Technology & Marketing Law Blog

February 22, 2012

Courts Continue to Grapple with Discovery Disputes Around Social Networking Evidence

[Post by Venkat Balasubramani]

Tompkins v. Detroit Metro Airport, 10-10413 (E.D. Mich.; Jan. 18, 2012)

This is a slip and fall case where the plaintiff alleges that injuries she suffered at Detroit’s Metro airport affected her quality of life and ability to work. Defendant asked plaintiff to release her medical records and records from her Facebook account. She refused as to the Facebook account, arguing that the private portions of her account should not be turned over in discovery.

The court says (citing to McMillen v. Hummingbird and Romano v. Steelcase) that there’s no privilege as to information contained in social networking accounts. Access to this information by an opponent in litigation is governed by traditional discovery principles. The court notes that in both Romano and McMillen the plaintiffs made injury claims that were inconsistent with information contained in the public portions of their social networking accounts. The court says that while there is no privilege protecting private (or quasi-private) information in a social networking account, “the [d]efendant does not have a generalized right to rummage at will through information that [p]laintiff has limited from public view.” The court says there has to be a threshold showing that “the requested information is likely to lead to the discovery of admissible evidence.” [Translation: a standard argument in every personal injury case that the plaintiff must have posted pictures of herself frolicking on the beach will not fly.]

Here, defendant argued that the public postings and surveillance photographs satisfied this standard. The court says no. The picture of plaintiff holding a “very small dog and smiling” is not inconsistent with plaintiff’s claims of being injured. (“The dog in the photograph appears to weigh no more than five pounds and could be lifted with minimal effort.”) The surveillance photograph showing plaintiff pushing a grocery cart similarly is not inconsistent with plaintiff’s claim of being injured. The court rejects defendant’s attempt to access the private portion of plaintiff’s Facebook account:

If the Plaintiff’s public Facebook page contained pictures of her playing golf or riding horseback, Defendant might have a stronger argument for delving into the non-public section of her account. But based on what has been provided to this Court, Defendant has not made a sufficient predicate showing that the material it seeks is reasonably calculated to lead to the discovery of admissible evidence.

The court also says that the request for the entirety of the account will sweep in information that is in no way relevant to the case and is thus overly broad.

Davenport v. State Farm Mutual Auto Ins., 2012 U.S. Dist. LEXIS 20944 (M.D. Fla; Feb. 21, 2012)

Here, the insurance company defendant sent a request to plaintiff seeking all photographs posted to social networking sites, whether posted by plaintiff or by a third party. As in Tompkins, the court says there’s no special privilege that attaches to social networking content, but the rules of discovery limit an opponent’s ability to request this information.

Plaintiff proposed that she be required to produce only photographs taken by her that depict her. She says the photos she has been “tagged” in do not satisfy the Rule 26 relevance standard, but the court disagrees. The court says plaintiff has to produce all photographs which depict her, whether she posted them or she had been tagged in the picture. The court does limit this by saying the default discovery rules only require a party to produce information that is within the party’s “possession, custody, or control.” The court says this “likely” means that plaintiff will “need to produce only photographs that she posted or in which she was tagged.” The court does not offer any additional details on whether material posted to a social networking site is still within that party’s “possession, custody, or control.”

Separately, defendant had asked to inspect any devices used to post any material to social networking sites, but the court shoots this down.
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Courts are really all over the place on issues relating to the discovery of information posted to social networks. The decisions grapple with (but none coherently address) the following issues:

• whether any of the communications are covered under the Stored Communications Act and how this affects discoverability;
• whether an opponent can obtain direct access a non-party or witnesses social networking site (several decisions have ordered password swaps, waivers, or in-camera reviews);
• whether the discovery request should be directed to the social network directly or to the party whose information is sought;
• what threshold showing is required form a party seeking discovery;
• whether information posted to a social networking site is within the control, possession or custody of the party who posted it (for purposes of Rule 26).

Courts appear perfectly willing to smack down discovery requests that overreach, but continue to struggle with finding a balance and dealing with the logistical issues inherent in these types of discovery disputes.

Previous posts:

Court Orders Disclosure of Facebook and MySpace Passwords in Personal Injury Case -- McMillen v. Hummingbird Speedway
Deleted Facebook and MySpace Posts Are Discoverable--Romano v. Steelcase
Judge Offers to Facebook 'Friend' Witnesses in Order to Resolve Discovery Dispute -- Barnes v. CUS Nashville
Plaintiff Can't be Forced to Accept Defense Counsel's Facebook Friend Request in Personal Injury Case -- Piccolo v. Paterson
Court Orders Plaintiff to Turn Over Facebook and MySpace Passwords in Discovery Dispute -- Zimmerman v. Weis Markets, Inc.
Pennsylvania Court Orders Personal Injury Plaintiff to Turn Over Facebook Password to Defendant -- Largent v. Reed

Posted by Venkat at 12:33 PM | Evidence/Discovery , Privacy/Security

February 13, 2012

Employee Wins Harassment Claim Based in Part on Co-Workers' Offsite Blog Posts

By Eric Goldman

Espinoza v. County of Orange, 2012 WL 420149 (Cal. App. Ct. February 9, 2012)

Espinoza was born with an incomplete hand. In 1996, he started working for the county probations department. In 2006, a co-worker started two independent blogs, including one called "Keeping the Peace." Pseudonymous commenters quickly used the blog to launch a cyberattack against Espinoza, with multiple co-workers criticizing and mocking Espinoza's hand, managerial style and other work-related issues. (Espinoza wasn't the only probation employee attacked on the blog). Espinoza also alleged numerous offline incidents of harassment at the workplace, and he repeatedly reported the situation to management. The local managers took some steps to remediate the online harassment, but it appears those steps weren't pursued zealously and weren't effective. Espinoza sued the county for disability harassment (among other things), and a jury awarded him over $800k.

The county appealed on several grounds, including:

* the blog posts were "conduct outside the workplace." In addition to the fact that harassing behavior took place onsite, the court says:

Employees accessed the blog on workplace computers as revealed by defendant's own investigation. The postings referred both directly and indirectly to plaintiff, who was specifically named in at least some of them, and the postings discussed work-related issues. It was reasonable for the jury to infer the derogatory blogs were made by coworkers. Management sent two e-mails to employees directing they discontinue posting the improper comments on the blog. This suggests the administrators believed employees were posting. That none of the individual defendants was found liable for harassment does not overcome the other evidence of employee harassment. And that some of the blog postings were directed against the probation department and its management does not somehow offset the comments made about plaintiff.

This raises the same issue as the cases dealing with schools disciplining students for online behavior. See, e.g., 1, 2, 3, 4, 5, 6. However, I'm not sure I understand the onsite/offsite line being drawn by this court, and it's navigating some tricky issues. Clearly employers can't be automatically liable for online activity between employees, and in particular, government employers can't restrict an employee's speech outside the office. For a discussion about this in the context of private employers, see Venkat's post "Private Employers and Employee Facebook Gaffes [Revisited]."

This case seems a little clearer-cut than that. As the opinion spins it, the employer had a pervasive problem with intra-employee harassments both in and outside the office, and the employer didn't try very hard to fix that pervasive problem. But notice two things: even if the employer had blocked blog log-ins at the office, it couldn't regulate the out-of-office conduct; plus, none of the individual harassers were actually found guilty of harassment, so it's not clear their blogging was "illegal" content. As a result, the employer could not have cracked down on the employees' out-of-office conduct without risking a suit from the targeted employees. I'm not exactly sure what the court wanted the county to do about the offsite blog, and it's too bad the court didn't expressly acknowledge the employer's obvious dilemma.

* blog evidence should have been suppressed. In particular, the county argued that blog posts unrelated to Espinoza should have been excluded because those posts were "vulgar and disgusting." The court disagreed because the corpus of posts was sufficient relevant and not unfairly prejudicial.

* 47 USC 230. The county claimed that 47 USC 230 preempts the workplace disability harassment claim. Although part of the harassment claim was based on blog activity and allowing employees to access the blog from the workplace, the court concludes that "defendant's breach was not based on its employees' use of their work computers but on its own failure to investigate and resolve the problem." The court later reminds us that the "plaintiff does not seek to hold defendant liable for the actual blog postings, either directly or vicariously."

The court discusses the quirky Delfino v. Agilent case, where a prior California appeals court held that 47 USC 230 immunized an employer for providing Internet access to an employee who cyber-threatened third parties. The court distinguishes the case because in Delfino:

the plaintiffs were strangers, never employees of the defendant, and did not sue under FEHA, which imposes additional duties on an employer to protect an employee.. [and] the defendants had not ratified his acts and had no respondeat superior liability

On the plus side, it's good to see that employment lawyers addressing 47 USC 230. On the minus side, 47 USC 230 wasn't designed to address employer-employee lawsuits, so it will often be a stretch in those cases.

Posted by Eric at 12:35 PM | Content Regulation , Derivative Liability , Evidence/Discovery | TrackBack

January 27, 2012

Top Internet Law Developments of 2011

By Eric Goldman

As usual, I'm running late with my year-end recap. This post begins with my countdown of the top 5 Internet Law developments of 2011, then it lists other interesting developments and cases. It concludes with some of the most linked posts and then my editor's choice of some posts in 2011 that might have been a little overlooked. As usual, thanks for reading the blog in 2011!

Countdown: My Top 5 List of Developments in 2011

#5: Righthaven Implodes. Since the beginning, I've been skeptical of Righthaven's business model. Seriously, who else thinks it's a good idea to sue small-time mom-and-pop bloggers and non-profits on a one-by-one basis? However, even I had no idea that Righthaven would accelerate their own demise by routinely making basic litigation errors. A sketchy business model + a litigation shop that isn't very good at litigation = one dead start-up. It's always fun (in a bloodsporty way) to watch hubristic bullies get their just desserts, but watching the Randazza firm school the Righthaven litigators in Litigation 101 has been amazing. THAT'S how you litigate.

Righthaven lost often in 2011 (see my August reset). They lost fair use rulings (e.g., CIO, Choudry). They lost on standing grounds (e.g., Democratic Underground, Wolf). They were hit with sanctions. They were hit with hundreds of thousands of dollars of attorney fee shifts (e.g., Leon, Wolf, DiBiase). They even lost their domain name in an auction--a delicious irony given that Righthaven's complaints improperly demanded its defendants' domain names on the theory that it might need the domain name to satisfy a judgment against the defendant, when in fact it was Righthaven's domain name that was used to help satisfy a judgment against it!

Righthaven ended 2011 on death's door, but the trend of newspapers trolling for copyright litigation isn't going away. I'll be watching NewsRight closely in 2012.

#4: Medical Justice Gives Up. Speaking of hubristic bullies... You recall Medical Justice, the organization that helped doctors and other medical service providers take copyright assignments from patients in their as-yet-unwritten reviews so that the doctors could expeditiously remove unwanted reviews by sending 512(c)(3) takedown notices to review sites. It's an interesting legal hack, but it has some bad side-effects, including the fact that patients hated it, the copyright assignments almost certainly were void (for public policy reasons and others), doctors were hurting themselves by discouraging patient reviews (patients prefer to choose doctors when there's a critical mass of patient reviews), and (as our research uncovered) most consumer review sites ignored the doctors' 512(c)(3) takedown notices. Obviously, with those defects, Medical Justice wasn't exactly adding a ton of value to its clients. Medical Justice finally gave up, but too late to prevent a lawsuit against one of its clients and a complaint to the FTC. Chances are Medical Justice will be living with a long-term hangover from this entrepreneurial foray.

Seeing Medical Justice stop peddling anti-patient review tools was slightly satisfying, but that result was always a fait accompli. The reason Medical Justice's change of heart matters is that shady or clueless vendors keep developing new ways to suppress unwanted consumer reviews, and I hope Medical Justice's experiences will discourage other vendors from trying the copyright hack. I talk about these dynamics more in my paper on regulating reputational information.

#3: gTLD Expansion. It remains unclear exactly what ICANN's rollout of unlimited top level domains will do. Due to the expansion of new namespaces, brand owners face a long list of complicated--and potentially expensive--choices to make. Unfortunately, these choices don't really benefit society; instead, the gTLDs tax businesses while the benefits accrue to a small number of service providers (and, of course, ICANN itself). I think many businesses will reserve their name in multiple new gTLDs to prevent squatting--with the net effect that businesses will spend more money just to preserve the status quo. Meanwhile, most consumers are likely to be bewildered by the unlimited number of TLDs, which is just going to increase their tendency to rely on search engines and link directories rather than domain names to navigate to their desired destinations.

#2: Internet Consumer Privacy Lawsuits Tank. 2011 initially looked like the year of the Privacy Plaintiff. A torrent of privacy lawsuits had been filed, plaintiffs had wrested a few important and lucrative settlements, and Internet companies continue to make questionable privacy decisions that create a steady supply of potential new lawsuits.

But the path to riches didn't materialize. Instead, 2011 emerged as the year when privacy class action lawsuits mostly failed miserably. Courts principally rejected the lawsuits on standing grounds for lack of cognizable harm, but plaintiffs failed on other related grounds, such as a lack of damages negating the prima facie case. There were some exceptions where plaintiffs made a little progress (see, e.g., Claridge v. RockYou, Anderson v. Hannaford, Fraley v. Facebook). I'm sure the privacy plaintiffs' bar will be studying those rare successes to formulate a better battle plan--and to better prepare their cases and find strong named plaintiffs, a recurring omission that hasn't gotten a lot better over the year. However, for now, it's clear that the privacy plaintiffs' bar can't just show up in court and hold out their hands for a payday.

#1: Regulators Broke the Internet. We've always known that regulators could combat bad online activity by working "up the chain," i.e., by making upstream service providers liable for the bad acts or obligated to cut off the activity. However, for the most part, we've shared a tacit understanding that systematically going up the chain was a "nuclear" option--it would fix the specific problem but only at significant collateral cost that, on balance, makes the option unattractive.

I think we'll look back at 2011 as the year that tacit understanding broke down. In 2011, regulators around the world showed a seemingly insatiable demand for working up the chain. Although we in the USA like to think we're different from other repressive regimes, the evidence suggests otherwise. Some examples of "up the chain" activity in 2011:

* Arab Spring. Repressive regimes got local Internet access providers to turn off Internet access in the country.
* Operation in Our Sites. The Immigrations and Customs Enforcement (ICE) agency keeps seizing domain names of suspected foreign rogue websites on an ex parte basis, making errors and breaking the law in the process. Mike Masnick blew open the story on Dajaz1.com, which ICE seized on an ex parte basis, conducted secret proceedings for a year, and then gave back the domain name with no explanation.
* Graduated Response. Copyright owners got Internet access providers to voluntarily (?) agree to restrict, and eventually terminate, their users' accounts.
* Secondary liability against intermediaries. Rightowners keep expanding their intermediary targets, including lawsuits against ad networks and SEOs/web designers. To be fair, some of these lawsuits aren't going very far, and expansive secondary liability theories aren't new in 2011.
* Ex Parte Seizures. Rightsowners are asking for the moon against third party service providers in ex parte proceedings, and courts are giving it to them because the third parties aren't there to represent their own interests. We recap this epidemic in this post.
* SOPA and PIPA. These proposed bills were the finest examples of rightsowners pursuing the nuclear option regardless of the collateral damage. The bills' basic architecture was to attack a wide range of intermediaries for third party actions--domain name registrars, search engines, payment service providers, ad networks. By seeking to deputize the intermediaries, the bills sought to instantiate "up the chain" duties across virtually the entire Internet. Putting aside their other policy deficiencies, I think we should resist all laws predicated on that fundamental assumption of intermediary deputization. See my post on the OPEN bill for why I reject the compromise "follow the money" solution. Sadly, I stand virtually alone in my stance.

Other Interesting Developments.

Some other interesting developments this year:

* Patent Reform. The America Invents Act is the most dramatic patent reform bill in years, and it has many provisions that may affect Internet companies, including the joinder standards, the prior user defense, and the novelty/priority standards. The law doesn't fix the overall problems with bad Internet patents or unmeritorious assertions of those patents, but it nevertheless could make some dramatic changes in what Internet companies do.

* Google and Antitrust. Google has become the incumbent in search, and all of its rivals--especially the companies Google is disintermediating--are desperately seeking to knock it off its perch. I believe Google and antitrust was the #1 topic prompting reporter phone calls to me in 2011. We are waiting to see what comes from the FTC investigation into Google's practices, and the list of Google-haters keeps growing daily. At the same time, the anti-Google forces made surprisingly little actual progress in 2011, including suffering a conspicuous (and not even close) loss in the myTriggers case. See my paper on why I am so over the Google antitrust battles.

* DC's Obsession with Busting Silicon Valley Companies. Sometimes, it feels like DC insiders wake up in the morning and wonder, "What Silicon Valley company do I feel like busting today?" Drive down the 101 from San Francisco to San Jose and play the "Spot the FTC/DOJ Bust" bingo game. Some of DC's targets in 2011: Google Buzz, Twitter (finalized in 2011), Facebook, Google pharma ads, Apple and others for no-poaching restrictions, and others. Good times!

* Judges Order Litigants to Hand Over Passwords to Social Networking Sites. This year, several judges ordered litigants to turn over their Facebook passwords to their litigation opponents for discovery purposes. See, e.g., Zimmerman v. Weis (which I added to my Internet Law reader this year). In 10 years, we'll look back at this mini-trend and shake our heads at the judicial cluelessness. Social networking sites contain a mix of public and private information, and letting a litigation opponent root around the account is just as objectionable as making a litigant hand over the keys to his/her house so the opponent can rummage around.

Other Key Court Rulings in 2011

Some other interesting court decisions this year:

* Author's Guild v. Google. The court rejected the Google Book Search settlement agreement for good reasons, but it sent the parties back to square 1. Why the parties haven't been able to broker a legislative compromise is beyond me.

* Barclays v. theflyonthewall. The Second Circuit took a big bite out of the hot news doctrine. Unfortunately, the Second Circuit didn't kill the hot news doctrine outright, but the opinion leaves open very little room for hot news plaintiffs.

* Network Automation v. Advanced System Concepts. The most important keyword advertising ruling to come out in several years. While the ruling itself was a mixed bag for the litigants, the opinion tore down a number of crusty plaintiff-favorable legal doctrines that had cluttered up trademark jurisprudence for years--including virtually mooting the initial interest confusion doctrine and killing the "Internet trinity" bypass to the standard multi-factor likelihood of consumer confusion test. I've noticed that the opinion has already noticeably tilted courts towards more defense-favorable rulings.

* Betty Boop case (Fleischer Studio v. AVELA). For a few months, it looked like the Ninth Circuit had eliminated trademark merchandising rights in characters that were out-of-copyright. Then it changed its mind; but still it liberated Betty Boop to the world.

* PhoneDog v Kravitz. An interesting battle over ownership of a Twitter account.

* Levitt v Yelp/Ascentive v. PissedConsumer. 47 USC 230 still works really, really well as an immunity. In Levitt, Yelp got a 230 dismissal that Yelp had tried to get advertisers to pay to manage consumer reviews. In Ascentive, the court rebuffed a plaintiff's effort to use a trademark infringement claim against a consumer review website to work around 230.

* Habush v Cannon. Buying a person's name as the trigger for keyword advertising doesn't violate their publicity rights.

* UMG v. Shelter Capital. While everyone waits for the Second Circuit's decision in Viacom v. YouTube, the Ninth Circuit stole some of that thunder with a powerful endorsement of the 17 USC 512 safe harbor. Too bad Veoh didn't live long enough to enjoy the win.

