolen identities and provided the CI a flash drive of stolen identities. The agents linked the flash drive to a “Troy Maye,” who the CI identified from Maye’s profile photograph. Authorities executed a search warrant on his residence and located flash drives containing the personal identifying information of thousands of ID theft victims. Nathaniel Troy Maye, a 44-year-old New York resident, was sentenced to sixty-six months in federal prison after pleading guilty to aggravated identity theft.

Wanted Man Turns Himself in After Facebook Challenge With Donuts

A person started trolling Redford Township Police during a Facebook Live community update. It was determined that he was a 21-year-old wanted for a probation violation for leaving the scene of a DWI collision. When asked to turn himself in, he challenged the PD to get 1000 shares and he would bring in donuts. The PD took the challenge. It went viral and within an hour reached that mark acquiring over 4000 shares. He kept his word and appeared with a dozen donuts. He faced 39 days in jail and had other outstanding warrants.

The examples in this article were readily available on the internet and on multiple news websites, along with photographs.

Under state Freedom of Information Laws, the public has a statutory right to know what enforcement actions LE is taking. Likewise, the media exercises their First Amendment rights to information daily across the country when publishing news. Cyber journalists are entitled to the same information when publishing news on the internet and social media. Traditional news organizations have adapted to online news to keep a share of the news market. LE agencies now live stream agency press conferences to communicating directly with the communities they serve.

Therefore the positive use of social media by LE should not be thrown out like bathwater when legal remedies exist when damages are caused.

“And now you know…the rest of the story.”

Free speech, should it be so free?

In the United States everybody is entitled to free speech; however, we must not forget that the First Amendment of the Constitution only protects individuals from federal and state actions. With that being said, free speech is not protected from censorship by private entities, like social media platforms. In addition, Section 230 of the Communications Decency Act (CDA) provides technology companies like Twitter, YouTube, Facebook, Snapchat, Instagram as well as other social media giants, immunity from liabilities arising from the content posted on their websites. The question becomes whether it is fair for an individual who desires to freely express himself or herself to be banned from certain social media websites by doing so? What is the public policy behind this? What are the standards employed by these social media companies when determining who should or should not be banned? On the other hand, are social media platforms being used as tools or weapons when it comes to politics? Do they play a role in how the public vote? Are the users truly seeing what they think they have chosen to see or are the contents being displayed targeted to the users and may ultimately create biases?

As we have seen earlier this year, former President Trump was banned from several social media platforms as a result of the January 6, 2021 assault at the U.S. Capitol by Trump supporters. It is no secret that our former president is not shy about his comments on a variety of topics. Some audiences view him as outspoken, direct, or perhaps provocative. When Twitter announced its permanent suspension of former President Trump’s account, its rationale was to prevent further incitement of violence. By falsely claiming that the 2020 election had been stolen from him, thousands of Trump supporters gathered in Washington, D.C. on January 5 and January 6 which ultimately led to violence and chaos. As a public figure and a politician, our former president should have known that his actions or viewpoints on social media are likely to trigger a significant impact on the public. Public figures and politicians should be held to a higher standard as they represent citizens who voted for them. As such, they are influential. Technology companies like Twitter saw the former president’s tweets as potential threats to the public as well as a violation of their company policies; hence, it was justified to ban his account. The ban was an instance of private action as opposed to government action. In other words, former President Trump’s First Amendment rights were not violated.

First, let us discuss the fairness aspect of censorship. Yes, individuals possess rights to free speech; however, if the public’s safety is at stake, actions are required to avoid chaos. For example, you cannot scream “fire” out of nowhere in a dark movie theater as it would cause panic and unnecessary disorder. There are rules you must comply with in order to use the facility and these rules are in place to protect the general welfare. As a user, if you don’t like the rules set forth by that facility, you can simply avoid using it. It does not necessarily mean that your idea or speech is strictly prohibited, just not on that particular facility. Similar to social media platforms, if users fail to follow their company policies, the companies reserve the right to ban them. Public policy probably outweighs individual freedom. As for the standards employed by these technology companies, there is no bright line. As I previously mentioned, Section 230 grants them immunity from liabilities. That being said, the contents are unregulated and therefore, these social media giants are free to implement and execute policies as they seem appropriate.