* In re Rolando S. Rolando was convicted of felony identity theft for taking a classmate's Facebook page for a joyride. My vote for the most interesting Internet Law case of 2011, and an instant cyberlaw classic. I've already added it to my Internet Law reader, and the students seemed to enjoy discussing the case.

Some of the Most Linked Blog Posts in 2011 (Per Topsy)

* New Advertising & Marketing Law Casebook Available for Review
* Court Orders Plaintiff to Turn Over Facebook and MySpace Passwords in Discovery Dispute -- Zimmerman v. Weis Markets, Inc.
* "App Store" Isn't Generic, But Apple Can't Enforce Its Purported Trademark in the Term--Apple v. Amazon (Apple legal issues are always good link bait)
* Twitpic Modifies Terms and Claims Exclusive Rights to Distribute Photos Uploaded to Twitpic
* Republishing Entire Newspaper Story is Fair Use--Righthaven v. CIO
* Court Rules That Instant Message Conversation Modified the Terms of a Written Contract -- CX Digital v. Smoking Everywhere (the most popular post of the year by far--a modern Contract Law classic)
* Second Life Ordered to Stop Honoring a Copyright Owner's Takedown Notices--Amaretto Ranch Breedables v. Ozimals

Favorite "Overlooked" Posts

A few posts that maybe got overlooked a little:

* Cyberbullying and Restorative Justice [a Long-Delayed Post on DC v. RR]
* Racy Teen Photos Posted to Facebook Are Constitutionally Protected Speech--TV v. Smith-Green
* Marijuana Activist Can't Change His Name to "NJWeedman.com" -- In re Forchion
* Free-to-Consumers Ad-Supported Website Isn't Illegally Priced--Cammarata v. Bright Imperial
* What Would a Government-Operated Search Engine Look Like in the US?

Lists of Yore

Previous top 10 lists from 2010, 2009, 2008, 2007 and 2006. Before that, John Ottaviani and I put together a list of top Internet IP cases for 2005, 2004 and 2003.

Posted by Eric at 09:45 AM | Copyright , Derivative Liability , Domain Names , Evidence/Discovery , Internet History , Patents , Privacy/Security , Search Engines , Trademark | TrackBack

January 25, 2012

Facebook Boasts/Taunts Undermine the Legal Defense for a Fight at a House Party--In re DLW

By Eric Goldman

In the Matter of the Welfare of: D.L.W., Child, 2012 WL 171412 (Minn. App. Ct. Jan. 23, 2012)

The opinion indicates the following facts: BP supplied DLW with $200 of dope for resale. Before DLW could move the merchandise, the police seized the stash. The supplier-dealer contract apparently did not allocate this risk of loss, so BP took the position that DLW still owed $200. DLW either was unwilling or unable to pay. The parties then threatened each other via Facebook.

Subsequently, at a house party, BP and DLW got into a fight. Exactly what happened in the fight is the key issue. BP admitted he was "hovering over" DLW and that he administered "a pretty good beating" to DLW. DLW told the police he didn't fight back. However, after the fight, BP went to the hospital with 7 stab wounds. DLW was later found with a pocket knife that had BP's DNA on it.

In court, DLW claimed he didn't fight back and floated a self-defense claim. In response, prosecutors sought to introduce DLW's Facebook post made one hour after the fight:

D—n, I love drunk fight. Owee. I feel like a country boy in a bar fight. Got to love my bois. Ha! round 2. Let's do it, p-ssy. I got two days and that's enough to cause a little raucous.

Dude, Alicabeth, sorry for fighting at ur crib. Liquor before beer. You're in the clear. Well, that's a understatement. Ha! F—k you. The streets can see what you can't see. [B.P.], you're a p-ssy b—ch who can't fight worth sh-t. You f—king cracker a—b—ch. 4 on 8. D—n, that's sad. All your bois ended up on the ground. Ha! Get at me. You know where to find me. Ya'll make me laugh.

[B.P.], you are the definition of a white b—ch. Come see me. 85th Place North. Let's get it, p-ssy.

And just like last time, you won't get out of ur d—n car when my bois surround the car. Not a threat. Just a promise. You're guna get f—ked up. No lie. LOL.

Although I don't speak this language, the prosecutors asserted that these:

were not the words of a young man who just took a beating, didn't fight back and lost a fight....since we know that [B.P.] was over [appellant] and [appellant] was on the ground while [B.P.] was punching him, the only way that [appellant] could have felt that he won that fight was because he fought dirty, and he stabbed [B.P.].

The court allows the evidence, holding it is both potentially relevant and not unfairly prejudicial, and thus upholding the jury ruling of criminal assault. This suggests a new protip: if you're involved in a fight, check with your lawyer before discussing said fight on Facebook.

Compare People v. Bignone, another case involving house brawls and Facebook posts.

Related blog posts on social media evidence undermining legal arguments:

* Social Media Photos Foil Yet Another Litigant--Clement v. Johnson's Warehouse
* YouTube Video Impeaches Witness' Credibility--Ensign Yacht v. Arrigoni
* Facebook Entries Negate Car Crash Victims' Physical Injury Claims
* Contrary MySpace Evidence Strikes a Litigant Again--HAC, Inc. v. Box
* MySpace Postings Foil Another Litigant--Sedie v. U.S.
* Disturbingly Humorous MySpace Posts Used as Impeaching Evidence in Spousal Abuse Case--Embry v. State
* Latest Example of Social Networking Site Evidence Contradicting In-Court Testimony--People v. Franco

Posted by Eric at 09:21 AM | Evidence/Discovery | TrackBack

January 20, 2012

Connecticut Supreme Court Says no Error in Admission of Facebook Photos at Probation Hearing -- State v. Altajir

[Post by Venkat Balasubramani]

State v. Altajir, SC 18706 (Conn. Supreme Ct.; Jan. 3, 2012)

Altajir was involved in an automobile accident while she was under the influence. One of her passengers died. She was sentenced to five years in jail and five years of probation. The accident occurred in 2004 and she was sentenced in 2006. There were numerous conditions attached to the probation. After she got out (early), in 2009, she was involved in another accident. While she was not under the influence, she did not have an ignition lock device on her car and she had not restored her driver’s license. She admitted she violated these conditions of her probation.

At a later hearing, the state argued that Altajir was a “marginal probationer.” In addition to the fact that she hadn’t obtained a job, hadn't furthered her education, and didn’t do much community service, the state sought to highlight her nonchalance by putting a slew of Facebook photos in front of the judge. It argued that:

[the defendant was] worshipping at the altar of alcohol and debauchery and lewd behavior. And why is that significant. It’s significant because the message didn’t get sent, and this individual refused to accept it.

The trial court noted that her Facebook photos had played a role in her initial sentencing and the defendant “has the audacity to go back on Facebook and show herself in the condition of being intoxicated.” The defendant addressed the court but did not deny the photos' veracity. Defense counsel made an objection to admitting the photos, but although some of the photos were eliminated, the judge considered 36 photos. The court terminated probation and sentenced the defendant to three years in jail. Altajir appealed, and the appeals court said review of the issue was not preserved and the claimed violation was not of constitutional magnitude, so it did not merit reversal.

The Connecticut Supreme Court said that while strict evidentiary standards apply to the determination of whether someone violated their probation, in deciding to revoke probation or sentence a defendant, a court can take a broader category of evidence into account. The test is whether there is a high probability that “misinformation infected the [trial judge’s] decision.” While there was some discussion about the possibility that the date the photos were uploaded may not necessarily be the date the photos were taken, there was no evidence that the events depicted in the photos occurred after Altajir served her initial sentence. Instead, the court focuses on the fact that the defendant did not unequivocally deny the veracity of the photos (as to the dates, locations, etc.). The court says that while the evidence of reliability would have been insufficient at trial, the photographs had the minimum indicia of reliability to be admitted at a probation hearing.
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This case deserves a prime spot on Professor Goldman’s list of cases where people get zapped by social media evidence. As the court notes, the Facebook evidence was taken into account by the court in the initial sentencing. Altajir nevertheless did not keep her Facebook profile clean. She also does not demonstrate much awareness of Facebook's privacy settings or how photos of her would be viewed by others.

On the other hand, the court does not give enough credence to the fact that social media evidence has reliability issues, particularly when it is being used to show things like dates and places. The photos in question were uploaded after the initial sentencing, but the events depicted in the photos may not have occurred on the date they were uploaded. Some of the photos were labeled "old photos." The other problem is that the photos could have been uploaded by someone else or the defendant may have simply been "tagged" in the photos. The state did not present any evidence as to "how [the] photographs had been acquired, who could view the defendant's Facebook profile or how Facebook's features governing publicity and privacy functioned during the relevant time period." The court even says that the images were "purportedly viewable on the defendant's Facebook page."

[As a sidenote, Altajir is the granddaughter of Mahid al-Tajir, a United Arab Emirates man with a net worth of $4.3 billion.]

Previous post:

"It May be Best to Shut Down Your Facebook Account While You are on Probation -- State v. Altajir."

Related posts:

"Maryland Supreme Court Rejects "Circumstantial Authentication" Standard for MySpace Evidence -- Griffin v. Maryland"
"Connecticut Court of Appeals Tackles Authentication of Facebook Messages -- State v. Eleck"

Posted by Venkat at 11:39 AM | Evidence/Discovery

January 16, 2012

Copyright Doe Defendant Can’t Quash Disclosure Subpoena Anonymously—Hard Drive Productions v. Does (Guest Blog Post)

By Guest Blogger Elliott Alderman with brief comments from Eric

[Eric’s introductory note: Elliott Alderman is an IP attorney in Washington DC. I asked if he could guest-blog this opinion after calling it to my attention.]

Hard Drive Productions, Inc. v. Does 1-1,495, Civil Action No. 11-1741 (D.C. D.C. Dec. 21, 2011)

Overview: A DC Magistrate Judge recently ruled that a defendant cannot file anonymous motions to quash disclosure subpoenas in copyright file-sharing case. This ruling invites discovery abuses--and kicks due process.

The fragile balance between copyright owners enforcing their rights and the privacy interests of IP address owners was upended recently in Hard Drive Productions, Inc. v. Does 1-1,495, Civil Action No. 11-1741 (2011). There, the magistrate held that individuals who subscribe to the Internet through ISPs have no expectation of privacy in their subscriber information, since they have already disclosed this information to their service providers. So when copyright owners file disclosure subpoenas seeking subscriber information, local district court rules require that responding IP address owners must publicly identify themselves as part of filing a motion to quash.

There are two separate levels of privacy involved here: (1) public knowledge (including opposing counsel) of the IP address owner’s identity, and (2) the court’s knowledge of the parties involved in an action before it. A simple solution to the considerable detriment posed to subpoenaed parties is to allow motions to be filed under seal. At this stage, it is only discovery, not adjudication on the merits of the underlying claims, and there is no public benefit to disclosure before consideration of the motions.

Some background: As content owners move from suing download sites for inducement liability to a model of filing reverse class actions against unnamed individual users of P2P networks, discovery of infringers becomes crucial. However, content monitoring software, at best, may associate a digitally marked file with an IP address, but does not identify the owner of the account. And, significantly, the owner of the account is not, by definition, an infringer. So with IP addresses in hand, copyright owners must file disclosure subpoenas with ISPs to get the subscriber information associated with the identified IP addresses.

Typically, consistent with due process (and common sense), IP address owners responding to a disclosure subpoena have the right to preserve their anonymity while a judge reviews the propriety of the class action and the corresponding subpoena. Without the protection of anonymity, a motion to quash a disclosure subpoena is rendered moot, since disclosure of personal information on a public docket reveals the name and address information sought by the subpoena. See Achte/Neunte Boll Kino Beteiligungs GMBH & Co. v. Does 1-4,577, 736 F. Supp. 2d 212, 215 (D.D.C. 2010). Ironically, Achte/Neunte is one of the cases cited by the magistrate in support of public disclosure.

For a number of reasons, Hard Drive makes no sense. A subpoenaed owner essentially no longer has a right to contest disclosure, since challenging the merits of the discovery process reveals the very thing sought in discovery – his identity. And even if the judge later holds that the owner was misjoined, that an IP address is not an infringer, or any of the other bases that courts throughout the country are using to dismiss file-sharing defendants and kill these suits, plaintiffs have the personal information that they need to harass presumptively innocent parties. Worse still, plaintiffs will be encouraged to withdraw subpoenas before judges evaluate their merits, since the subpoenaed information will already be in hand.

As noted above, the Hard Drive magistrate also based his holding on Local Rule 5.1, which requires that all parties who file pleadings and papers with the district court must provide their name and full residence address, even if they are seeking to proceed anonymously. Judge Bates, who had assigned the case to the magistrate, originally ordered that motions to quash would remain under seal even if the moving party lost. How about a Solomonic compromise? Allow motions to be filed under seal, then only if the motion is denied would subscriber information be released, since the ISP is going to disclose the information anyway. Certainly there are policy reasons supporting the requirement that parties identify themselves to the court -- not the least of which is that it has no way of communicating with unrepresented Does – but permitting sealed motions balances the interests of copyright owners seeking to vindicate their rights against the privacy rights of IP address owners.

Moreover, the central premise of the decision, that there is no expectation of privacy in business transactions where information is disclosed to a third party, defies logic. One also shares information with telephone and insurance companies, and medical doctors – third parties all – but an expectation of privacy remains. Moreover, courts have implicitly recognized a privacy interest in ISP subscriber information, holding that copyright owners may not use the DMCA’s takedown notice-subpoena provisions to discover subscriber identities. See Recording Industry Association of America v. Verizon Internet Services, Inc., 351 F.3d 1299 (D.C. Cir 2003); In re Charter Communications, Inc., 393 F.3d 771 (8th Cir. 2005). And although it may be argued that when copyright infringement is at issue there is no free speech right to anonymity, see e.g. Sony Music Entertainment, Inc. v. Does, 326 F. Supp. 2d 556 (S.D.N.Y. 2004), the extortionate nature of the file-sharing cases is such that fairness would dictate that IP address owners should be able to anonymously defend against inclusion in classes of unrelated others.

Further, even assuming that an individual has no reasonable expectation of privacy in his subscriber information, he certainly does in his choice of movies. Part of the copyright troll business model, particularly for pornographic films, is the threat of publicly associating an individual with his private tastes. I have represented a number of owners who have had their routers hacked or had tenants or other unauthorized parties who used their Wi-Fi connections. With or without legal liability, too many of these parties have settled because privacy is a more expensive currency than cash.

In fact, in other contexts where there is the potential for stigma or embarrassment, courts typically evaluate the merits of the underlying case before requiring disclosure of confidential information, like a person’s identity. See, e.g. Doe v. Smith, 429 F3d 706 (7th Cir. 2005). The potential for harm to defendants in file-sharing cases is worse, however, because in addition to whatever shame or stigma attaches to being labeled an infringer or, worse, a porn hound (I think that’s the legal term), there are immediate legal consequences to stripping anonymity. Not permitting sealed motions is like having discovery first, then later evaluating its legitimacy.

Finally, the importance of the anonymous motion is intertwined with the architectural problems with the reverse class action model generally. This is not a white hat/black hat debate between content creators and piracy. Rather, the file-sharing cases are about the economics of joining unrelated parties in a class as a cost-effective way to pursue often non-meritorious actions, where secondary parties who are not infringers become the collateral damage. A number of court have dismissed these actions on a variety of grounds, including that:

* IP address owners are not intrinsically infringers. See VPR Internationale v. Does 1-1017, 2:2011cv02068 (C.D. Ill. 2011) (an IP address is not a person)
* different owners have different defenses; and
* unrelated owners do not act in concert by using a P2P program. K-Beech, Inc. v. John Does 1-85, Civil Action No. 3:11cv469 (E.D. Va. 2011); Raw Films, Ltd. V. John Does 1-32, Civil Action No. 3:11cv532 (E.D. Va. 2011); Hard Drive Productions, Inc. v. Does, No. C-11-01566 (N.D. Cal. 2011).

Moreover, the reliability of monitoring programs is suspect, Challenges and directions for monitoring P2P File Sharing Networks, University of Washington Technical Report, UW-CSE-08-06-01, and because a number of ISPs use dynamic IP addresses (where an IP address is rotated between several users) and “infringements” are generally date- and time-stamped, the odds of mistakenly associating a particular IP address with the “infringement” is greatly increased.

All this for want of a sealing motion!
___________

Eric’s Comments

This is a bad ruling. The court has guaranteed that the copyright plaintiff can unmask defendants simply by asking for a subpoena—either the subpoena is granted or the defendant reveals him/herself to fight the subpoena. That’s not the way the system is supposed to work. By creating a no-recourse situation for anonymous/pseudonymous defendants, the court has stripped them of essential due process rights. And, as we know, plaintiffs able to unmask defendants often can take advantage of substantial extra-judicial remedies, such as the public embarrassment factor in porn copyright cases. Thus, this ruling unfairly screws over anonymous defendants in these cases. It needs to be fixed.

For more on the topic, see Lior Strahilevitz’s paper Pseudonymous Litigation.

Posted by Eric at 10:00 AM | Copyright , Evidence/Discovery , Privacy/Security | TrackBack

January 03, 2012

Nov.-Dec. 2011 Quick Links, Part 2 (Extended IP Edition)

By Eric Goldman

Copyright

* Costco v. Omega (E.D. Cal. Nov. 9, 2011). On remand after the disappointing non-result from the Supreme Court in this case, the district court gives Costco a decisive win, holding that Omega engaged in copyright misuse:

Omega concedes that a purpose of the copyrighted Omega Globe Design was to control the importation and sale of its watches containing the design, as the watches could not be copyrighted. Accordingly, Omega misused its copyright of the Omega Globe Design by leveraging its limited monopoly in being able to control the importation of that design to control the importation of its Seamaster watches.

The net effect is that Costco violated copyright law's importation clause but Omega's copyright misuse makes the importation not actionable. This is one of the most significant copyright misuse decisions we've seen. Assuming it goes to the Ninth Circuit again, it will be interesting to see what they do with it. If this latest ruling stands, Omega's legal hack will be decisively shut down; and other manufacturers trying to use copyright to control their channels for non-copyrightable articles will want to reevaluate their approach.

* The Righthaven debacle continues to wind towards its messy but inevitable conclusion. Some of the items from the last couple months that caught my attention:

- Every time Righthaven's lawyers whine about opponents' unfair litigation tactics, I'm dumbstruck by the duplicity.

- Stephens Media dropped its efforts to contest that Democratic Underground made a fair use by republishing a newspaper article excerpt.

- Righthaven v. Wolf: "The Court admonishes Mr. Mangano regarding his lack of civility. The motion for reasonable attorney's fees in the amount of $32,147.50 and costs of $1,000.85 is GRANTED."

- Righthaven LLC v. Newsblaze LLC, 2011 WL 5373785 (D. Nev. Nov. 4, 2011). Yet another dismissal for lack of standing.

- the auction for Righthaven.com is going on right now. Current high bid is $1,900.

* C-70/10, Scarlet Extended SA v. Societe Belge des auteurs, compositeurs et editeurs (SABAM) (ECJ Nov. 24, 2011). Some interesting quotes from an ECJ opinion:
- "EU law precludes the imposition of an injunction by a national court which requires an internet service provider to install a filtering system with a view to preventing the illegal downloading of files"
- "The filtering system would also be liable to infringe the fundamental rights of its (Scarlet's) customers, namely their right to protection of their personal data and their right to receive or impart information"
- “E.U. law precludes an injunction made against an Internet service provider requiring it to install a system for filtering all electronic communications passing via its services, which applies indiscriminately to all its customers, as a preventive measure, exclusively at its expense, and for an unlimited period”

* Brownmark Films LLC v. Comedy Partners, 2011 WL 6002961 (E.D. Wis. Nov. 30, 2011): In awarding a fee shift to defendants, "the Court finds that Brownmark's legal positions were also objectively unreasonable, and thus their position was frivolous. To this Court, there is little that could justify the plaintiff's stated view that the South Park version was not parody....given the transformative nature of the use and the lampooning Brownmark's original received, there is ample reason to believe that South Park's use would have greater spurred the market for the original. In the internet era, with information freely and quickly accessible, viewers interested in South Park's version could turn to the internet to find a copy of the original. And any confusion over which version was the original could be supplied to online viewers through a statement at the video's web page. For all of these reasons, the Court finds that Brownmark was objectively unreasonable in its position that South Park's use was not fair." Wendy Davis' writeup.

* Carolyn Wright, a/k/a PhotoAttorney, who helps photographers enforce their copyrights, got side-swiped in a misguided enforcement action and had her photo site mistakenly taken offline by a DMCA takedown notice (not surprisingly, GoDaddy was in the middle of this).

* UC Berkeley revamps its policies about student note-taking and recordings of classes. It seems a little odd to encourage faculty members to be sending 512(c)(3) takedown notices freely. James Grimmelmann has more criticisms.

* Gibson v. Amazon (C.D. Cal. Sept. 8, 2011). The court rejected a copyright infringement case against Amazon, Urban Dictionary and others. Gibson is appealing to the Ninth Circuit.

* RIAA is in pre-litigation enforcement mode against ReDigi for reselling digital files.

* The Zynga-Vostu litigation settled.

* Ars Technica: Warner Bros: we issued takedowns for files we never saw, didn't own copyright to

* Megaupload brought a 512(f) suit against UMG for wrongfully taking down a promotional video. The complaint. The contract. James Grimmelmann's comments.

* The economics of the record label-online music site deals look very, very bad for the music sites.

* Techdirt: Congressional Research Service Shows Hollywood Is Thriving

* David v. CBS complaint. Tertiary infringement re-redux: Download.com sued again for secondary copyright infringement for distributing LimeWire and BitTorrent clients.

* A Singapore newspaper sued Yahoo News for copyright infringement.

* An analysis of the Trans Pacific Partnership (TPP).

Trademark

* 1-800 Contacts, Inc. v. Lens.com, Inc., 2011 WL 5403368 (D. Utah Nov. 4, 2011). The court denies 1-800 Contacts' motion for post-judgment relief based on newly discovered evidence. This case could be a textbook case of trademark bullying--remember, 1-800 Contacts has spent well over $650k on this case and Lens.com made $20 (not a typo) of profit directly from its keyword ads based on 1-800 Contacts' trademarks. Prior blog post.

* Speaking of trademark bullying, does an "Eat More Kale" t-shirt infringe any IP rights that Chik-fil-A has in "Eat Mor Chikin"? See the 2011 C&D letter, the 2006 C&D letter and the 2006 C&D response. I assume most kale eaters don't overlap with Chik-fil-A consumers. But, Paul Levy explains why there should be a pox on both parties' houses.

* Lovely Skin, Inc. v. Ishtar Skin Care Products, LLC., 2011 WL 6055489 (D. Neb. Dec. 6, 2011). In a trademark lawsuit, the defendant asked for:

REQUEST NO. 32: All documents referring or relating to purchasing of keywords, “Ad Words,” “sponsored links,” or other advertisements for search engines and any efforts to achieve search prominence on search engines, including but not limited to Your purchase, or consideration to purchase, the name “Lively Skin” or the URL www.livelyskin.com.

REQUEST NO. 37: Documents referring or relating to communications with Google to purchase “lively skin” and “livelyskin.com” as keywords or “Adwords.”

The court says (cites omitted):

In support of its motion to compel, Ishtar states that Lovely Skin's production of documents in response to these requests are “deficient for two reasons.” First, the Google information lacks the dates that the keywords were used, which are necessary to establish “(1) whether Lovely Skin's marks had achieved secondary meaning when Ishtar entered the market; and (2) the extent of Lovely Skin's inequitable use of the term “livelyskin” in its keyword advertising campaigns.” Second, Ishtar claims that as a result of its recent Internet searches, Ishtar has learned that “Lovely Skin possesses additional information regarding keyword purchases made by Lovely Skin through other search engines.” The Court finds that the information sought by Ishtar is relevant to its affirmative defenses of the claims made against it by Lovely Skin.

* Partners for Health and Home, L.P. v. Seung Wee Yang, 2011 WL 5387075 (C.D. Cal. Oct. 28, 2011):

Defendants have infringed Plaintiff's Perma–Life trademark by each of the following acts, taken either individually or as a whole:

a. Registering the domain www.perma-life.co.kr and using it to promote their competing Pearl Life cookware;

b. Applying the metatags “perma life” and “permalife” to the website at www.perma-life.co.kr through which they sold their competing Pearl Life cookware;

c. Applying the term “permalife” as visible video tags (indexes) on videos promoting Pearl Life cookware which they posted on the Internet at video sharing websites YouTube (www.youtube.com) and Tag Story (www.tagstory.com), and on the “blog” site Daum (www .daum.net).

d. Purchasing the term “permalife” as an Internet search engine advertising keyword to direct Internet users to their website at www.pearllife.com at which they advertised their Pearl Life cookware.

* Foreword Magazine Inc. v. Overdrive Inc., No. 10-1144 (W.D. Mich. Oct. 31, 2011). Offering to sell a domain name after getting a C&D can't be introduced as evidence of bad faith in the resulting ACPA suit.

* Weather Underground v. Navigation Catalyst (E.D. Mich. Nov. 9, 2011). Typosquatters' liability for ACPA violations must be evaluated on a domain name-by-domain name basis, not based on the defendant's entire portfolio; and ACPA bad faith cannot be established on a "willful blindness" standard.

* iYogi Holding Pvt. Ltd. v. Secure Remote Support, Inc., 2011 WL 6291793 (N.D.Cal. Oct. 25, 2011). A default judgment against a competitor who created fake reviews bashing the plaintiff.

* Fordham sent a trademark demand letter to Texas Wesleyan for using the acronym "CLIP" to describe its IP center, which garnered derision from many other IP professors. The demand letter (currently set to private; I'm trying to fix that).

* Multi-Time Machine v. Amazon complaint. A watch manufacturer sues Amazon for trademark infringement based on Amazon's internal search engine's results.

* Night Owl Games v. Zynga complaint. Another game developer seeks a declaratory judgment against Zynga over the -ville trademark, this time "Dungeonville."

* Harvard spikes a Yale t-shirt making fun of it.

* Rebecca provides three updates on Southern Snow Manufacturing Co. v. Sno Wizard Holdings, Inc. (see my prior blog post on the case): insurer had duty to defend, a baffling battle over false trademark marking, and a further rejection that metatags matter.

Patents/Trade Secrets

* The Trade Secret Litigator: The America Invents Act: What Will the Impact of the New Patent Law's "Prior Commercial Use" Defense Have on Trade Secret Protection?

* Coca-Cola turns the vault for its secret formula into a tourist attraction.

* The producers of the Bachelor/Bachelorette sued Reality Steve for inducing show participants to leak spoilers. Reality Steve’s response.

* Are strict limits on e-discovery coming for patent cases?

* All Things D reports on Abhyanker v. Benchmark Capital, an idea theft lawsuit against a VC fund involving the entrepreneur who also is behind Trademarkia.

Posted by Eric at 01:05 PM | Copyright , Domain Names , Evidence/Discovery , Patents , Trade Secrets , Trademark | TrackBack

I'm Not a Fan of this Craptastic Trademark Lawsuit--Fancaster v. Comcast

By Eric Goldman

Fancaster, Inc. v. Comcast Corp., 2011 WL 6426292 (D.N.J. Dec. 22, 2011).

We've seen some pathetic trademark lawsuits this year (SUE MOAR KALE, anyone?), but I'll nominate this long-running litigation money-sink (going over 3.5 years) as the saddest trademark case of 2011.

Fancaster registered its mark in 1989 for broadcasting services, and over the years it's been used in connection with a range of services, "including selling Fancaster branded radios, charging customers to watch closedcircuit boxing matches, producing karaoke shows, transmitting sponsored news messages to wireless pagers and cell phones, and conducting live demonstrations of FANCASTER broadcast services" (cites omitted).

In 2006, it launched Fancaster.com to broadcast short sport-related video clips. It hopes to cover such must-see events "as La Tomatina in Spain, Ostrich racing in Arizona, the Westminster Kennel Club Dog Show and the annual Nathan's Hot Dog Eating Contest." Rather than advertise the website on the Internet (you know, where people who enjoy content online might already be), instead they are seeking out untapped Internet enthusiasts by "marketing the website at sporting events, bars, on local television channels in Sioux Falls, South Dakota and Sioux City, Iowa, on radio stations in Charleston, South Carolina, and via flyers and handbills."

Meanwhile, in 2008 Comcast rolled out a service called fancast.com "that allowed users to watch full-length premium mainstream media over the Internet." The service was a debacle, losing $80M in less that 2 years due to “the unexpectedly high cost of distributing video content on the internet.” (Even though Comcast acquired bandwidth at wholesale rather than retail costs...how much it would have cost non-carriers to launch competitive services?). In March 2011, Comcast shut down the Fancast service and rolled the domain name over to XfinityTV.

With the overlap between the Fancaster and Fancast names, one possibility is that Comcast blatantly ripped off the name of a small startup who wouldn't want to tangle with a giant, thereby creating "reverse confusion" where everyone thinks first-mover Fancaster infringes second-comer Comcast. But another story equally fits this facts: Fancaster is doing a little trademark trolling, seeking to increase Comcast's $80M of losses by grabbing some gravy for itself. (Some gravy indeed: Fancaster's damages expert thought it would take $73M of corrective advertising to fix Comcast's damage to a brand that has no market awareness outside of Sioux City.)

It's a sad commentary on our milieu when we can't tell which litigant is bullying the other. Maybe *both* parties are equally imbibing the bullying elixir. Fancast initially unleashed the litigation hounds, but Comcast responded with a hailstorm of countermoves, including an ACPA counterclaim for a slew of "fancast" domain names Fancaster registered after learning about Comcast's upcoming launch. A lot of lawyers appear to have satisfied their billable hour goals using this case. Yay for free-spending deep-pocketed clients!

Trademark Infringement

The court resoundingly thumps Fancaster's core argument about consumer confusion, miraculously finding a way to twist all of the factors to Comcast's favor. The judge may have cut some analytical corners, but that says the judge simply didn't accept Fancaster's narrative.

The court specifically rejected the possibility of initial interest confusion, citing 3rd Circuit precedent that basically limited IIC to competitors, and the parties didn't directly compete. The court also dismisses Fancaster's efforts to show overlaps in search engine results, saying "the confusion one encounters on an Internet search engine is a twenty-first century version of that experienced when searching the phone book." I am going to be doing some work this quarter to show that the initial interest confusion doctrine almost never succeeds in court any more, and therefore it imposes costs on both litigants for no gain. This case is just one example of that.

The court also scoffed at Fancaster's request for $73M for corrective advertising:

There is not a shred of evidence of any damage to the fancaster mark caused by Comcast. The only loss to Fancaster that Mr. Krueger could testify to was that resulting from pursuing the instant litigation against Comcast.

Evidentiary Issues

Comcast had survey expert Hal Poret do two surveys. The court tosses the first one because it didn't adequately replicate market conditions by not presenting consumers with a navigable website:

use of a printout and static screenshots, instead of live websites, provide ample grounds on which to exclude the March 2009 survey. For one, it is difficult to fathom how presenting a respondent with a paper printout of the FANCAST homepage in anyway replicates how an Internet user would encounter and perceive the FANCAST website in the marketplace. Websites, particularly those that offer video content, are meant to be viewed on a computer and allow consumers to browse and interact with them via hyperlinks. The FANCAST printout offered none of these aspects. Similarly, although viewed on a computer, the static screenshots of the fancaster and control website homepages did not allow respondents to interact with them as they ordinarily would in the marketplace.

I haven't researched this issue, but this ruling may tell us something important about the requirements for consumer surveys when websites are involved.

JUST FOR LAW PROFESSOR READERS: Our colleague Greg Lastowka (a longtime friend) gets toasted by the judge for his expert report, which the judge repeatedly called "totally inappropriate" and says "wanders far from the proper scope of an expert's opinion." For example, Greg's report says the judge can award between $1k-$100k for an ACPA violation (a true statement of the law), to which the judge sarcastically responds "Lastowka's generosity gives the Court at least a modest role." Later, the judge blasts Greg for narrating the requirements of an ACPA claim, saying "A jury should not be receiving instructions on the law from two sources, and however erudite and accurate they may be, Mr. Lastowka's instructions will not be allowed to compete with the Court's instructions." The judge also tosses Greg's report on why Fancaster engaged in ACPA bad faith, saying "the expert assumes the role of the fact finder and is therefore not performing the role of an expert." This is a good reminder that when we're called for potential expert gigs, we have to clarify exactly what we're being asked to opine upon and whether it's appropriate for expert testimony. This judge clearly didn't respond well to any line-blurring about expert testimony.

For what it's worth, the court similarly shreds Gary Krugman's expert report for Comcast about PTO practices (part of Comcast's counterclaim for fraud on the PTO), part of which the judge says "inappropriately usurps the role of the fact finder."

Conclusion

This ruling eviscerated Fancaster's case, making it a strong win for Comcast, but it left a few residual legal issues open. Yet, the legal battle has been mooted by the passage of time. Comcast already stopped using Fancast as a brand, and Fancaster still hasn't shown a lot of movement towards developing a real business or even a revenue model. Are the parties really going to spend more money on a pointless lawsuit? We all know what the answer should be; let's see what they actually answer.

For more on the case, see Rebecca's post.

Posted by Eric at 09:00 AM | Domain Names , Evidence/Discovery , Trademark | TrackBack

January 02, 2012

UGC Website Hit With Spoliation Sanctions--Io v. GLBT

By Eric Goldman

[This is one of those blog posts that got stuck in queue. It's still pretty interesting, so I'm sharing at this relatively late date. Happy new year!]

Io Group Inc. v. GLBT Ltd., 2011 WL 4974337 (N.D. Cal. Oct. 19, 2011)

This case involves Io, the pornography company that lost Io v. Veoh, the main 17 USC 512 case I teach in my Internet law course. The defendants in this case are British. They run a series of UGC porn websites where users can get some porn for free and then must pay for additional access either with cash or by uploading their own content. The plaintiffs seek to hold the defendants liable for copyright and trademark infringement because users are allegedly committing copyright infringement by uploading the plaintiffs' porn. The defendants are defending on 17 USC 512 and other grounds.

Being in Britain, the defendants are governed by the Data Protection Act. They interpreted that act to require them to flush lots of data very quickly. Perhaps they have been overly zealous about implementing the DPA such that their interpretation isn't so credible. For example, they automatically deleted all incoming and outgoing email after 3-4 days, and they didn't change this for more than a year into the lawsuit. They also completely deleted all files that were subject to a takedown notice, so it wasn't possible for plaintiffs to see which files had been removed. Their answers to the judge's pointed questions apparently weren't very satisfying, and eventually the defendants went AWOL. So it's a little hard to tease out any legitimate DPA-based objections the defendants might have had from their other questionable choices.

FWIW, I'm not a DPA expert, but the DPA requires that the service provider keep data only so long as reasonably necessary. I would think legal obligations/discovery rules satisfy that standard.

The court's opinion gives some insights into the evidence that would be useful for the 512 safe harbor. The defendants completely wiped away any UGC files they disabled. The court says:

With respect to the deleted audiovisual files, Plaintiffs are prejudiced by not being able to examine the files and related metadata for any "red flags" indicating that infringement was likely. Such red flags could render Defendants ineligible for safe harbor protections of the Copyright Act.

This is consistent with language in the Ninth Circuit's subsequent ruling in UMG v. Shelter Capital. The court continues:

The loss of takedown notices and corresponding removal notification emails also prejudices Plaintiffs. First, the trier of fact may consider the extent of copyright infringement on Defendants' websites when analyzing a claim of inducement to infringe....Although the number of takedown notices does not alone determine the amount of actual infringement on the site, a large number of notices could indicate that a large portion of the material on the site is infringing. In addition, in order to be eligible for safe harbor protection, Defendants must show that they have policy in place providing for the termination of repeat infringers. 17 U.S.C. § 512(i)(1)(A). Defendants claim that they have such a policy in place, but without the ability to examine the takedown notices and corresponding emails, Plaintiffs have no way of challenging the implementation and enforcement of the policy because they cannot examine whether Defendants actually terminated individual users who repeatedly posted infringing material.

I'm not clear about the relevance of the percentage of infringing activity, but for more on the evidentiary issues associated with inducement, see the Grokster ruling. Finally, the court says:

the destruction of Defendants' internal emails renders it impossible for Plaintiffs to explore Defendants' motivation and state of mind in operating their websites; this is key to Plaintiffs' claim of secondary infringement based on inducement

For the evidence spoliation, the court hits the defendants with adverse inference sanctions:

Plaintiffs are entitled to adverse inference instructions in the form of rebuttable presumptions. Given the specific evidence destroyed by Defendants, the court orders the following rebuttable factual presumptions: 1) third parties posted material on Defendants' websites that infringed Plaintiffs' copyrights; 2) Plaintiffs submitted takedown notices to Defendants regarding the infringing material; and 3) Defendants did not take steps to remove Plaintiffs' infringing material from their websites.

Unless the defendants magically find some exculpatory evidence, it sounds like those inferences will nail them on the substantive rulings. The court also awarded $15,000 in attorneys' fees.

This case raises a number of interesting issues.

First, exactly what evidence is plaintiffs entitled to when trying to overcome a service provider's 512 defense? As far as I can tell, there are few limits because just about anything might support an inducement finding. The otherwise defense-favorable ruling in UMG v. Shelter Capital provides some other ideas about information that plaintiffs can seek. Summing all this up, as a practical matter, 512's safe harbor is nifty, but it's an increasingly expensive proposition for both parties. Contrast this with 47 USC 230, where many immunized lawsuits are tossed on a motion to dismiss without any discovery at all. Not only does that allow judges to issue clean and quick rulings, but it saves both plaintiffs and defendants a lot of coin. Note to statutory drafters: it's so important to consider the evidentiary implications of your legislative drafting. The way the statute implicitly allocates discovery costs has a huge substantive effect--especially if the goal is to create a safe harbor or immunity. On this point, even if 512 usually gets to the right result, the safe harbor is miscalibrated from an evidentiary standpoint.

Second, service providers hoping for a 512 safe harbor are often uncertain about what data they should or must retain. After Grokster, UGC sites became nervous about potential inducement liability. As a result, I believe it's become common to recommend that UGC sites flush as much material as quickly as possible (and before litigation becomes "reasonably anticipatable") to reduce the risk that the material will be cited as evidence of inducement or otherwise disqualify the 512 safe harbor. However, UGC sites don't want to look like they are trying to evade the truth or, worse, disrespecting the court (as the defendants in this case might be perceived as doing) or engaged in evidence spoliation, so how should UGC sites strike an appropriate balance? I'd welcome your thoughts about that.