In terms of politics, I believe social media platforms do play a role in shaping their users’ perspectives in some way. This is because the contents that are being displayed are targeted, if not tailored, as they collect data based on the user’s preferences and past habits. The activities each user engages in are being monitored, measured, and analyzed. In a sense, these platforms are being used as a weapon as they may manipulate users without the users even knowing. A lot of times we are not even aware that the videos or pictures that we see online are being presented to us because of past contents we had seen or selected. In other words, these social media companies may be censoring what they don’t want you to see or what they may think you don’t want to see. For example, some technology companies are pro-vaccination. They are more likely to post information about facts about COVID-19 vaccines or perhaps publish posts that encourage their users to get vaccinated. We think we have control over what we see or watch, but do we really?

There are advantages and disadvantages to censorship. Censorship can reduce the negative impact of hate speech, especially on the internet. By limiting certain speeches, we create more opportunities for equality. In addition, censorship prevents the spread of racism. For example, posts and videos of racial comments could be blocked by social media companies if deemed necessary. Censorship can also protect minors from seeing harmful content. Because children can be manipulated easily, it helps promote safety. Moreover, censorship can be a vehicle to stop false information. During unprecedented times like this pandemic, misinformation can be fatal. On the other hand, censorship may not be good for the public as it creates a specific narrative in society. This can potentially cause biases. For example, many blamed Facebook for the outcome of an election as it’s detrimental to our democracy.

Overall, I believe that some sort of social media censorship is necessary. The cyber-world is interrelated to the real world. We can’t let people do or say whatever they want as it may have dramatic detrimental effects. The issue is how do you keep the best of both worlds?

Private or not private, that is the question.

Section 230 of the Communications Decency Act (CDA), protects private online companies from liability for content posted by others. This immunity also grants internet service providers the freedom to regulate what is posted onto their sites. What has faced much criticism of late however, is social media’s immense power to silence any voices the platform CEOs disagree with.

Section 230(c)(2), known as the Good Samaritan clause, states that no provider shall be held liable for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”

When considered in the context of a ‘1996’ understanding of internet influence (the year the CDA was created) this law might seem perfectly reasonable. Fast forward 25 years though, with how massively influential social media has become on society and the spread of political information, there has developed a strong demand for a repeal, or at the very least, a review of Section 230.

The Good Samaritan clause is what shields Big Tech from legal complaint. The law does not define obscene, lewd, lascivious, filthy, harassing or excessively violent. And “otherwise objectionable” leaves the internet service providers’ room for discretion all the more open-ended. The issue at the heart of many critics of Big Tech, is that the censorship companies such as Facebook, Twitter, and YouTube (owned by Google) impose on particular users is not fairly exercised, and many conservatives feel they do not receive equal treatment of their policies.

Ultimately, there is little argument around the fact that social media platforms like Facebook and Twitter are private companies, therefore curbing any claims of First Amendment violations under the law. The First Amendment of the US Constitution only prevents the government from interfering with an individual’s right to free speech. There is no constitutional provision that dictates any private business owes the same.

Former President Trump’s recent class action lawsuits however, against Facebook, Twitter, Google, and each of their CEOs, challenges the characterization of these entities as being private.

In response to the January 6th Capitol takeover by Trump supporters, Facebook and Twitter suspended the accounts of the then sitting president of the United States – President Trump.

The justification was that President Trump violated their rules by inciting violence and encouraged an insurrection following the disputed election results of 2020. In the midst of the unrest, Twitter, Facebook and Google also removed a video posted by Trump, in which he called for peace and urged protestors to go home. The explanation given was that “on balance we believe it contributes to, rather than diminishes the risk of ongoing violence” because the video also doubled down on the belief that the election was stolen.

Following long-standing contentions with Big Tech throughout his presidency, the main argument in the lawsuit is that the tech giants Facebook, Twitter and Google, should no longer be considered private companies because their respective CEOs, Mark Zuckerberg, Jack Dorsey, and Sundar Pichai, actively coordinate with the government to censor politically oppositional posts.

For those who support Trump, probably all wish to believe this case has a legal standing.

For anyone else who share concerns about the almost omnipotent power of Silicon Valley, many may admit that Trump makes a valid point. But legally, deep down, it might feel like a stretch. Could it be? Should it be? Maybe. But will Trump see the outcome he is looking for? The initial honest answer was “probably not.”

However, on July 15th 2021, White House press secretary, Jen Psaki, informed the public that the Biden administration is in regular contact with Facebook to flag “problematic posts” regarding the “disinformation” of Covid-19 vaccinations.

Wait….what?!? The White House is in communication with social media platforms to determine what the public is and isn’t allowed to hear regarding vaccine information? Or “disinformation” as Psaki called it.

Conservative legal heads went into a spin. Is this allowed? Or does this strengthen Trump’s claim that social media platforms are working as third-party state actors?