Third, irrespective of how we feel about these particular defendants, their underlying point about the intersection between 17 USC 512 and user privacy is worth considering. 17 USC 512(m) is entitled "Protection of Privacy," so the drafters of 512 recognized the push-pull issue here. Assume for a moment that the defendants in this case honestly wanted to provide their users with private browsing/uploading/downloading, something that might be desirable in the context of these defendants' service. It seems logical that the service provider seeking a privacy-enhanced UGC service would flush its logs, email and disabled files promptly and make those representations to its users. Here, it appears the court would undo those promises, forcing the service provider to retain data it didn't want to keep for the benefit of copyright plaintiffs. I understand that may be our current state of play, but I see the potential for mischief too.

Posted by Eric at 08:20 AM | Copyright , Derivative Liability , Evidence/Discovery , Privacy/Security | TrackBack

December 11, 2011

Facebook Evidence Suppressed in Skater Brawl Prosecution--People v. Bignone

People v. Bignone, 2011 WL 6091756 (Cal. App. Ct. Dec. 8, 2011). Some background on the case.

In my house, it's not a party until someone spills, but my parties apparently are comparatively tame. This case involves a wild house party in tony Palos Verdes Estates which went downhill after a group of skaters arrived, apparently unwanted. During/after a "melee", where [t]here was just a bunch of fists flying" and one of the skater buddies allegedly yelled "Fuck [Defendant]", the defendant threw a beer bottle at the victim Smith, hitting Smith in the face and sending him to the hospital to get 34 stitches.

The jury convicted the defendant of assault with a deadly weapon (the beer bottle). The defendant claimed self-defense and appealed claiming the court improperly excluded Facebook evidence that the victim and one bro like to yell "Fuck you" to random people and a third bro self-acknowledged that he likes to be an asshole. The appeals court agreed that the evidence was properly excluded:

That evidence, at best, showed that the three young men in question may generally have been offensive, rude, and obnoxious, but it did little to show defendant's specific intent toward Smith on the night in question. Indeed, there was no showing that defendant ever witnessed any of the conduct in issue or that he was otherwise aware of it. None of that conduct constituted specific threats of violence, much less threats of violence toward defendant. Similarly, that conduct did not suggest or imply that the three men in question had reputations for violence in the community. Moreover, defendant did not offer the Facebook evidence to support his state of mind, but rather as credibility and demeanor evidence. Thus, it was reasonable for the trial court to conclude that the evidence merely suggested that the three men were "jerks" and that the evidence was therefore more prejudicial than probative.

If there were actually a defense that a victim's Facebook page demonstrated the defendant's jerkiness, California prisons would be a lot less crowded.

Posted by Eric at 10:19 PM | Evidence/Discovery | TrackBack

November 30, 2011

Pennsylvania Court Orders Personal Injury Plaintiff to Turn Over Facebook Password to Defendant -- Largent v. Reed

[Post by Venkat Balasubramani]

Largent v. Reed, 2009-1823 (Pa. Ct. of Common Pleas; Nov. 8, 2011)

Keith and Jessica Largent were involved in an accident in 2007. They sued Jessica Rosko and Sagrario Pena alleging negligence and loss of consortium. During Ms. Largent’s deposition, defense counsel realized that Ms. Largent had a Facebook profile and she “used it regularly to play a game called FrontierVille.” Largent refused to turn over any information about the account, and Rosko moved to compel Largent to disclose her Facebook username and password.

Rosko argued that Largent’s profile was “public,” and certain posts to Largent’s Facebook account contradicted her claims of “serious and severe injury.” Specifically, Rosko claimed that Largent posted photographers that depict her “enjoying life with her family and a status update about going to the gym.”

The court starts by noting that Pennsylvania discovery rules are broad and “the relevancy threshold is slight.” The court also notes that Rosko claimed a “good faith” basis for seeking the material in question: “[t]he information sought by Rosko might prove that Largent’s injuries don’t exist, or that they are exaggerated.”

If there is no applicable privilege or statutory bar, the information must be turned over. On the privilege issue, the court says:

[t]here is no confidential social networking privilege under existing Pennsylvania law. There is no reasonable expectation of privacy in material posted on Facebook. Almost all information on Facebook is shared with third parties, and there is no reasonable privacy expectation in such information.

As far as a statutory bar, the Stored Communications Act was the obvious possibility. The court recognizes the complexity around the statute and its applicability to the types of communications at issue, but says that “the minutae are irrelevant for [the present] purposes.” Only one court has addressed whether Facebook communications are covered by the SCA (Crispin v. Audigier) and the court distinguishes that case on the basis that in that case the information was sought directly from the provider. In this case, Rosko is seeking the information from Largent directly:

[t]he SCA does not apply because Largent is not an entity regulated by the SCA. She is neither a RCS nor an ECS, and accessing Facebook or the internet via a home computer, smartphone, laptop, or other means does not render her an RCS or ECS.

Largent argued that granting Rosko’s motion was akin to “asking her to turn over . . . her private photo albums and requesting to view her personal email,” and would cause embarrassment and annoyance, but the court rejects these arguments. With respect to the possibility of embarrassment, the court says that because the posts are not truly private anyway, there can be no credible argument that disclosing the information would cause unreasonable embarrassment. As to the issue of annoyance to Largent the court says, the costs will be borne by Rosko, and:

Largent can still access her account while Rosko is investigating.

The court orders Largent to turn over her Facebook login information to defense counsel within 14 days of the date of the order. Defense counsel then has a 21 day window in which to inspect Largent's profile. After this window elapses, the court says that Largent may change her password.
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I think we can all agree that the court's reminder that just because you posted something on a social network does not mean that it's privileged or off-limits is useful. The court is also right that it is folly to assume that anything posted to a social network (or for that matter, anywhere) is truly "private." These points can't be made often enough. That said, I think as with other Facebook discovery disputes, the resolution here is clunky and fails to account for the varied nature of the information that is stored in someone's Facebook account. This may range from private, e-mail-like communications with someone's lawyer or psychologist (should be privileged) to pictures of you frolicking on the beach which are published without any privacy restrictions at all (which are not privileged and undoubtedly relevant). Under the court's order, this distinction does not matter, and defense counsel is free to rummage around in Largent's Facebook account freely. (Kash Hill blogged about a discovery dispute with a similar result. A divorcing couple was forced to swap Facebook and dating site log-ins: "Judge Orders Divorcing Couple To Swap Facebook And Dating Site Passwords.") Some intrusion is expected and tolerated when you bring a claim for personal injury and maybe this is the cyber version of the independent medical examination. [As a sidenote, while it's problematic to delete any profiles while litigation is pending, if you are the plaintiff and you assert a claim for personal injury, you may want to delete your profile or deactivate it before you file suit. Added: check with your lawyer before you delete any profiles. Someone pointed out that the duty to preserve evidence arises before you file suit, so the pre-suit deletion of profiles may be ill advised.]

Of course, sharing your Facebook credentials with a third party is a violation of Facebook's terms of service--we all know that accessing a site in violation of its terms of service can come with stiff criminal penalties (the court even cites to US v. Drew in its order).

I don't have a great solution for this. It would be nice if Facebook allowed you to generate some sort of log of all of the items you have posted or sent around. This way the parties and the court can focus in on what's relevant without an opponent having to rummage around in your account.

In the meantime, if you are a litigant in a civil lawsuit and you post something online that you hope some folks don't see, just as with email, or any electronic media for that matter, realize that IT WILL COME BACK TO HAUNT YOU.

[NB: the court's order has some nice snark, including footnote 3: "Facebook currently does not allow a person to "dislike" (or in Facebook parlance, "un-like") a friend's post, probably for good reason."]

[Added: Lance Peterman suggests the ThnkUp app from Gina Trapani. I have not checked it out, but if it allows you to produce a comprehensive log of your Facebook posts, communications, and other activity, it may be useful for these types of discovery disputes. Another alternative may be the "download your information" feature which Facebook offers.]

Other coverage:

Drug & Device law: Another Excellent Facebook E-Discovery Opinion
Law.com No Reasonable Expectation of Privacy on Facebook, Pa. Judge Says

Previous posts:

"Court Orders Disclosure of Facebook and MySpace Passwords in Personal Injury Case -- McMillen v. Hummingbird Speedway"
"Judge Offers to Facebook 'Friend' Witnesses in Order to Resolve Discovery Dispute -- Barnes v. CUS Nashville"
"Facebook Messages/Wall Posts, Civil Discovery, and the Stored Communications Act -- Crispin v. Audigier"
"Plaintiff Can't be Forced to Accept Defense Counsel's Facebook Friend Request in Personal Injury Case -- Piccolo v. Paterson"
"Court Orders Plaintiff to Turn Over Facebook and MySpace Passwords in Discovery Dispute -- Zimmerman v. Weis Markets, Inc."

Posted by Venkat at 09:24 AM | Evidence/Discovery , Privacy/Security

October 24, 2011

Insurance Company's Request to Compel Production of Facebook Password Fails (with Costs)--Chauvin v. State Farm Mutual

[Post by Venkat Balasubramani with a comment from Eric]

Chauvin v. State Farm Mutual, 10-cv-11735 (S.D. Mich. June 21, 2011) (order affirming magistrate's ruling)

Plaintiff suffered an auto accident and sought to recover attendant care benefits under Michigan's no-fault statute. Defendant, State Farm, insured the plaintiff, and sought an order compelling production by plaintiff of "an email address and password for Defendant to examine [plaintiff's] Facebook account." Defendant also sought:

[the] username, email address and password for [plaintiff's] Facebook.com account . . . the name, address and telephone number of each 'friend' on [plaintiff's Facebook.com account, and] . . . all Facebook.com account information for [plaintiff], including, but not limited to, all photographs, messages, status posts, wall posts, comments, groups, and group memberships.

The court rejects the request. The accident in question occurred in 1993, and defendant itself argued that plaintiff's current medical condition was unrelated to the 1993 accident. (This was the basis for State Farm's denial of plaintiff's claims.) The court notes that under Michigan law, after an insurer denies a claim based on certain grounds, it is estopped from arguing additional grounds for denying the claim. Plaintiff also pointed to provisions of Michigan's No Fault Act which limits discovery to facts about an injured person's earnings and costs of treatment. The court also concluded that the sought-after discovery is not relevant, and flatly rejects State Farm's argument that plaintiff's Facebook posts will contain information about his daily activities and "his thoughts." Moreover, any information that State Farm could get through the Facebook account could be determined through other means.

The court noted that State Farm's requests are more than a fishing expedition. The interrogatory that sought the name, address and telephone number of each of plaintiff's friends was "so far outside the realm of discoverable information" that the court concludes it was intended to "intimidate and harass plaintiff."

Parties have gotten out-of-control in seeking social networking profile information. While Facebook and other sites may indeed be a discovery goldmine, this does not mean that you can freely request access to this information without articulating to the court some basis for why the sought after information is relevant or appears reasonably calculated to lead to the discovery of admissible evidence. A generic "we want insight into what the party is thinking" will not suffice, and is probably a red flag to the court. This isn't the first time a court has smacked down a party who requested access to Facebook information without articulating a basis of relevance. (See "Request for Discovery of Facebook Profile and Photos Rejected as a Fishing Expedition.")

Parties and their lawyers should take note of this and other similar decisions. Courts won't hesitate to push back on overly broad requests to access a party's social networking profile information.
_____

Eric's Comment

The insurance company's request was clearly out-of-bounds. What were they thinking?

Yet, as the joke goes, "there's an app for that." The funny--and disturbing--thing is that the insurance company could have downloaded almost all of its requested information--including Facebook friends' contact info--through the Facebook Connect API. See the list of things an app can request from Facebook once the user accepts the app. There's something troubling to me that the insurance company can't get the info under the court's supervision but can get virtually the same info directly from Facebook without any supervision at all if it can persuade the plaintiff to accept its app.

Posted by Venkat at 08:05 AM | Evidence/Discovery

October 14, 2011

Q3 2011 Quick Links, Part 4

By Eric Goldman

Content Regulation

* Lawmakers are putting the squeeze on advertisers to be content police. Meanwhile, VeriSign begged for the right to act as content police before changing its mind.

* Kowalski v. Koster, 2011 WL 4349365 (W.D. Mo. Sept. 15, 2011): “the CDA immunizes Internet service providers and does not create any cause of action under 42 U.S.C. § 1983.”

* SC v Dirty World, 4:11-cv-00392-DW (ED Mo. Sept. 22, 2011). Defendant posting a complaint filed against him & saying "game on" doesn't create an intentional infliction of emotional distress claim.

* Obsidian Finance Group, LLC v. Cox, 2011 WL 2745849 (D. Or. July 7, 2011). Allegedly defamatory statements at obsidianfinancesucks.com are "expressions of opinion protected by the First Amendment"

* Calibra Pictures LLC v Variety, 2011 WL 3612209 (Cal. App. Ct. Aug. 17, 2011). A negative newspaper review is protected by anti-SLAPP laws, even when the newspaper had enticed the plaintiff to spend substantial amounts of money to advertise with it. The allegations in this lawsuit were quite troubling about Variety’s peddling its insider influence and selling movie producers on results it could deliver. Rebecca's coverage.

* BCG Attorney Search v. Kinney, 2011 WL 2936773 (Cal. App. Ct. July 21, 2011). Lawsuit over a Ripoff Report post leads to a successful anti-SLAPP defense.

* US poker players turned into refugees by online gaming ban. Partially related: was Full Tilt Poker a Ponzi scheme?

* Carleton Hotel v Gladstone (complaint filed June 15, 2011). Hotel sues author of TripAdvisor review (for accusing the hotel of a bedbug infestation).

* Parisi v Sinclair appealed. Prior blog post. In addition, in Parisi v. Sinclair, 2011 WL 3705141(D.D.C. Aug 23, 2011) (NO. CIV. 10-897 RJL), one of the book authors was dismissed from the case for lack of personal jurisdiction.

* Useful primer on how to identify John Doe defendants.

* Hollywood, Esq.: Hot New Hollywood Trend: Crazy Defamation Lawsuits.

* Aaron Swartz is being prosecuted for a mass download from the JSTOR database.

* American Booksellers Foundation for Free Expression v. Sullivan, No. 10-193 (D. Alaska June 30, 2011). Alaska's baby-COPA law unconstitutional.

Social Networking Sites

* Bemis v. Bemis, 2011 WL 3335202 (Conn. Super. Ct. July 12, 2011). In a custody dispute involving 13 year old Alyssa, the court order imposed the following requirement: "Each parent shall view Alyssa's Facebook page once per week. If Alyssa is unwilling to share 100% access, she shall be denied computer and smart phone access except for use of a computer for schoolwork which shall be supervised."

* Held v. Ferrellgas, Inc., 2011 WL 3896513 (D. Kan. Aug. 31, 2011): “Plaintiff testified at his deposition that his coworker began subjecting him to a hostile environment prior to his termination in April 2009. At his deposition, Plaintiff could not recall whether he posted anything on Facebook that may be relevant to this case. Defendant claims that information from Plaintiff's Facebook page during Plaintiff's tenure at Ferrellgas is relevant. This court agrees. Further, it appears that Defendant is attempting to mitigate Plaintiff's privacy concerns by allowing Plaintiff to download and produce the information himself, rather than providing login information. Indeed, Defendant itself notes that it is not seeking unfettered or unlimited access to Plaintiff's Facebook, but rather limited access during the relevant time frame. As such, Defendant's motion to compel regarding the Facebook information is granted.”

* U.S. v. Fumo, 2011 WL 3672774 (3rd Cir. Aug. 23, 2011):

Not unlike a juror who speaks with friends or family members about a trial before the verdict is returned, a juror who comments about a case on the internet or social media may engender responses that include extraneous information about the case, or attempts to exercise persuasion and influence. If anything, the risk of such prejudicial communication may be greater when a juror comments on a blog or social media website than when she has a discussion about the case in person, given that the universe of individuals who are able to see and respond to a comment on Facebook or a blog is significantly larger.

Yet while prohibiting and admonishing jurors from commenting—even obliquely—about a trial on social networking websites and other internet mediums is the preferred and highly recommended practice, it does not follow that every failure of a juror to abide by that prohibition will result in a new trial. Rather, as with other claims of juror partiality and exposure to extraneous information, courts must look to determine if the defendant was substantially prejudiced.

* Missouri State Teachers Association v. Missouri (Mo. Cir. Ct. Aug. 26, 2011). Enjoining part of Missouri's Amy Hestir Student Protection Act. Prior blog post.

* D.J.M. v. Hannibal Public School District #60 (8th Cir. Aug. 1, 2011). A student's IM messages threatening to harm other students supported school discipline of the student, even if the messages were exchanged off school property.

* Kowalski v. Berkeley County Schools, 2011 WL 3132523 (4th Cir. July 27, 2011):

school administrators suspended [Kowalski] from school for five days for creating and posting to a MySpace.com webpage called "S.A.S.H.," which Kowalski claims stood for "Students Against Sluts Herpes" and which was largely dedicated to ridiculing a fellow student....we conclude that in the circumstances of this case, the School District’s imposition of sanctions was permissible. Kowalski used the Internet to orchestrate a targeted attack on a classmate, and did so in a manner that was sufficiently connected to the school environment as to implicate the School District’s recognized authority to discipline speech which "materially and substantially interfere[es] with the requirements of appropriate discipline in the operation of the school and collid[es] with the rights of others."

* Oddee: 9 Most Bizarre Facebook Related Crimes

* NYPD puts cops on the Facebook beat.

Wikipedia

* Wikimedia released its 2011-12 annual plan. One of its seven big goals: "The declining participation of seasoned Wikipedia editors must be reversed." As the the detailed report explained: "Declining participation is by far the most serious problem facing the Wikimedia projects: the success of the projects is entirely dependent upon a thriving, healthy editing community." To explain why that's such a challenge, see my article, Wikipedia’s Labor Squeeze and its Consequences. The plan also notes: "Recently we have seen a general decline online in the growth of unique visitors and in page views in the United States."

* In partially related news, Wikipedia is doing a broader rollout of its AbuseFilter tool.

* The Wikipedia Editor Survey from April 2011 provides more evidence of the challenges to replenishing the ranks of active editors.

Posted by Eric at 07:00 AM | Content Regulation , Evidence/Discovery , Privacy/Security | TrackBack

October 05, 2011

Ca. Court of Appeal Vacates $100,000 Non-Party Discovery Sanction Against Facebook -- In re J.G.

[Post by Venkat Balasubramani]

In re J.G., A128898; A129157 (Ca Ct. App.; Sept. 30, 2011)

Background: This involved a juvenile proceeding where J.G., a minor, was charged with the offenses of forcible sexual penetration and false imprisonment. During the proceedings, J.G.'s counsel served three subpoenas on Facebook, seeking information "relating to the victim's Facebook user account, including electronic messages sent to and from the account, and other data."

The first subpoena was issued on March 3, 2010 and demanded the production of documents within five days, or alternatively, Facebook's appearance at a court hearing on March 12. On March 17, Facebook served objections on J.G.'s counsel, and among other bases, Facebook argued that the Stored Communications Act precluded the production at issue. Facebook went back and forth with J.G.'s counsel, but did not appear at the scheduled hearing. At the hearing, J.G.'s counsel requested an order requiring Facebook's appearance in court on a new date: April 5, 2010.

On March 29, 2010 and April 7, 2010, the private investigator working for J.G.'s counsel served two additional subpoenas, the latter of which set a hearing date of April 13, 2010. While the first subpoena was signed by J.G.'s counsel, these two subpoenas were signed by the juvenile court commissioner. On April 9, 2010, Facebook served objections to these two subpoenas on counsel but did not file these objections with the court.

On April 12, 2010, Facebook's representatives discussed with J.G.'s counsel the possibility of having the victim execute a consent form. Facebook provided J.G.'s counsel the consent form, and counsel acknowledged receiving the form and advised Facebook: "You don't need to go to court tomorrow."

Facebook did not appear at the April 13 hearing. The investigator emailed a consent form purporting to be signed by the victim but it was actually signed by a representative of the district attorney's office. (??) The investigator further advised Facebook that there was a hearing and a further hearing on Facebook's "handling of the subpoenas" was set for April 20, 2010.

Prior to the April 20th hearing, Facebook's outside counsel arranged for a paralegal to contact the court. The court clerk advised that the hearing was scheduled to occur, but J.G.'s counsel advised Facebook's counsel that the hearing was cancelled. Facebook's counsel appeared at the April 20th hearing where he found out that the court was considering imposing a sanction on Facebook "for failing to comply with court orders relating to the subpoenas." Facebook's counsel advised that the Stored Communications Act restricted Facebook's ability to disclose the information in question. Following the hearing, the court imposed a sanction on Facebook in the amount of $100,000, payable to the Alameda County Superior Court. At the hearing, the court drops the gem of a line, that:

[the judge] saw in the [newspaper] two weeks ago that [Facebook's CEO] made three billion dollars in 19-- excuse me, 2009, three billion dollars . . . .

Shortly after the hearing, J.G.'s counsel provided Facebook with the signed waiver, Facebook produced the information in question, and the juvenile court released J.G. to home supervision. Facebook then moved to vacate the sanctions order.

Discussion: Facebook made three arguments for why the sanction should be vacated. The court rejects the first two, but agrees with the third.

Due Process/notice: Facebook argued that it did not have adequate notice of the court's intent to impose a sanction. The court disagrees, noting that Facebook's counsel appeared at and participated in the hearing. In fact:

counsel acknowledged that Facebook was aware of the court's displeasure with its compliance efforts, and [admitted] that 'it's entirely possible that some things may have fallen through the crack [sic].'

Even if there was some irregularity in the procedures, the court concluded that Facebook did not suffer any prejudice--it participated in the hearing fully and filed papers after the hearing.

Consent to commissioner acting as judge pro tempore: Facebook contended that it did not consent to the commissioner acting as judge pro tempore "for purposes of the sanctions proceedings." The court says Facebook's conduct at the sanctions hearing was implied consent.

Court's authority to impose sanctions: The final argument gets traction with the court. The court says that while the juvenile court has inherent authority to manage its proceedings, the juvenile court does not have inherent authority to impose punitive monetary sanctions. Several different statutes authorize the court to impose sanctions, but none of these come close to authorizing an award of $100,000. While a statute authorizing broader sanctions is on the books, it's limited to parties and not directed at the conduct of nonparty witnesses.
__

The court vacates the sanctions award as unauthorized and sends the matter back to juvenile court for further consideration in light of its opinion. The court does not reach the issue of whether Facebook "acted reasonably and in good faith," and it looks like the juvenile court is directed to not address this issue either. (The court's order is unclear on this last point.)

Service providers have to walk a fine line when responding to requests for communications. Although both lawsuits were dismissed, MySpace and Yahoo were both sued for disclosing information and communications in response to subpoenas that plaintiffs claimed did not fall under the specific exceptions in the Stored Communications Act. (See Sams v. Yahoo! and Hubbard v. Myspace.) Providers also have to worry about statutes such as the Video Privacy Protection Act and the newly-enacted California Reader Privacy Protection Act [pdf]. I haven't looked at it in detail, but my instinct is that the communications in this case could not be disclosed by Facebook, and it was correct in asserting that the Stored Communications Act barred disclosure. (The DOJ's Cybercrime division lays out the circumstances in which information can be disclosed by service providers. Even wading through this summary will make your head hurt.)

I'm sure Facebook is breathing a sigh of relief over having avoided the sanctions order, although it must not be looking forward to dealing with these discovery issues on an ongoing basis. Dealing with a subpoena in federal court is somewhat more straightforward than dealing with it in other fora, such as in a juvenile criminal proceeding.

It's unfortunate that the court did not discuss the merits of Facebook's objection based on the Stored Communications Act. Litigants also continue to grapple with the issue of how to get Facebook profile information in discovery. As far as recommendations for litigants trying to get Facebook-related information, I would familiarize yourself with what information is covered by the SCA and tailor your request for information accordingly. Second, whenever possible, I would try to seek the information from the litigant rather than from the network directly, and try to obtain a waiver, to the extent there are logistical issues preventing discovery of the information from the litigant. (Of course, courts have not resolved the issue of whether someone can be forced to execute a waiver, but I'm guessing we'll see some decisions on that soon enough.)

Posted by Venkat at 02:08 PM | Evidence/Discovery , Privacy/Security

October 01, 2011

Facebook's Trademark Suit Against Teachbook Survives Motion to Dismiss

by Eric Goldman

Facebook, Inc. v. Teachbook.com LLC, 2011 WL 4449686 (N.D. Ill. Sept. 26, 2011).

Facebook has been helping many lawyers send their kids to private school with an expensive enforcement campaign to control the prefix "face" and suffix "book" for social networking sites. Its "-book" targets have included Lamebook (which recently settled; see some speculation why), Bearbook for the hirsute gay community and Teachbook, the subject of this lawsuit, which targets teachers.

Facebook's entire campaign is fraught with peril given the intensely descriptive nature of Facebook's own trademark, the historical meanings of "facebook" prior to The Facebook, and the interest of budding new entrepreneurs in taking advantage of the pre-The Facebook lexical meanings of the term. But the reality is that Facebook is apparently willing to sink a significant amount of money into an aggressive legal position, which helps it bully 9 out of 10 targets off the term just by threatening them.

Teachbook is one of the few that didn't back down, and it even won an initial legal victory in May when it got Facebook's trademark infringement lawsuit dismissed for lack of jurisdiction. Facebook promptly refiled in Teachbook's home court, and Teachbook's subsequent motion to dismiss gets zero traction with this judge.

Evidentiary Issues

Teachbook submitted 300 pages of exhibits and asked the court to consider them on the motion to dismiss, and the court rejects all of it. For example, the court declines to take judicial notice of a filing Facebook made in a European trademark proceeding, USPTO filings and various dictionaries. The court also declines to consider printouts from Facebook's website, saying those printouts aren't "central" to Facebook's complaint.

The good news for Teachbook is that all of this material can be considered at a later stage of the lawsuit. The bad news is that it has to fight long enough to get there.

Is the "Book" Suffix Generic?

Teachbook made the reasonable argument that the suffix "book" is generic, and therefore Facebook should not be able to enforce any rights in the term "book." (If I recall correctly, Facebook had to disclaim the "book" suffix in its US trademark application). Facebook logically retorts that it is seeking to enforce the entirety of its "Facebook" mark, not just any standalone rights in the suffix "book." The court accepts Facebook's spin, at least for purposes of the dismissal motion, saying "one could reasonably infer that the choice of the TEACHBOOK mark—which, like the FACEBOOK mark, is a curt, two-syllable conjunction of otherwise unremarkable words—to offer a similar service in the same medium was no accident." The court also notes that Facebook has a registered trademark (prima facie evidence that the term "Facebook" is not generic) and that Teachbook has the burdens on a motion to dismiss.

The court says that even if Facebook is enforcing just the "book" suffix, that term isn't generic:

Facebook is using the suffix-BOOK to offer social networking services via the internet. Even in this age of “e-books,” social networking services do not fall within the category of what one would traditionally call “books.”...were we to narrow the focus of our inquiry to the suffix -BOOK, we would still be unable to conclude that Facebook's mark is merely generic in the context of offering social networking services on the internet

It appears the court has only one definition of "book" in mind--presumably, a long-form bound-cover published BOOK. The court even says "the word “book,” unlike “top,” does not instantly call to mind a multiplicity of meanings." But I couldn't disagree more, the "book" can mean many things in addition to a classic BOOK. Indeed, before The Facebook, a facebook was a printed photo directory of people in a small social network, such as the incoming 1L class at a law school. For more on the legal ambiguity of the term "book," see our blog post on the California Reader Privacy Act, which I still oppose in large part due to the semantic ambiguity of the term "book" (and which I predict will lead to a privacy plaintiff lawyer fiesta on that point).

Likelihood of Consumer Confusion

On mark similarity, the court sees enough similarity for now: "Both marks are a combination of the suffix-BOOK preceded by fairly mundane, monosyllabic words. And in both instances, it is the uninterrupted conjunction of the mundane words with the suffix-BOOK that gives the marks their verve." The court distinguishes between sites that draw users through "word-of-mouth, hyperlinks, and search engine results" versus user browsing, saying:

Given the similarities between the TEACHBOOK and FACEBOOK marks, it is reasonable to infer that someone browsing the internet might understand Teachbook to be “in some way related to, or connected or affiliated with, or sponsored by” Facebook.

Huh? If the user reaches the site by browsing, then they will see the entire site--including any disclaimers, and the market positioning that Teachbook is an alternative to Facebook. A quick inspection of Teachbook should have instantly ended the possibility of any user confusion about Facebook's sponsorship or affiliation.

The court then goes off the rails when he discusses search engines. He tries to parse the abominal Seventh Circuit case Eli Lilly v. Natural Answers (the Prozac v. Herbrozac case) from over a decade ago. In the Eli Lilly case, the court inferred the defendant's bad faith from the defendant's inclusion of the plaintiff's trademark in the metatags. This is one of the classic judicial freakouts about metatags; fortunately, most judges have learned a lot about Internet search since then, but this judge is still stuck in the 1990s. The judge thinks the "Teachbook" domain name could serve as the functional substitute for metatags and therefore supports the same inference of bad faith:

It is reasonable to infer from the complaint that the same thing may be happening here, albeit with website domain names rather than meta tags. Indeed, one can imagine teachers searching the internet for www.facebook.com and hitting upon www.teachbook.com. And even though these same teachers might also read Teachbook's attempt to define itself as an alternative to Facebook, the initial interest stems from the goodwill associated with Facebook, not Teachbook.

Uh, no. I can't think of any reasonably likely keyword search for "Facebook" or any variation thereof that is likely to produce the Teachbook search result anywhere in the top 100 search results (except, perhaps, for stories about this lawsuit). And relying on initial interest confusion is a joke; check out the Google search results for "Teachbook" and see if you can find any reason to think initial interest confusion (whatever that means) will occur. Plus, the initial interest confusion doctrine is typically an analytical crutch for plaintiffs' lawyers and judges who can't think of any real justifications for their decisions. Finally, just up above, the court had said that the risk was people browsing to Teachbook instead of getting there via search engines; now, the judge is worried about search engines. Which is it, judge?

The judge wraps up his misguided likelihood of confusion discussion by assuming that teachers are idiots:

Furthermore, who is to say these teachers might not think that Teachbook is Facebook's response to some schools banning teachers from using Facebook? In light of such policies, a reasonable consumer might assume that Facebook was offering social networking services targeted specifically at teachers and addressing the privacy concerns at which the schools' policies are apparently aimed. The same consumer might further assume that Facebook, in order to draw on its famous name, decided to call that service TEACHBOOK. Indeed, nothing in the statement from Teachbook's website indicates that this is not the case.

It's true that if judges keep giving Facebook trademark protection for the suffix "book," the world will assume Facebook owns all brand extensions of "-book." This is a classic bootstrap of weak trademark rights into powerful ones. But judges could just as easily reverse that presumption by authorizing Lamebook and Bearbook and Teachbook and all of the other legitimate derivations of the suffix "book." Hey judge, we trust teachers to teach our kids; I think we can trust them to figure out the differences between Teachbook and Facebook (although I'd venture a guess that even a second grader would have zero difficulty distinguishing between Facebook and Teachbook).

Trademark Dilution

The court shoots down Teachbook's argument that "Teachbook" and "Facebook" are too dissimilar to create dilution. The court logically cites Levi Strauss & Co. v. Abercrombie & Fitch Trading Co., 633 F.3d 1158 (9th Cir. 2011), but that case has really ripped open the door for trademark dilution claims for dissimilar marks. The court then says Facebook sufficiently alleged blurring to let this claim continue.

I wonder about Facebook's dilution posture given the dozens (hundreds? thousands?) of third party precedent trademarks with the term "book" in them, suggesting that Facebook itself has a narrow range of protectable interests. Further, Facebook might be exposing itself to greater dilution risk from other famous trademark owners with "book" in their trademarks who might have dissimilar marks but could claim Facebook is blurring theirs. It seems to me that Facebook is playing with fire here--not that such risks are likely to deter Facebook in its highly aggressive quest to own "face" and "book."

Conclusion

Good judges can adjust their evaluation to the legal standard at issue, i.e., the presumptions are often against the defendant on a motion to dismiss, but the plaintiff has a greater burden of persuasion at later stages in the case. If the judge modulates his standards, this opinion doesn't necessarily portend doom for Teachbook. But if that modulation doesn't happen (and potentially even if it does), this opinion clearly indicates that Teachbook is in deep, deep trouble with this judge.

This opinion trots out some moldy oldie Seventh Circuit freakouts about the Internet, such as the Eli Lilly case and the eminently mockable Promatek v. Equitrac case. In light of the Ninth Circuit's Network Automation case, I'm wondering if Teachbook would actually have had more favorable precedent in the Ninth Circuit rather than moving the case back to the Seventh Circuit. Something for future trademark defendants to think about.

Posted by Eric at 11:40 AM | Evidence/Discovery , Search Engines , Trademark | TrackBack

September 30, 2011

Pennsylvania Appeals Courts Says no to Circumstantial Authentication of Text Messages -- State v. Koch

[Post by Venkat Balasubramani]

State v. Koch, 2011 PA Super 201 (Sept. 16, 2011)

Courts continue to struggle with the authentication of electronic communications. Although several courts have opined that the rules of authentication are not upended by new technologies and modes of communication, courts tend to be erratic about authentication and admission of this type of evidence.

In this case, the defendant was convicted of possession of marijuana with intent to deliver and possession as an accomplice. She was sentenced to 23 months of probation. The evidence revealed that she resided with her brother (who was allegedly selling cocaine) and her paramour. Police officers obtained a warrant to search her residence and obtained drugs, paraphernalia, baggies and other items. The search also yielded two cell phones, one of which the defendant admitted was hers. One of the detectives searched the defendant's cell phone for drug-related messages, and found thirteen messages that the detective determined were "drug-related." Although the defendant did not admit to authoring the messages, the messages were introduced into evidence. The key issue on appeal was whether the messages were sufficiently authenticated.

The court reiterates its earlier statement that there is nothing "inherently unreliable" about emails or text messages and there is no need to create new rules governing the admissibility of this type of evidence. The court looks to case law from other jurisdictions allowing the admission of text messages and concludes that in those cases, there was more than mere "confirmation that the number or address belonged to a particular person [in question]." As a prerequisite to admission, courts have looked to whether the messages themselves contain "factual information or references unique to the parties involved." The key issue is authorship and while an email address or number can be tied to one person, often more than one person uses an email address (email addresses can also be accessed without permission). The court says that text messages have unique attributes that affect their evidentiary treatment:

Text messages are somewhat different in that they intrinsic to the cell phones in which they are stored. While e-mails and instant messages can be sent and received from any computer or smart phone, text messages are sent from the cellular phone bearing the telephone number identified in the text message and received on a phone associated with the number to which they are transmitted. The identifying information is contained in the text messages on the cellular telephone. However, as with e-mail accounts, cellular telephones are not always exclusively used by the person to whom the phone number is assigned

Here, the detective testified that he could not be sure that the defendant authored the messages in question and the content of the messages themselves (they referred to the defendant in the third person) indicated that it was unlikely that the defendant authored some of the messages. The court says that the messages were not sufficiently authenticated. There was no testimony from the recipients or an admission from the defendant that the defendant authored the messages. Contextual clues as to authorship were absent. The court finds that the messages were not properly admitted.

The court also finds that the messages were inadmissible hearsay. The prosecution tried to argue that the messages were not being offered for the truth of the matter, but the court rejects this argument. The court says that the messages could have been admitted under the party admission exception, but given that there was a dispute as to whether the defendant authored the messages, this was not proper.

__

Circumstantial authentication decisions tend to be confusing. Some courts have allowed circumstantial authentication while other courts have said no. For example, in Commonwealth v. Purdy, the Massachusetts Supreme Court says yes to circumstantial authentication of emails based on ownership of a computer (and left it up to the defendant to explain any dispute over actual authorship). In contrast, in Griffin v. Maryland the Maryland Supreme Court said no to circumstantial authentication of MySpace evidence, based in part over concerns that social networking profiles can be faked or altered without permission.

I would think that as between an email, a Facebook profile or message, or a text message, a text message is the least likely to be subject to a dispute over authorship. As the recent incident involving cell phone photos of Scarlett Johannson illustrates, cell phones are not immune from hacking. Nevertheless, fake text messages are certainly less common than fake social networking profiles, and once it's established that the putative author was tied to the telephone number in question, it would seem that it should be up to that person to explain away any discrepancy. I would guess that most often, the reason why a text message may be sent by someone other than the owner of the telephone number in question would be because the owner implicitly or explicitly allowed another person to use their cell phone to send a message. This is not the case with Facebook posts, or even emails. In any event, in this case, the court chose to impose a higher standard and require evidence as to actual authorship, even though there was no dispute that the number was tied to the defendant.

(h/t ABA Journal)

Posted by Venkat at 03:52 PM | Evidence/Discovery

August 23, 2011

Consumer Reviews at "Local" Review Sites Don't Support Jurisdiction--Wilkerson v. RSL

By Eric Goldman

Wilkerson v. RSL Funding, LLC, 2011 WL 3516147 (Tex. App. Ct. Aug. 11, 2011)

It doesn't bring me a lot of joy to blog another Internet jurisdiction case, but the dispute's substantive issues are important enough to blog this case.

Wilkerson's daughter won the California lottery. RSL approached her to buy the future payouts for a lump sum. The daughter took RSL's deal, but things didn't go well. In response, her dad posted negative reviews of RSL at Yahoo Local and Yelp. In both cases, the review pages allegedly indicated RSL's location, and Wilkerson's reviews indicated he knew the company was located in Houston. He also tried to drum up interest in a class action suit. RSL sued in Texas state court, and Wilkerson interposed a jurisdictional defense.

The majority starts by wisely bypassing the Zippo test. For the number of times it's cited, the Zippo test is often unhelpful and unenlightening. Citing several cases, the majority says the Zippo test would apply to the review site operator but not an individual reviewer:

to the extent that the interactive features of Yahoo! and Yelp are the creations of the owners and operators of those websites, the interactive nature of a large-scale ubiquitous internet presence cannot be fully imputed to an individual user such as Wilkerson for the purpose of determining whether he established minimum contacts with Texas sufficient to justify exercising jurisdiction over him....Thus for purposes of analyzing personal jurisdiction over an individual in a case arising from his internet activity, we decline to reflexively apply the sliding-scale analysis of the interactivity of a commercial internet website to determine jurisdiction over the individual website user.

Amen. This year I added the Illinois v. Hemi 7th Circuit jurisdictional ruling, where the court expressly rejected the Zippo test. Perhaps we're seeing the leading edge of anti-Zippo trend. Personally, I wouldn't shed a tear if the Zippo test were retired--permanently.