If it is determined that social media is in fact acting as a strong-arm agent for the government, regarding what information the public is allowed to access, then they too should be subject to the First Amendment. And if social media is subject to the First Amendment, then all information, including information that questions, or even completely disagrees with the left-lean policies of the current White House administration, is protected by the US Constitution.

Referring back to the language of the law, Section 230(c)(2) requires actions to restrict access to information be made in good faith. Taking an objective look at some of the posts that are removed from Facebook, Twitter and YouTube, along with many of the posts that are not removed, it begs the question of how much “good faith” is truly exercised. When a former president of the United States is still blocked from social media, but the Iranian leader Ali Khamenei is allowed to post what appears nothing short of a threat to that same president’s life, it can certainly make you wonder. Or when illogical insistence for unquestioned mass emergency vaccinations, now with continued mask wearing is rammed down our throats, but a video showing one of the creators of the mRNA vaccine expressing his doubts regarding the safety of the vaccine for the young is removed from YouTube, it ought to have everyone question whose side is Big Tech really on? Are they really in the business of allowing populations to make informed decisions of their own, gaining information from a public forum of ideas? Or are they working on behalf of government actors to push an agenda?

One way or another, the courts will decide, but Trump’s class action lawsuit could be a pivotal moment in the future of Big Tech world power.

Getting Away with Murder

It’s probably not best to “joke” around with someone seeking legal advice about how to get away with murder. Even less so doing it on social media where tone infamously, is not always easily construed. Alas, that is what happened recently in January 2021, in the case In re Sitton out of Tennessee.

Let’s lay out the facts of the case first. Mr. Sitton is an attorney who has been practicing for almost 25 years. He has a Facebook page in which he labels himself as an attorney. A Facebook “friend” of his, named Lauren Houston had posted a publicly viewable question, asking about the legality of carrying a gun in her car in the state of Tennessee. The reason for the inquiry was because she had been involved in a toxic relationship with her ex-boyfriend, who was also the father of her child. As Mr. Sitton had become aware of her allegations of abuse, harassment, violations of child custody arrangement, and requests for orders of protection against the ex, he decided to comment on the post and offer some advice to Ms. Houston. The following was Mr. Sitton’s response to her question:

“I have a carry permit Lauren. The problem is that if you pull your gun, you must use it. I am afraid that, with your volatile relationship with your baby’s daddy, you will kill your ex your son’s father. Better to get a taser or a canister of tear gas. Effective but not deadly. If you get a shot gun, fill the first couple rounds with rock salt, the second couple with bird shot, then load for bear.

If you want to kill him, then lure him into your house and claim he broke in with intent to do you bodily harm and that you feared for your life. Even with the new stand your ground law, the castle doctrine is a far safer basis for use of deadly force.”

Ms. Houston then replied to Mr. Sitton, “I wish he would try.” Mr. Sitton then replied again, “As a lawyer, I advise you to keep mum about this if you are remotely serious. Delete this thread and keep quiet. Your defense is that you are afraid for your life revenge or premeditation of any sort will be used against you at trial.” Ms. Houston then subsequently deleted the post, following the advice of Mr. Sitton.

Ms. Houston’s ex-boyfriend eventually found out about the post, including Mr. Sitton’s comments and passed screenshots of it to the Attorney General of Shelby County who then sent them to the Tennessee’s Board of Professional Responsibility (“Board”). In August 2018, the Board filed a petition for discipline against him. The petition alleged Mr. Sitton violated Rule of Professional Conduct by “counseling Ms. Houston about how to engage in criminal conduct in a manner that would minimize the likelihood of arrest or conviction.”

Mr. Sitton admitted most of the basic facts but attempted to claim his comments were taken out of context. One of the things Mr. Sitton has admitted to during the Board’s hearing on this matter was that he identified himself as a lawyer in his Facebook posts and intended to give Ms. Houston legal advice and information. He noted Ms. Houston engaged with him on Facebook about his legal advice, and he felt she “appreciated that he was helping her understand the laws of the State of Tennessee.” Mr. Sitton went on to claim his only intent in posting the Facebook comments was to convince Ms. Houston not to carry a gun in her car. He maintained that his Facebook posts about using the protection of the “castle doctrine” to lure Mr. Henderson into Ms. Houston’s home to kill him were “sarcasm” or “dark humor.”