The majority instead turns to the "purposeful availment" test. The majority cites the Calder v. Jones case and notes that it looked at the "effects" of the defendant's action, but it doesn't call its test the "Effects test," and I think that affects the result. A consumer reviewer doesn't avail itself of the laws of the state its target is located in, but it might intentionally cause tortious effects in the state. I think the majority mucked this distinction. For example, the majority says:

The evidence merely shows that he performed an internet search for RSL, and that he posted reviews and comments on two different websites where he found an opportunity to do so. Wilkerson made only one express reference to RSL's presence in Texas, stating in his Yahoo! review that phone calls made to offices other than RSL's Houston office are transferred to Houston.

For many courts, this would be enough to satisfy the Effects Test; but it's useless to a purposeful availment test. The dissent points out the problems with the majority's (non-)test.

The majority says that it can't impute the review sites' or review readers' actions against Wilkerson. So even if the review sites aggregate local content that's likely to be read by local readers, the court says it can ignore that. The majority also rejects a lot of RSL's evidence showing geographic intent, saying it wasn't properly authenticated. On that point, the majority says:

The present-day reality of the ever-evolving internet is that the content seen by any particular user is often customized by the website based on the geographic location of the person viewing the website, or the geographic location of the same person's computer servers, or other characteristics associated with the person visiting the webpage. Jurisdiction therefore may not be exercised over a nonresident user based on his use of a website based upon the mere evidence that the website incorporated Texas-related content of an unknown origin, particularly when that evidence only shows the website's content as viewed by a different user at a later time in a presumably different location.

I love this sentiment! Content views may be customized, and it is the responsibility of the plaintiff to address that possibility. I'm glad the majority is asking these kinds of questions. However, under the Effects Test, properly applied, none of this matters. If the plaintiff can show what readers in its local trading area saw, it can show what effect the content may have on those readers. As the dissent says:

Wilkerson's posts were made on websites that distribute reviews of local Houston businesses, specifically referred to RSL's Houston office and to specific employees in the Houston office, made factual statements that complained of RSL's Texas activities as a provider of financial services, and were directed to a medium that would be more likely to reach Texas readers than readers in other states, specifically including actual and potential customers of RSL and of other financial services providers in the Houston area. Furthermore, Texas was the focal point of Wilkerson's posts and of any harm suffered.

Although the majority's analysis is clearly off, it's hardly unprecedented that courts are denying jurisdiction over allegedly defamatory reviews. See the list below. I just wish we had a reliable jurisdictional test that reached that result so we could get there without doctrinal hashes.

I'm not sure where this ruling leaves RSL. Texas just enacted a new anti-SLAPP law with some teeth, so RSL may not want to be in Texas courts anyway. On the other hand, if RSL moves the lawsuit to California, it will run into California's strong anti-SLAPP law. RSL's business is risky enough; perhaps RSL shouldn't gamble any more with potential SLAPPs!

For an example of a more traditional ruling involving a more engaged campaign by the defendant, see Chambers v. Chambers, 2011 WL 3512140 (D. Md. Aug. 8, 2011):

Under the facts alleged, Defendants intentionally directed electronic activity into Maryland with the purpose of causing injury to a Maryland resident. See Silver v. Brown, 382 F. App'x 723, 729–730 (10th Cir. 2010) (holding that defendant's blog, set up in direct response to a business deal and accusing plaintiff of wrongdoing, constitutes an intentional act expressly aimed at the forum state with knowledge that the injury would be felt in that forum). They posted on websites, sent emails to Maryland residents, and created blogs that all contain information regarding a Maryland estate proceeding. Dennis Chambers intentionally sought out Maryland residents when making the alleged defamatory statements about Plaintiff in an effort to harm her reputation. Bonnie Chambers created “HonestChief?” to publicize the Orphans Court case and her disagreement with Plaintiff's handling of it, as evidenced by the blog's content and by the consistent posting of its URL on websites with notably large audiences. These activities go beyond merely “placing information on the Internet.” ALS Scan, 293 F.3d at 712. The manifested intent of Defendants' alleged conduct is to reach Maryland citizens—including Plaintiff--creating a cognizable cause of action in Maryland. See ALS Scan, 293 F.3d at 712. Under the alleged facts, Defendants must “reasonably anticipate being haled into court [here] to answer for the truth of [their] statements.” See Calder, 465 U.S. at 790. Accordingly, Defendants' motion to dismiss for lack of personal jurisdiction will be denied.

Related posts:

* Two Recent Social Media Defendants Avoid Personal Jurisdiction
* Web Host Gets Easy 47 USC 230 Win in Catfight--Johnson v. Arden
* Three Gripers Get Disadvantageous Jurisdictional Appellate Rulings in Defamation Cases
* Ripoff Report Sues Blogger, Loses on Jurisdictional Grounds--Xcentric Ventures v. Bird
* Defamation Lawsuit Against Blogger Dismissed on Jurisdictional Grounds--Fahmy v. Hogge
* Connecticut Blogger Not Subject to Texas Jurisdiction--Healix Infusion v. Helix Health
* Blog Defamation Lawsuit Lacks Jurisdiction--TrafficPower.com v. Seobook.com

Posted by Eric at 01:56 PM | Content Regulation , Evidence/Discovery | TrackBack

August 19, 2011

Connecticut Court of Appeals Tackles Authentication of Facebook Messages -- State v. Eleck

[Post by Venkat Balasubramani]

State v. Eleck, (AC 31581 (Conn. Ct. App. Aug 9, 2011)

There have been several recent cases that deal with the authentication of social networking evidence. The Connecticut Court of Appeals recently tackled the issue of whether Facebook messages were properly authenticated. Despite the proffer of circumstantial evidence which tended to show that the messages were authored by the person in question, the court holds that the messages were insufficiently authenticated and therefore properly excluded.

The defendant was charged for assault over an incident at a party. Simone Judway, one of the State's witnesses testified that she talked to the defendant prior to the altercation, and the defendant told her that "if anyone messes with me tonight, I am going to stab them." The defendant sought to impeach Judway's credibility and asked if she had spoken with the defendant following the incident. She said no. The defendant sought to undermine her credibility by showing that she had exchanged Facebook messages with the defendant.

The defendant introduced printouts from his Facebook page which contained messages purportedly from Judway. He also testified that he recognized Judway's Facebook user name (Simone Danielle) as Judway's and that Judway had added him as a Facebook friend shortly before the exchange of messages. Although Judway contested the defendant's claim that she authored the messages, she did not contest that the messages were sent through her Facebook account. She relied vaguely on the fact that her account may have been hacked:

While admitting that the messages were sent from her Facebook account, she simultaneously denied their authorship. She also suggested the she could not have authored the messages because the account had been 'hacked.'

The court notes that the existing rules are sufficient to deal with evidentiary issues raised by social networking evidence:

[w]e see no justification for constructing unique rules for admissibility of electronic communications such as instant messages; they are to be evaluated on a case-by-case basis as any other document to determine whether or not there has been an adequate foundational showing of their relevance and authenticity.

The court also went on to say that circumstantial authentication of these types of messages may be appropriate. Nevertheless, the court held that it was proper for the trial court to exclude the evidence. Strangely enough, the court is skeptical of the argument that the messages were not sufficiently authenticated because the account may have been hacked, but still says that it was up to the defendant to put forth additional evidence to rebut this argument:

Although this suggestion is dubious under the particular facts at hand, given that the messages were sent before the alleged hacking of the account took place, Judway's testimony highlights the general lack of security of the medium and raises an issue as to whether a third party may have sent the messages via Judway's account. Consequently, we agree with the trial court that the fact that Judway held and managed the account did not provide a sufficient foundation for admitting the printout, and it was incumbent on the defendant . . . to advance other foundational proof to authenticate that the proffered messages did, in fact, come from Judway and not simply from her Facebook account.

I blogged about a Maryland case where the Maryland Supreme Court rejected circumstantial authentication of MySpace evidence ("Maryland Supreme Court Rejects "Circumstantial Authentication" Standard for MySpace Evidence"). Although the court in this case pays lip service to circumstantial authentication, it looks like the court has similar skepticism towards the authenticity of this type of evidence. It was fairly surprising that the court bought the argument that the account may have been hacked, and did not rule that this was a credibility issue for the factfinder. Perhaps this is a testament to how widespread Facebook account hacks are perceived to be.

Previous posts:
* Maryland Supreme Court Rejects "Circumstantial Authentication" Standard for MySpace Evidence -- Griffin v. Maryland
* Massachusetts Supreme Court Finds Email Sufficiently Authenticated Based on Surrounding Evidence

Posted by Venkat at 12:20 PM | Evidence/Discovery

July 20, 2011

P2P Swarm Defendants Can't Be Joined in the Same Lawsuit -- Pac. Century Int'l Ltd. v. Does

[Post by Venkat Balasubramani]

Pacific Century International Ltd. v. Does, C-11-02533 (DMR) (N.D. Cal. July 8, 2011)

There have been a slew of recent procedural rulings in mass copyright cases, with plaintiffs mostly getting smacked down by courts. Plaintiffs have tried to sue defendants en masse in a single lawsuit and courts have been unreceptive to this idea. One open question was whether P2P "swarm" defendants can be sued in the same lawsuit because of defendants' interactions with one another in downloading or distributing the same copyrighted work. In this case, the court says no, and sua sponte, severs a bunch of Doe defendants from the lawsuit.

Pacific Century International sued a hundred and one Doe defendants in the Northern District of California, alleging that defendants reproduced and distributed plaintiff's copyrighted work titled "Amateur Cream Pies -- Erin Stone." Plaintiff requested leave to take early discovery. The court approved the request for early discovery, but had questions about the propriety of joining Does 2 through 101 in the same lawsuit. Plaintiff offered the following explanation, and argued that all defendants should be joined together because they were all part of the same BitTorrent "swarm":

the [BitTorrent] protocol breaks a single large file into a series of smaller distributable pieces. Then, an initial file-provider (the "seeder") intentionally elects to distribute the pieces to third parties. . . . Other users ("peers") on the network download a small "torrent" file that contains directions on where to find the seeder as well as an index of the pieces. The torrent file is loaded into BitTorrent software, and the software follows the directions in the torrent file to connect to the seeder. When peers connect to the seeder, they download random pieces of the file being seeded. When a piece of download is complete, the peers automatically become seeders with respect to the downloaded pieces. In other words, each peer in a swarm transforms from a pure downloader . . . to a peer that is simultaneously downloading and distributing pieces of a file.

Plaintiff essentially argued that since all of the defendants worked together to download and distribute a copyrighted work, Plaintiff's claims arose out of the "same transaction." The court disagreed, noting that just because the Doe defendants happened to download or distribute the same copyrighted work does not mean that they were involved in the same swarm. For example, one defendant may distribute a low definition version of a video while another may distribute a high definition version. The court says:

[t]hat BitTorrent users have downloaded the same copyrighted work does not, therefore, evidence that they have acted together to obtain it.

Although plaintiff alleged that the Doe defendants were all involved in a civil conspiracy, the court concludes that plaintiff "failed to demonstrate that it has any right to relief against [Defendants] . . . . arising out of the same transaction, occurrence, or series of transactions of occurrences."
__

Ouch! As a bonus, although the court authorizes early discovery, it directs the ISP in question to provide the affected subscriber (Doe 1) with notice of the subpoena, and gives Doe 1 an opportunity to object.

This is just one more decision of many recent decisions where courts push back using procedural rules on copyright plaintiffs who are trying to sue multiple defendants in the same lawsuit. (See, e.g., "Judge Tells John Steele To Stop Mass Suing Anonymous People For File Sharing.") In addition to the problem highlighted by the court, there is one other obvious problem with suing a bunch of unidentified defendants in a single forum. You have no idea where the defendant is based and whether they're subject to jurisdiction in the forum. Most people view the mass lawsuits as an efficiency play by plaintiffs, at the expense of procedural rules and defendants' rights. I haven't been keeping a close tally, but it's clear that at least some judges are starting to push back on this tactic.

Strangely, some recent copyright plaintiffs don't seem to pick up on the subtle messages that courts send in their rulings. As a litigant, you don't want to blindly accept a judge's procedural rulings and directives, but you also want to pick your battles. One or two decisions out of ten is probably worth fighting over, and if the ruling is one that involves some exercise of the judge's discretion, you probably want to consider following the path laid out by the judge. Copyright plaintiffs don't seem to view things this way, and resist every single adverse decision issued by judges. Righthaven is probably the most prominent example of this, as extensively catalogued by Eric and others. We'll see what happens in this case.

(h/t Ray Dowd)

Posted by Venkat at 12:05 PM | Copyright , Evidence/Discovery

July 12, 2011

Court Orders Plaintiff to Turn Over Facebook and MySpace Passwords in Discovery Dispute -- Zimmerman v. Weis Markets, Inc.

[Post by Venkat Balasubramani]

Zimmerman v. Weis Markets, Inc., CV-09-1535 (Pa. Ct. Common Pleas; May 19, 2011)

Courts continue to struggle with the discoverability of social network evidence in civil cases and the logisictal problems posed by these discovery disputes. In this case, the court orders the plaintiff to turn over his Facebook and MySpace passwords to defendant.

This was a personal injury case where plaintiff sued Weis Markets for injuries he suffered on the job. Weis Markets had a contracting relationship with plaintiff's employer. Plaintiff sought damages for physical injuries, but also for "suffering, scarring and 'embarrassment'."

Weis Markets reviewed the publicly available portions of plaintiff's Facebook and MySpace pages and discovered a bunch of clearly relevant evidence: (1) photographs of the plaintiff with a black eye, before and after the accident; (2) photographs of the plaintiff wearing shorts, which he claimed he was too embarrassed to do because of the accident, and (3) the fact that plaintiff listed "ridin" and "bike stunts" as interests.

The court weighs plaintiff's privacy arguments and finds that they are insufficient to overcome defendant's need for the requested information. Quoting Romano v. Steelcase, the court notes that refusing the discovery request would:

condone Plaintiff's attempt to hide relevant information behind self-regulated privacy settings.

The court also relies on the fact that Facebook's terms do not guarantee privacy (regardless of what Facebook may say):

It is well publicized that Facebook's privacy policy and its revisions have been the subject of criticism and controversy that may be never ending. One need only "Google" search the terms "Facebook privacy" for an exhaustive list of . . . articles on the topic.

Ouch! The court also drops in a warning to social networkers everywhere that the details you share with your social circle are not magically off-limits in litigation:

By definition, a social networking site is the interactive sharing of your personal life with others; the recipients are not limited in what they do with such knowledge. With the initiation of litigation to seek a monetary award based upon limitations or harm to one's person, any relevant, non-privileged information about one's life that is shared with others and can be gleaned by defendants from the internet is fair game in today's society.

The court orders plaintiff to turn over his log-in information for all MySpace and Facebook accounts and also orders plaintiff to not delete or alter "existing information and posts" on those accounts.

__

I don't have a good solution to the logistical problem posted by this discovery dispute, but I'm convinced that forcing a party to hand over his or her log-in information is not the correct result. Problems with this approach are legion, starting with the fact that the party seeking discovery will undoubtedly be exposed to irrelevant, non-discoverable information that may be private, intimate, or embarrassing. There's a chance that attorney/client privileged communications can be exposed. There's the possibility that the party who gets access to the profiles may alter or delete information unwittingly, or change settings. Then there's also the thorny Stored Communications Act issue, which prevents the party from seeking any private communications directly from the social networking site by means of a subpoena. Is court ordered disclosure of the log-in information an end-run around the Stored Communications Act?

Interestingly, in the criminal context, a district court is currently considering whether a defendant can be compelled to reveal a decryption password. ("DOJ: We can force you to decrypt that laptop.") Whether the government can force you to reveal your encryption password depends on different standards than those applicable to a civil discovery matter, but there are still interesting parallels.

A better approach is to generate some sort of inventory of the page, similar to a privilege log. Of course, this runs in to the problem that it relies on the good faith of the party who creates the inventory. An alternative is for the court to conduct in camera review. The court rejects that proposal outright here, saying that this would be "an unfair burden to place on the court, which would not only require the time and resources necessary to complete a thorough search of these sites, but also require the court to guess as to what is germane to defenses which may be raised at trial."

Finally, I'm not sure what to make of the court's directive to the plaintiff to not alter or delete "existing information or posts" on his Facebook and MySpace accounts. I guess you could imply a "relevant to the dispute" limitation onto this, but the court does not include such a limitation here, and it's overly broad for the court to order the plaintiff to not delete or alter any of the content in his accounts.

Additional coverage:

Pa. Court Finds Facebook Posts to be Discoverable Evidence

Previous posts:

Facebook Messages/Wall Posts, Civil Discovery, and the Stored Communications Act -- Crispin v. Audigier (June 2, 2010)
Judge Offers to Facebook 'Friend' Witnesses in Order to Resolve Discovery Dispute -- Barnes v. CUS Nashville (June 9, 2010)
Deleted Facebook and MySpace Posts Are Discoverable--Romano v. Steelcase (Sept. 29, 2010)
Court Orders Disclosure of Facebook and MySpace Passwords in Personal Injury Case -- McMillen v. Hummingbird Speedway (Oct. 24, 2010)
Plaintiff Can't be Forced to Accept Defense Counsel's Facebook Friend Request in Personal Injury Case -- Piccolo v. Paterson (May 19, 2011)
Court Conducts in camera Review of Plaintiff's Facebook Page to Resolve Discovery Dispute -- Offenback v. Bowman (June 24, 2011)

Posted by Venkat at 08:55 AM | Evidence/Discovery , Privacy/Security

June 28, 2011

San Diego County Bar Tackles Lawyer Friend Requests and the Ex Parte Rule

[Post by Venkat Balasubramani]

The San Diego County Bar Association recently tackled the issue of whether a lawyer's friend request to an employee of a party violates the rule barring ex-parte communications by a lawyer with a party whom the lawyer knows or should know is represented by counsel. You can access the opinion on Scribd here, and it's worth a read.

The factual scenario involved a lawyer who represented a plaintiff against a company in a wrongful discharge lawsuit. The lawyer knows the defendant-employer is represented by counsel, but obtained a list of the defendant's current employees. The client provides the list, identifying which of those employees may be disgruntled and therefore likely to provide dirt on the defendant-employer. The lawyer then sends Facebook friend requests to these individuals.

The opinion looks to California Rule 2-100, which provides that:

While representing a client, a [lawyer] shall not communicate directly or indirectly about the subject of the representation with a party the [lawyer] knows to be represented by another lawyer . . . unless [the other lawyer first consents].

The opinion first tackles the issue of whether the employees are "parties" for purposes of the rule. If they exercise discretion and determine the employer's policy, they may be treated as part of the represented corporate-party for purposes of this rule. Consequently, the opinion advises that the lawyer should first check with his or her client as to what role the employees play in the organization before treating the employees as unrepresented parties. Assuming they are policy-making employees and therefore "represented," the opinion looks to whether the lawyer's friend request constitutes a communication "about the subject of the representation." The opinion parses the language of the friend request and the fact that it's initiated by the lawyer but transmitted by Facebook, and concludes that the friend request would violate the rule against ex parte contact:

[i]f the communication to the represented party is motivated by the quest for information about the subject of the representation, the communication . . . is about the subject matter of that representation. . . . This becomes clearer when the request to friend . . . is transferred from the virtual world to the real world. Imagine that instead of making a friend request by computer, opposing counsel instead says to a represented party in person and outside of the presence of his attorney: "Please give me access to your Facebook page so I can learn more about you." That statement on its face is no more "about the subject of the representation" than the robo-message generated by Facebook. That what the attorney is hoping the other person will say in response to that facially innocuous prompt is "Yes, you may have access to my Facebook page. Welcome to my world. These are my interests my likes and dislikes, and this is what I have been doing and thinking recently.

The opinion also addresses a few objections:

The friend request does not refer to the issues raised by the representation: With respect to this objection, the opinion notes that even open-ended questions can "impel the other side to disclose information that is richly relevant to the matter," even if the question itself is directed to a subject relating to the representation. Information "uncovered in the immediate aftermath of a represented party's response to a friend request at least 'might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof.'" Although the initial friend request may not relate to the representation, it's the type of open-ended question that is designed to elicit a response that provides useful information. Indeed, the opinion notes that once you have become a person's Facebook friend, you have access to a wealth of information regarding that person, including information that will potentially be advantageous to know in litigation.

Friending a represented party is the same as accessing the opposing party's website: The second objection argued that accessing a publicly available website of a party who is represented is permitted, and this is no different. The opinion states that there is a key difference between the two. In one instance the webpage is publicly accessible, and in the other, you need permission--acceptance of the friend request--in order to access it. The opinion concludes that if a witness or opposing party maintains a profile on a social network that is freely accessible by the general public, there is no ethical bar to its access by a lawyer.

The opinion also dismisses a couple of other objections: (1) statements in a Facebook profile are not necessary protected by the attorney/client privilege (the restriction on ex parte contact goes beyond this information), and (2) courts have rejected deception as the basis for excluding evidence in the criminal context (the standards for when evidence should be excluded in a criminal case are not the same as those which prohibit ex parte contacts in civil cases). The opinion notes that the policy underlying the rule prohibiting ex parte access is to restrict the opposing lawyer from interfering in an existing lawyer/client relationship and exerting undue influence through this interference. The tenor of the opinion is that this risk of undue influence clearly exists in the context of a Facebook "friendship."

The opinion raises some interesting issues and takes a careful look at the rules and other opinions on this issue. (The Philadelphia Bar Association and the New York State Bar Association have both weighed in on this issue as well.) The opinion cites to another case (U.S. v. Sierra Pacific Industries, 2010 WL 4778051 (E.D. Cal. 2010)) where the court held that a lawyer who was litigating a claim against the U.S. Forest Service violated the ex parte rule when he attended a "field trip" organized by the Forest Service and extensively questioned Forest Service employees on their policies. The field trip was open to the public and thus mere attendance did not violate the rule. The court focused on the questioning, rather than the attendance. In contrast, here, the opinion concludes that merely sending a friend request could violate the rule.

I wonder whether the result would have been different if the lawyer in question sent a friend request that expressly addressed the ex parte issue--e.g., "I'm John Doe, counsel for Jane Doe, and I'd like to speak with you about this matter. If you are represented by counsel, please do not accept this friend request."

The opinion serves as a good reminder that despite the treasure trove of evidence that may be contained in social media profiles, accessing this information is another matter.

(h/t ABA Journal: "Facebook Friend Request to Exec of Represented Corp. May Violate Ex Parte Rule, Opinion Says")

Posted by Venkat at 02:25 PM | Evidence/Discovery , Privacy/Security

June 24, 2011

Court Conducts in camera Review of Plaintiff's Facebook Page to Resolve Discovery Dispute -- Offenback v. Bowman

[Post by Venkat Balasubramani]

Offenback v. Bowman, 10-CV-1789 (M.D. Pa.; June 22, 2011)

Background: Discovery disputes over Facebook accounts and whether they are discoverable in civil cases are piling up. Courts and litigants continue to grapple with the central problem that even to the extent the information is properly discoverable, at least some portion of a litigant or party's Facebook's account deserves privacy protection and should also be protected by federal statutes such as the Stored Communications Act. On the other hand, an opposing litigant needs to get access to the Facebook profile in order to determine whether something contained in the account is relevant, in order to articulate a "likely to lead to the discovery of admissible evidence" argument.

Courts have come up with interesting and mostly imperfect ways to solve this problem. In one case, a court suggested that the litigants "friend" the court so the court could review the contents of the account which would be visible to the witness's friends. ("Judge Offers to Facebook 'Friend' Witnesses in Order to Resolve Discovery Dispute.") In this case, the court conducted an in camera review of the plaintiff's Facebook profile and determined what information was discoverable.

The facts follow a familiar pattern. Plaintiff suffered a car accident, and sued, alleging he suffered physical and psychological injuries. He claimed that these physical injuries limited:

his ability to sit, walk, stand, ride in a vehicle, bend, stoop, push, pull, and lift. He claimed that he could not drive for any period of time and is physically limited as to riding his bicycle or motorcycle.

Defendant sought access to plaintiff's Facebook and MySpace accounts. The court asked for plaintiff's log-in information for these accounts. Plaintiff provided the Facebook password but said "he could no longer locate information related to his MySpace account, since he had neither activated nor used the account since November 2008." [Ouch! Plaintiff is not alone, this BusinessWeek article notes that even one of the co-founders of MySpace no longer checks his MySpace account: "The Rise and Inglorious Fall of MySpace."]

Discussion: The court reviews plaintiff's Facebook page and concludes that the bulk of the material there is unrelated to the accident and not discoverable. There were a few items that were discoverable and these included:

- photos of plaintiff taking numerous motorcycle trips;
- photos of plaintiff hunting;
- photos and comments suggesting that plaintiff "may have recently ridden a mule";
- comments confirming plaintiff's continued interest in riding motorcycles.

The rest of the page contained information that was not discoverable--such as "routine communications" with family and friends, and expressions of plaintiff's interests and hobbies. [The court notes that plaintiff had a passion for the Philadelphia Phillies "which was not dampened after he moved to Kentucky from Pennsylvania."]
___

The court drops a footnote in the order, knocking the parties for getting the court involved in this discovery dispute. Plaintiff conceded that some of the information in the Facebook profile was discoverable. Defendants appeared to have backed away from their initial position that all of the information was discoverable, but they did not actually narrow their discovery requests to the items that plaintiff admitted were discoverable. Translation: the parties ended up wasting the court's time, and should have worked it out themselves.

It still feels awkward that the court took the approach of actually logging in to plaintiff's Facebook account using plaintiff's password. Isn't this a violation of the Facebook terms of service?

There's another issue lurking in the background of these disputes that courts will be forced to confront: can a party be forced to consent to disclosure of information that falls under the Stored Communications Act? No case has directly confronted this question, although one court has held that a party's default and fugitive status is not consent. (See "Being a Fugitive is Not Consent for Production under the Stored Communications Act.")

Earlier related posts:
"Judge Offers to Facebook 'Friend' Witnesses in Order to Resolve Discovery Dispute -- Barnes v. CUS Nashville"
"Court Orders Disclosure of Facebook and MySpace Passwords in Personal Injury Case -- McMillen v. Hummingbird Speedway"
"Plaintiff Can't be Forced to Accept Defense Counsel's Facebook Friend Request in Personal Injury Case -- Piccolo v. Paterson"

Posted by Venkat at 09:45 AM | Evidence/Discovery , Privacy/Security

May 21, 2011

Massachusetts Supreme Court Finds Email Sufficiently Authenticated Based on Surrounding Evidence -- Commonwealth v. Purdy

[Post by Venkat Balasubramani]

Commonwealth v. Purdy, 2011 WL 1421367 (Mass.; Apr. 15, 2011)

Defendant was prosecuted and convicted for maintaining a house of prostitution and deriving support from the earnings of a prostitute. The trial judge admitted various emails allegedly authored by the defendant. The emails related to the massage service offered by the defendant. Predictably, one of the emails had the cliched "personal assistant with benefits?" subject line.

Defendant objected to admission of the emails on the basis that the emails were not properly authenticated as having been authored by him. Defendant did not contest that the emails came from the computer which was seized from the premises in question following defendant's arrest. Defendant pointed out that he shared his computers with others at the salon and denied authoring the emails. The prosecution had put forth evidence that the emails originated from an email address that bore defendant's name, and that defendant was able to recite (from memory) the passwords necessary to access the computer and its programs. The emails had additional characteristics that indicated that they were likely to have been authored by the defendant. For example, one of the emails had the defendant's picture attached to it.

The court rules that admission of the emails was not improper and there was sufficient evidence to let the jury determine if the emails were authored by the defendant. The court cites to other cases dealing with circumstantial authentication such as phone calls and letters, and notes that the principles remain the same with respect to email or social networking evidence:

While emails and other forms of electronic communication present their own opportunities for false claims of authorship, the basic principles of authentication are the same. Evidence that the defendant's name is written as the author of an email or that the electronic communication originates from an email or a social networking website such as Facebook or MySpace that bears the defendant's name is not sufficient alone to authenticate the electronic communication as having been authored or sent by the defendant. There must be some "confirming circumstances" sufficient for a reasonable jury to find by a preponderance of the evidence that the defendant authored the emails.

The court concludes that those additional "confirming circumstances" were present here. The emails originated from an account bearing defendant's name and acknowledged to be used by the defendant. The emails were found on the hard drive of a computer the defendant acknowledged he owned. In addition, at least one email contained a photograph of the defendant.

The court contrasts this case with Commonwealth v. Williams, where the court held that MySpace messages were not property authenticated as having been authored by the defendant's brother. (Here's a previous blog post discussing Commonwealth v. Williams: "MySpace Evidence: Maryland Appeals Court Allows Circumstantial Authentication.") In that case, there was no testimony "regarding how secure a MySpace Web page is, who can access it, or whether codes are needed for such access." In addition, the author of the messages in Williams did not identify himself in the messages.
__

Social networking communications are subject to a different standard than other communications such as instant message conversations, text messages, and emails. It's unclear as to whether this is based on the view that anyone can create a social network profile in someone else's name, or whether a factfinder can more easily determine if the person who is alleged to have authored the communication actually did so, because emails and other communications often provide greater context. Courts have also alluded to the fact that it's often unclear who can post messages on a social networking site and therefore difficult to tell whether a particular message should be attributed to the person who owns the site or someone else.

In the context of email, it should be sufficient to show that the person "owned" the email account in question or that the emails were sent from a computer which the author owned. Here, it's conceivable that one of the defendant's co-workers (or underlings) may have sent the email, but the court's decision leaves it up to the defendant to explain this in order to rebut the claim of authorship.

Previous posts and related posts:

"Maryland Supreme Court Rejects "Circumstantial Authentication" Standard for MySpace Evidence -- Griffin v. Maryland"
"MySpace Evidence: Maryland Appeals Court Allows Circumstantial Authentication -- Griffin v. Maryland"

Posted by Venkat at 07:11 AM | Evidence/Discovery | TrackBack

May 19, 2011

Plaintiff Can't be Forced to Accept Defense Counsel's Facebook Friend Request in Personal Injury Case -- Piccolo v. Paterson

[Post by Venkat Balasubramani]

Piccolo v. Paterson, No. 2009-04979 (Pa. Ct of Common Pleas; May 5, 2011) [.pdf]

In addition to cases dealing with whether Facebook posts are discoverable in civil cases, courts and litigants continue to grapple with the logistical issues of how a party seeking such evidence can get access to it, or make arguments about whether or not they are entitled to access certain information contained in the profile.

Piccolo v. Paterson was a personal injury case where the plaintiff claimed she suffered lacerations to her face from the impact of an air bag. In her deposition, she was asked whether she posted pictures to Facebook and she said yes. Defense counsel asked if Piccolo would accept a "neutral" friend request from defense counsel so defense counsel could view the pictures. Piccolo later demurred, stating that the "materiality and importance of the evidence ... is outweighed by the annoyance, embarrassment, oppression and burden ...." Defense counsel brought a motion to compel. Defendant cited to McMillen v. Hummingbird Speedway, where the court ordered the plaintiff to provide his Facebook password to defense counsel.

The court rejected defendant's arguments, noting that defendant had already been provided an accurate photographic representation of the relevant evidence. As the Legal Intelligencer notes:

Piccolo [the plaintiff] allowed the insurer to come to her home in 2008 and take photographs of her face. She also gave the defense 20 photos of her face from the week following the accident as well as five photos from the months just before the accident. She allowed the defense to take more pictures at the September 2010 deposition.

Plaintiff's counsel argued that there was no showing from the defendant that plaintiff had posted photos which were inconsistent with what she alleged in the lawsuit, or that any of the other material in plaintiff's Facebook profile was in any way relevant to the case. The court granted plaintiff's motion in a brief one paragraph order which did not contain any reasoning, so it's tough to tell the precise basis for the court's decision.

It looks like litigants (or their lawyers) are overreaching when they seek social media evidence, and at least some courts are pushing back. (Plaintiff's lawyers are also starting to advise their clients as to the dangers of using social networking sites, at least during the pendency of ligitation. See "Social Networking Warning Letter Form for Clients.") In this case, there was little justification to force plaintiff to "friend" defense counsel and give defense counsel access to personal details that only plaintiff's Facebook friends would be privy to. There was some confusion as to whether plaintiff's profile was "public," so it's unclear as to whether defense counsel truly would be privy to information that only a select group of individuals would have access to. Regardless, given that defense counsel had access to ample photos of plaintiff's face from shortly after the incident, and was provided photos later, and could evaluate plaintiff's injuries contemporaneously, defendant didn't have a credible argument for rooting around in plaintiff's Facebook profile. As a Facebook friend, defense counsel would be exposed to information, including personal details about the plaintiff's life, that would not be relevant to the case.

I blogged about McMillen v. Hummingbird Speedway and had some qualms with the court's approach of forcing a litigant to turn over their Facebook password. Among other things, there is no way that all of the information in a profile could be relevant:

for starters, the court totally glosses over the relevance analysis. There is no way that all of the information in the plaintiff's social networking site can be relevant to the dispute, and the court's decision grants defendant access to both relevant and irrelevant information.

It looks like the court took the correct approach here.

In another decision addressing a similar issue, the court ordered the litigants to both friend the judge so the court could review the materials and address the question of relevance. ("Judge Offers to Facebook 'Friend' Witnesses in Order to Resolve Discovery Dispute.") That was a wacky approach to say the least, but it looked like the court did not even need to consider it in this case, given the lack of relevance of the materials which defense counsel was seeking.

Social networking evidence is generally viewed as an evidentiary treasure trove for lawyers, but as is becoming increasingly clear, it's easier said than done to get access to it. Statutes such as the Stored Communications Act restrict the networks' ability to disclose private communications, which may or may not include wall posts, in response a civil subpoena. An alternative is to get the information directly from the party in question, but if the party seeking the information doesn't know exactly what is in the profile, they will have a tough time articulating relevance.

As a final note, I wonder if there are any ethical issues lurking in the background for a lawyer who "friends" a party in order to gain access to evidence (even when there is no deception involved in the friending process).

Other coverage:
Legal Intelligencer: "Facebook Postings Barred From Discovery in Accident Case"
The Employer Handbook: "Court bars Facebook "friending" in discovery"

Previous posts:
"Court Orders Disclosure of Facebook and MySpace Passwords in Personal Injury Case -- McMillen v. Hummingbird Speedway"
"Judge Offers to Facebook 'Friend' Witnesses in Order to Resolve Discovery Dispute -- Barnes v. CUS Nashville"
"Facebook Messages/Wall Posts, Civil Discovery, and the Stored Communications Act -- Crispin v. Audigier"

Posted by Venkat at 08:30 AM | Evidence/Discovery , Publicity/Privacy Rights

May 02, 2011

Maryland Supreme Court Rejects "Circumstantial Authentication" Standard for MySpace Evidence -- Griffin v. Maryland

[Post by Venkat Balasubramani]

Griffin v. Maryland, No. 74 (Maryland; Apr. 28, 2011)

I blogged last year about a case in Maryland where the court allowed prosecutors to authenticate a witness's MySpace page merely by accessing it from the internet, printing it out, by testifying that the page contained a photo of the witness and bore the witness's birthdate. ("MySpace Evidence: Maryland Appeals Court Allows Circumstantial Authentication.") The trial court admitted the evidence and the intermediate appeals court held that the profile could be "circumstantially authenticated," and that it was up to the jury to determine whether or not the printout depicted the MySpace page of the witness. The State's highest court* disagreed, and held that the MySpace printout was not properly authenticated, and remanded for a new trial.

Background: The defendant was convicted of murder. His first trial ended in a mistrial. At the second trial, one of the witnesses changed his testimony, and in order to explain the discrepancy in the testimony, the prosecutor argued that the defendant's girlfriend Jessica Barber "had threatened [the witness] before the first trial." In connection with this argument, the prosecution offered Ms. Barber's MySpace profile page which contained the following blurb:

FREE BOOOZY!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!

Ms. Barber was not called to authenticate the MySpace page. The prosecution instead called a police officer who testified that he visited the website on December 5, 2006, the date on the printout of the page.

The Court's Opinion: The court noted that "[a]nyone can create a MySpace profile at no cost, as long as that person has an email address and claims to be over the age of fourteen." The court also noted that there is no guarantee that the person who creates the account is actually the person who is depicted as the account-holder:

The identity of who generated the profile may be confounding, because 'a person observing the online profile of a user with whom the observer is acquainted has no idea whether the profile is legitimate.' The concern arises because anyone can create a fictitious account and masquerade under another person's name or can gain access to another's account by obtaining the user's account name and password . . . .

The possibility for user abuse also exists on MySpace, as illustrated by United States v. Drew, 259 F.R.D. 449 (D. C.D. Cal. 2009), in which Lori Drew, a mother, was prosecuted under the Computer Fraud and Abuse Act . . . for creating a MySpace profile for a fictitious 16-year old male named 'Josh Evans.' . . . .

The potential for fabricating or tampering with electronically stored information on a social networking site, thus poses significant challenges from the standpoint of authentication of printouts of the site, as in the present case.

The court states that regardless of the possibilities for abuse, authentication is still governed by general evidence principles and the applicable rules. The state argued that the photograph, personal information, and the references to the defendant "were sufficient to enable the finder of fact to believe that the pages printed from MySpace were indeed [the witness's]." The court disagrees, noting that the lower court: "failed to acknowledge the possibility or likelihood that another user could have created the profile in issue or authored the 'snitches get stitches' posting." The court held that the purportedly 'distinctive' elements put forth by the state were not sufficiently distinctive:

The potential for abuse and manipulation of a social networking site by someone other than its purported creator and/or user leads to our conclusion that a printout of an image from such a site requires a greater degree of authentication than merely identifying the date of birth of the creator and her visage in a photograph on the site in order to reflect that [the witness] was its creator and the author of the 'snitches get stitches' language.

The court looks to other cases which similarly hold that the potential for abuse with respect to social network-based evidence requires a higher standard of scrutiny for authentication. For example, in Commonwealth v. Williams, the court ruled that the admission of MySpace messages was improper because there was no evidence regarding "who had access to the MySpace page and whether another author . . . could have virtually-penned the messages . . . ."

Guidance for Authentication: The court lays out possible ways in which a party seeking to admit profile evidence could go about authenticating it. One option would be "to ask the purported creator if she indeed created the profile and also if she added the posting in question." As I noted in my earlier post about this case, the state inexplicably failed to do this in this case. A second option is to "search the computer of the person who allegedly created the profile . . . to determine whether that computer was used to originate the social networking profile and posting in question." This is fairly invasive, particularly if the profile or message in question is from a witness rather than from the party. The third method is to obtain information "directly from the social networking website that links the establishment of the profile to the person who allegedly created it and also links the posting sought to be introduced to the person who initiated it."