The hearing panel found Mr. Sitton’s claim that his “castle doctrine” comments were “sarcasm” or “dark humor” to be unpersuasive, noting that this depiction was challenged by his own testimony and Ms. Houston’s posts. The panel instead came to the determination that Mr. Sitton intended to give Ms. Houston legal advice about a legally “safer basis for use of deadly force.” Pointing out that the Facebook comments were made in a “publicly posted conversation,” the hearing panel found that “a reasonable person reading these comments certainly would not and could not perceive them to be ‘sarcasm’ or ‘dark humor. They also noted Mr. Sitton lacked any remorse for his actions. It acknowledged that he conceded his Facebook posts were “intemperate” and “foolish,” but it also pointed out that he maintained, “I don’t think what I told her was wrong.”

The Board decided to only suspend Mr. Sitton for 60 days. However, the Supreme Court of Tennessee reviews all punishments once the Board submits a proposed order of enforcement against an attorney to ensure the punishment is fair and uniform to similar circumstances/punishments throughout the state. The Supreme Court found the 60-day suspension to be insufficient and increased Mr. Sitton’s suspension to 1-year active suspension and 3 years on probation.

Really? While I’m certainly glad the Tennessee Supreme Court increased his suspension, I still think one year is dramatically too short. How do you allow an attorney who has been practicing for nearly 30 years to only serve a 1-year suspension for instructing someone on how to get away with murder? Especially when both the court and hearing panel found no mitigating factors, that a reasonable person would not interpret his comments to have been dark humor and that it was to be interpreted as real legal advice? What’s even more mind boggling is that the court found Mr. Sitton violated ABA Standards 5.1 (Failure to Maintain Personal Integrity) and 6.1 (False Statements, Fraud, and Misrepresentation), but then twisted their opinion and essentially said there was no real area in which Mr. Sitton’s actions neatly fall into within those two rules and therefore that is why they are only giving a 1-year suspension. The thing is, that is simply inaccurate for the sentencing guidelines (which the court included in their opinion) for violations of 5.1 and 6.1, it is abundantly obvious that Mr. Sitton’s actions do fall into them clearly, so it is a mystery as to how the court found otherwise.

If you were the judge ruling on this disciplinary case, what sentencing would you have handed down?

Are Judges’ Safety at Risk? The Increase in Personal Threats Prompts the Introduction of the Daniel Anderl Judicial Security and Privacy Act

When a judge renders a legal decision, they hardly anticipate that their commitment to serving the public could make themselves or their family a target for violence. Rather than undergo the appeals process when an unfavorable verdict is reached, disgruntled civilians are threatening and even attacking the presiding judges and their families – placing them in fear of their lives.

Earlier this month, the federal judiciary introduced legislation which aims to safeguard the personal information of judges and their immediate family members within federal databases and restrict data aggregators from reselling that information. The Administrative Office of the U.S. Courts announced their support for the Daniel Anderl Judicial Security and Privacy Act of 2021, named for the late son of Judge Esther Salas of the U.S. District Court for the District of New Jersey.

The bill comes in response to the tragedy that occurred on July 19, 2020, when an angered attorney disguised as a FedEx delivery driver showed up at the Salas’ home and opened fire. In attempting to assassinate Salas, the gunman shot and killed her 20-year-old son, Daniel, and wounded her husband, attorney Mark A. Anderl. A day after the racially motivated attack, the gunman, Roy Den Hollander, was found dead from a self-inflicted gunshot wound.

The Manhattan attorney and self-proclaimed “anti-feminist” appeared in Salas’ courtroom months prior to the attack. According to the FBI, Hollander had detailed information on Salas and her family, in addition to several other targets on his radar. An autobiography published to Hollander’s personal website revealed anti-feminist ideology and his extreme displeasure with Salas, including the following posts:

“If she ruled draft registration unconstitutional, the Feminists who believed females deserved preferential treatment would criticize her. If she ruled that it did not violate the Constitution, then those Feminists who advocate for equal treatment would criticize her. Either way it was lose-lose for Salas unless someone took the risk of leading the way”
“Female judges didn’t bother me as long as they were middle age or older black ladies…Latinas, however, were usually a problem — driven by an inferiority complex.”
In another passage, he wrote that Salas was a “lazy and incompetent Latina judge appointed by Obama.”
He criticized Salas’ resume, writing that “affirmative action got her into and through college and law school,” and that her one accomplishment was “high school cheerleader.”

(https://www.goodmorningamerica.com/news/story/suspect-deadly-shooting-called-federal-judge-esther-salas-71901734)

In a news video two-weeks after the incident, Salas shared that “unfortunately, for my family, the threat was real, and the free flow of information from the internet allowed this sick and depraved human being to find all our personal information and target us. In my case, the monster knew where I lived and what church we attended and had a complete dossier on me and my family.” Since her sons’ killing, Judge Salas has been personally advocating for stronger protections to ensure that judges are able to render decisions without fear of reprisal or retribution – not only for safety purposes, but because our democracy depends on an independent judiciary.

***

Sadly, Judge Salas is not alone in the terrible misfortune that occurred last year. Judges are regularly threatened and harassed, specifically after high-profile legal battles with increased media attention – increasing 400% over the past five years. Four federal judges have been murdered since 1979. District Judge John Wood was assassinated outside his home in 1979 by hitman Charles Harrelson. In 1988, U.S. District Judge Richard Daronco was shot and killed in the front yard of his Pelham, New York, home. In 1989, Circuit Judge Robert Vance was killed when he opened a mail bomb sent to his home. District Judge John Roll was shot in the back and killed in 2011 at an event for Congresswoman Gabrielle Giffords, who was also shot and injured. (https://www.abajournal.com/news/article/federal-judiciary-supports-legislation-to-prevent-access-to-judges-information)

Thankfully, not all threats result in successful or fatal attacks – but the rise of intimidation tactics and inappropriate communications with federal judges and other court personnel has quadrupled since 2015.

U.S. District Judge Julie Kocurek was shot in front of her family in 2015. She miraculously survived but sustained severe injuries and underwent dozens of surgeries. The attempted assassin was a plaintiff before her court and had been tracking the judges’ whereabouts. Former Texas Federal Judge Liz Lang Miers attributes the attacks to someone misperceiving a ruling and acting irrationally “as opposed to understanding the justice system.”

In 2017, Seattle federal Judge James Robart received more than 42,000 letters, emails and calls, including more than 100 death threats, after he temporarily blocked President Donald Trump’s travel ban that barred people from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering the U.S. for 90 days. (https://www.nbcnews.com/news/us-news/attack-judge-salas-family-highlights-concerns-over-judicial-safety-n1234476)

The Internet, notably social media, has amplified the criticisms that citizens have with the judicial system. Rather than listening to and comprehending the entirety of a court ruling, an individual can fire off a tweet or post at the click of a button, spreading that inaccurate information worldwide. Before long, hundreds of thousands of people have seen that communication and are quick to draw conclusions despite not understanding the merits of the legal opinion. Misinformation, or misleading information or arguments, often aiming to influence a subset of the public, spreads rapidly. Data indicates that articles containing misinformation were among the most viral content, with “falsehoods diffusing significantly farther, faster, deeper, and more broadly than the truth in all categories of information.” (https://voxeu.org/article/misinformation-social-media).

***

Since 1789, federal judges have been entitled to home and court security systems and protections by the U.S. Marshals service – however the threats and attacks continue to prevail.

As elected public servants, judges’ information is made publicly available and easily accessible through a simple Google search. The Daniel Anderl Judicial Security and Privacy Act would shield the information of federal judges and their families, including home addresses, Social Security numbers, contact information, tax records, marital and birth records, vehicle information, photos of their vehicle and home, and the name of the schools and employers of immediate family members.

Many officials are onboard with the proposed legislation. Senator Menendez, who recommended Judge Salas to President Barack Obama for appointment to the federal bench, reveals that “the threats against our federal judiciary are real and they are on the rise. We must give the U.S. Marshals and other agencies charged with guarding our courts the resources and tools they need to protect our judges and their families. I made a personal commitment to Judge Salas that I would put forth legislation to better protect the men and women who sit on our federal judiciary, to ensure their independence in the face of increased personal threats on judges and help prevent this unthinkable tragedy from ever happening again to anyone else.” Moreover, Rep. Fitzpatrick noted that, “in order to bolster our ability to protect our federal judges and their families, we need to safeguard the personally identifiable information of our judges and optimize our nation’s personal data sharing and privacy practices.”

Additionally, the bill is supported by the New Jersey State Bar Association, National Association of Attorneys General, Judicial Conference of the United States, Federal Magistrate Judges Association, American Bar Association (ABA), Dominican Bar Association, New York Intellectual Property Law Association, Federal Bar Council, Hispanic National Bar Association (HNBA), and Federal Judges Association.

***

In memory of Daniel Anderl, taken too soon at 20-years-young. As the only child of U.S. District Court Judge Esther Salas and defense attorney Mark Anderl, Daniel gave his life to save his parents. He was a student at Catholic University in Washington, DC. There is a plaque honoring Daniel at the entrance of the Columbus School of Law at Catholic University, as he planned to pursue a career in law. The plaque is also to serve as a reminder to young people that