The Dissent: Two dissenting judges accuse the majority of having a case of the "technological heebie-jeebies," and note that the key question is whether a "reasonable juror" could conclude that the evidence in question was authentic. In other cases where the authenticity of a piece of evidence is disputed, the typical practice is to let the jury make the call, unless the court concludes that "no reasonable juror" could find the evidence authentic. The dissenting judges fault the majority for not following the same practice in this case.
__

The court's conclusion highlights two interesting points. First, there is little guarantee that a particular profile may turn out to be authentic. It is frighteningly easy for someone to create a profile in another person's name. People litter the internet with their "distinctive attributes," and it's equally easy for someone to create a profile in another person's name which contains purported "unique attributes" of that other person.

Another point which the court touches on but does not delve into is the fact that even if there is some assurance that the particular profile belongs to the witness in question, there is not always a guarantee that the statement on the site was made by the witness. The statement on a person's social networking profile could be made by a third party, and it would be difficult to discern this from a printout. Whether a third party could post a statement to a person's social networking profile would depend on the network in question, and the person's own privacy settings. As we all know, the average person is not necessarily tuned in to the nuances of the privacy settings of various social networking sites. Given all of this, it makes sense to set a fairly high bar for admission of this type of evidence. (Interestingly, the court distinguishes between authentication of social networking evidence and authentication of "e-mails, instant messaging correspondence, and text messages." According to the court, this type of evidence differs significantly because it is "sent directly from one party to an intended recipient or recipients, rather than published for all to see.")

Previous post: "MySpace Evidence: Maryland Appeals Court Allows Circumstantial Authentication"

Related posts:
MySpace Profile and Photo Evidence Used to Support Conviction for "Participation in Criminal Gang Activity" -- State v. McCraney
MySpace Photo and Internet Gang Roster Evidence Improperly Admitted -- People v. Beckley
MySpace Profile Evidence Inadmissible to Show Defendant Committed 'Gangster Style' Robbery -- U.S. v. Phaknikone

* The state's highest court is called "Court of Appeals of Maryland" for some reason.

Posted by Venkat at 07:15 AM | Evidence/Discovery

April 08, 2011

March 2011 Quick Links, Part 3

By Eric Goldman

Search Engines

* Lots of Google antitrust activity:
- Apparently, an EU antitrust investigation IS something that Microsoft would wish on its worst enemy.
- Every legal regulator in the world is considering antitrust investigations into Google, including Ohio and Wisconsin (see my prior blog post about Texas’ investigation) and the FTC.
- The DOJ approved the Google-ITA merger—with conditions. This is superficially a win for Google, but I expect the anti-merger coalition won’t go away quietly.
- I interviewed with the SF Chronicle about Google and search engine bias (with photos!).

* New Google design features:
- Google lets each person individually block websites from their search results.
- Will Google’s +1 become the gold standard for personalized search, or will it be another failed attempt by Google to get social?
- A rundown of Google Autocomplete and its quirky blocking approaches.

* Blekko blocks 1.1M websites from its search index. Does this create 1.1M new plaintiffs who will sue for their "right" to be in Blekko's index?

* More eye-tracking studies showing that searchers mostly ignore the ads on the right side of the page.

* Rebecca notes that the litigation between eBay and Craigslist has a keyword advertising component.

* Expedia and American Airlines have kissed and made up. My prior blog post.

Social Networking Sites

* Facebook is doing real-time ad targeting. Does this mean we'll get Facebook's notoriously poorly targeted ads faster? Something to look forward to.

* U.S. v. Gamory, 2011 WL 832554 (11th Cir. March 11, 2011). YouTube video being shown in court was a harmless error.

* New York Times: "Across the nation, millions of young people are lying about their ages so they can create accounts on popular sites like Facebook and Myspace....Parents regularly go along with the age inflation, giving permission and helping children set up accounts. They often see it as a minor fib that is necessary to let their children participate in the digital world." My related blog post.

* Spooner v. Associated Press: Another lawsuit over an allegedly defamatory tweet.

* NYT on evolving norms about Twitter etiquette.

* Evan Brown on another sad case of online impersonation.

* Ceglia v. Zuckerberg, 2011 WL 1108607 (W.D.N.Y. March 28, 2011). Mark Zuckerberg is domiciled in CA for purposes of jurisdiction.

* I participated in an ABA Journal Podcast entitled “What Are the Ethics of Lawyer Review Sites Like Avvo?”

Content Regulation

* ICANN approved .xxx. India has already announced it will block .xxx. Meanwhile, how long until the .xxx registry vendor, in a rent-seeking fiesta, goes around to various state legislators and asks them to pass laws requiring pornographers to locate only at a .xxx domain?

* French court tosses a criminal libel prosecution over an academic book review--with sanctions.

* Craigslist drops its lawsuit against former South Carolina AG McMaster.

* The oft-cited study that Craigslist contributes to human trafficking may be junk science.

* An entrepreneurial law firm sets up anti-bullying practice. Expect lawsuits galore to ensue.

* Nature reports on lawsuits over rebuttals to scientific research and how a federal anti-SLAPP law might help. My prior blog post.

Miscellaneous

* A blogger takes down a DHS sting site for underage sex tourism.

* Latest iAWFUL list of bad Internet proposed legislation.

* National Federation of the Blind complains about universities that put students on Gmail accounts, saying the accounts don't work well with speech reading software.

* Senators ask various companies to pull apps that identify drunk driving checkpoints.

* Believe it or not, some ban in-bound links. A list.

Posted by Eric at 11:16 AM | Content Regulation , Domain Names , Evidence/Discovery , Search Engines | TrackBack

April 04, 2011

Court Denies Request for Discovery of Facebook and Twitter Account Information, Finding that the Request is a "Digital Fishing Expedition"

[Post by Venkat Balasubramani]

Caraballo v. City of NY, Index No. 75535/08 (N.Y. Sup. Ct.; Mar. 4, 2011)

Plaintiff suffered personal injuries "while performing work at 417 O'Gorman Avenue, also known as 45 Keegans Lane, on Staten Island." Predictably, defendant sought discovery of

plaintiff's current and historical Facebook, Myspace and Twitter pages and accounts, including all deleted pages and related information.[emphasis added]

Plaintiff objected on the grounds that the discovery was overbroad, intrusive and the information sought was irrelevant. Defendant argued that the records from the social networking sites were:

just as relevant as plaintiff's medical records to the extent that there are photographs, status reports, [and] videos that depict plaintiff engaging in activities that contradict his injury claims in this case.

Defendant also pointed to a prior case where a defendant's request to access plaintiff's MySpace account was granted. However, in that case, the plaintiff had testified as to the types of information she had posted to her MySpace account. Here, the defendant put forth no such evidence. It tried to obtain access to the Twitter and Facebook accounts hoping to find something there. The court denies the request:

the discovery demand at issue is overly broad, and [defendant] has failed to establish a factual predicate with respect to the relevancy of the information the sites may contain. In the opinion of this Court, digital “fishing expeditions” are no less objectionable than their analog antecedents.

A previous case from a trial court in New York granted a similar request to discover plaintiff's Facebook and MySpace Posts (Romano v. Steelcase, discussed in this post: "Deleted Facebook and MySpace Posts Are Discoverable--Romano v. Steelcase".) That case dealt primarily with deleted posts, and didn't address the question of plaintiff's privacy interests in private posts or messages.

This case (like the other cases involving discovery of social network information) illustrates some of the practical difficulties that courts and litigants will face when trying to get access to a party or witness's social network information. The party seeking the information has to demonstrate that it seeks information that is relevant to the dispute (and that the account will contain such information). Defendant did not make that showing here, but if it had, was the court willing to give defendant unfettered access to the account? That doesn't seem like a tenable result. In any event, it's good to see that courts are imposing some minimal threshold before allowing litigants to access the contents of a party's social networking account.

Previous posts:

Deleted Facebook and MySpace Posts Are Discoverable--Romano v. Steelcase
"Facebook Messages/Wall Posts, Civil Discovery, and the Stored Communications Act -- Crispin v. Audigier"
"Court Refuses to Set Aside Order Requiring Disclosure of Twitter Users' IP Addresses"

Posted by Venkat at 07:19 AM | Evidence/Discovery , Privacy/Security | TrackBack

March 28, 2011

Website Privacy Policy Supports Pseudonymous Poster's Expectation of Privacy -- Cornelius v. Deluca

[Post by Venkat Balasubramani]

Cornelius v. Deluca, 10-Cv-027-BLW (D.Id.; Mar. 15, 2011)

A district court judge in Idaho denied a request to unmask the identity of a pseudonymous forum poster. In support of its decision, the court looked to the website's privacy policy to find an expectation of privacy.

The case revolved around comments made on bodybuilding.com which Cornelius and his company are not happy about. The lawsuit has spanned two jurisdictions (Idaho and Missouri) and spawned two rulings mentioned on this blog. Professor Goldman's initial post describes the situation as follows:

DeLuca runs bodybuilding.com, a fitness website and online retailer. The plaintiffs sell dietary supplements ("syntrax," whatever that is). The plaintiffs allege that their competitors posted shill reviews to bodybuilding.com designed to harm the plaintiffs' business. The plaintiffs sued both bodybuilding.com and the putative shillers.

The first time around, the Missouri judge awarded bodybuilding.com an easy Section 230 win to the extent plaintiff tried to hold it liable for posts made by third parties. ("Online Retailer Isn't Liable for User Comments.") In a second ruling (after the dispute moved to Idaho), the court strayed from the Section 230 path and said that bodybuilding.com could be held liable for posts made by "moderators." ("Troubling Ruling About 47 USC 230 and Moderators.") In response to this ruling, plaintiff tried to find out the identity of a pseudonymous poster named "INGENIUM," who posted the following:

despite S103's constant matrix pimping in CASEIN threads, matrix is not a micellar casein product.

[I'm not even sure what the products in question are, and what claims are being made about them, but the extensive litigation activity in this case makes me think that they must be useful in some way.]

After a November 2010 hearing, the court allowed plaintiff to discover INGENIUM's identity, based in part on defense counsel's purported concession that bodybuilding.com did not object to disclosure of INGENIUM's identity. The court's earlier decision was also based on the court's conclusion - relying on a recent Ninth Circuit case (In re Anonymous Online Speakers) - that the statement in question was commercial speech. Bodybuilding.com complained, saying that counsel was not authorized to make this concession, and requested that the court reconsider its prior ruling. Also, in between the court's earlier ruling and its reconsideration of the order, the Ninth Circuit withdrew its opinion in In re Anonymous Online Speakers and left the opinion intact, except for the language that characterized the speech as commercial speech versus core political speech.

Anonymity v. Disclosure of INGENIUM's identity: The court decides that INGENIUM's speech is neither purely commercial nor core political speech, and it then looks to the question of whether plaintiffs' need for INGENIUM's identity outweigh INGENIUM's right to speak anonymously. Without deciding the appropriate test in this context, the court looks to previous cases and settles on five relevant factors (citing Sony Music v. Does, Dendrite, 2TheMart): the plaintiff's ability to establish a prima facie case; the specificity of the discovery request; the availability of alternate means to obtain the information; the need for discovery to advance plaintiff's claim; and defendant's (or the speaker's) expectation of privacy.

The court reverses itself and finds that plaintiffs could advance their claim without obtaining INGENIUM's identity - i.e., this information was not central to plaintiffs' claims. Noting that an 'extra-high hurdle' exists when a non-party's information is involved, the court finds that plaintiffs failed to clear that hurdle here. In particular plaintiffs sought to identify the precise nature of the relationship between bodybuilding.com and INGENIUM, but plaintiffs hadn't conducted any discovery directed to bodybuilding.com on this issue. Bodybuilding.com submitted a declaration setting forth its relationship with INGENIUM (that INGENIUM was a community-elected volunteer), but plaintiffs did not bother deposing the individual who submitted the declaration. Thus, there was no need for plaintiffs to unmask INGENIUM to obtain this information, at least not at this stage.

The privacy policy: The court also added that:

INGENIUM has an expectation of privacy based on bodybuilding.com's terms of service and privacy policy. Bodybuilding.com's terms of service state that no poster may make any post that would infringe on another poster's right to privacy. Bodybuilding.com's privacy policy also states that protecting users' privacy is a top priority, and bodybuilding.com has taken reasonable measures to protect users' private information.

Ultimately, the court concludes that plaintiff's attempt to discover INGENIUM's identity "is a fishing expedition based on speculation that INGENIUM was or is an agent or representative of bodybuilding.com."
__

There have been a couple of cases dealing with website privacy policies and their effect on whether a user should be unmasked. I blogged about Sedersten v. Taylor, where the court held that language in the policy providing that the site could freely use user information did not result in a waiver of the right to post anonymously. ("Online Commenter Did Not Waive Right to Anonymity by Agreeing to News Website's Privacy Policy.") In McVicker v. King, the court held - as the court did in this case - that language in the policy created an expectation of privacy. (Here's Tom O'Toole's post on that case: "Newspaper Website's Privacy Policy Creates Expectation of Privacy for Commenters?")

The expectation of privacy that is derived from a site or service's terms is something that courts have looked to in the Fourth Amendment context, in dealing with questions of privilege or whether an employer has the right to access employee communications, and whether disclosure of a person's social networking profile and communications is appropriate in civil litigation. But thus far, it has not made an appearance in anonymity cases. There are a couple of questions or concerns that this approach raises: (1) whether looking to terms in privacy policies would leave anonymous users at the whim of website terms (which may change from time to time based on business considerations), and (2) whether it makes sense to impute the expectation of privacy on users based on policies that they don't necessarily read or digest? (See Chris Soghoian's post the Twitter/Wikileaks disclosure order on the second point: "Federal judge in Twitter/Wikileaks case rules that consumers read privacy policies.") The First Amendment cases dealing with online anonymity do not discuss whether the poster had a "reasonable expectation" of privacy, and looking to the online terms and privacy policy will just muddy the analysis. While it bolsters the poster's privacy in this case, it may leave online posters in general worse off. Also, in many instances it will not be determinative because sites tend to include wiggle room in their policies so they can disclose user information if it's in their interest to do so.

Interestingly, the issue is in front of the court only because of its ruling that bodybuilding.com could be held liable if INGENIUM is found to be an "agent or representative of bodybuilding.com." See Professor Goldman's skepticism about this conclusion in his earlier post on the case: "Troubling Ruling About 47 USC 230 and Moderators."

Posted by Venkat at 12:55 PM | Derivative Liability , Evidence/Discovery , Privacy/Security , Publicity/Privacy Rights

February 27, 2011

Jan.-Feb. 2011 Quick Links, Part 2

By Eric Goldman

Search Engines

Google’s search algorithm has been very much in the news the past 2 months!

* Google’s announcements:
- “Google search and search engine spam”
- Matt Cutts explains Google penalties in a video.
- “Microsoft’s Bing uses Google search results—and denies it.” Comments from Search Engine Land and Greg Linden (on privacy)
- Interview with Amit Singhal on content farming

* Google publicly penalized numerous targets, including
- JC Penney, punished for black hat SEO (the 4th time Google had penalized them).
- Overstock, punished for coopting too many .edu domains
- Forbes, punished for passing PageRank to paid links
- Then, Google dropped the hammer on content farms

The running question with all of these changes: should we praise—or regulate—Google for fighting back against the algorithm gamers? My 2006 article on search engine bias answers that question. I recently wrote a short essay updating the 2006 article—more on that soon.

* Speaking of regulators, they are hardly standing on the sidelines:
- EU regulators hate Google. They really hate Google.
- The Italian antitrust authority dropped its investigation into Google News after Google agreed to make it easier for publishers to opt-out.
- More details emerged on the Texas AG’s investigation into Google. WSJ and AllThingsD (including the actual letter). My prior blog post.
- Interestingly, FWIW, it’s not clear consumers are sold on the need for regulatory intervention. 77% of Americans say "there is no need for government regulation of the way that search engines select the recommendations they provide in response to search inquiries." Then again, survey wording is key. I could see an equal percentage say that we should prevent search engine bias.

* Questions about Google’s algorithms:
- Techdirt: "Will Google's New Hamfisted Censorship On Autocomplete Raise Questions Of Human Meddling?"
- News.com: Google's double standard on user-generated content

Privacy

* H.R. 654, "Do Not Track Me Online Act of 2011." The law would require the FTC to promulgate regulations that “establish standards for the required use of an online opt-out mechanism to allow a consumer to effectively and easily prohibit the collection or use of any covered information and to require a covered entity to respect the choice of such consumer to opt-out of such collection or use.”

* Information Law Group's 2010 privacy law recap.

* Jeff Jarvis: "the emergence of Privacy, Inc., as a industry built on scaring people is beginning to scare me."

Remember, every regulation creates winners and losers, and we should always ask what’s in it for the winners. On that score, see James D. Campbell et al, Privacy Regulation and Market Structure, reaching the conclusion: “privacy regulation can benefit incumbents and reduce innovation.”

* Lyall v. City of Los Angeles, Not Reported in F.Supp.2d, 2011 WL 61626 (C.D. Cal. Jan. 6, 2011). Publicizing an event on MySpace made the event space into a public place for purposes of a police search.

* After Pineda v. Williams-Sonoma treating zip codes as private information, a flood of lawsuits. In response to the Supreme Court's ruling, Sacramento urgently needs to make a statutory fix to Song-Beverly to avoid business-sapping and socially wasteful litigation.

* FTC: Data Resellers Liable for Downstream Security Failures

Social Media/Web 2.0

* Reuters: "Companies warily eye new consumer complaint sites"

* Mountain View Voice: Contractor files big claim for bad Yelp review.

* Teacher is suspended for blogging about her "whiny" students. Compare Yoder v. Univ. of Louisville.

* Reuters recaps e-discovery of social networking site content.

* NYT: Is blogging passé?

* Facebook ads have really low clickthrough rates, but the clickthrough rate improves if another user "likes" the ad.

* Unintended consequences of CA's E-personation law are beginning to manifest themselves. Apple goes after the @ceostevejobs parody Twitter account.

* NYT surveys some esoteric niche online dating websites.

* U.S. v. Forde, 2011 WL 63831 (4th Cir. Jan 10, 2011):

In a post-trial motion, Forde informed the district court that while the trial was proceeding, a friend of the husband of the jury foreperson posted on Twitter an explanation of the difference between “assume” and “presume.” Ford contended that, since the posting occurred during trial, it was possible that the jury foreperson had talked to her husband about the case, her husband then talked to his friend about the case, the friend then posted the statement on Twitter, and the foreperson saw the Twitter posting. Forde thus requested that the district court hold a hearing to investigate the potential misconduct. The district court denied the request.

...Forde's string of possibilities about the origin of the Twitter posting—that the foreperson possibly talked to her husband, who possibly talked to his friend, who possibly took to Twitter in response to what the husband possibly told him—is nothing but speculation and thus falls far short of establishing reasonable grounds for investigation. The district court therefore did not err by denying Forde's request for an evidentiary hearing to investigate his claim.

Posted by Eric at 04:22 PM | Content Regulation , Evidence/Discovery , Marketing , Privacy/Security , Search Engines | TrackBack

January 27, 2011

Top 5 Cyberlaw Developments of 2010, Plus a 2010 Year-in-Review

By Eric Goldman

Earlier this Fall, I posted my top 8 trends in Internet law, and that's a good place to start if you want to see how I think things are developing. Because of that post, this year I'm shaking up the format of my year-end recap post a little bit. We'll start with the top 5 Cyberlaw events of 2010, but then we'll move to other topics. (This is a variation of my post to InformIT on Tuesday).

Top 5 Legal Developments

#5: Google pulls out of China. China's native search engines rejoice, but is this really a win for China's long term prospects? Meanwhile, I keep hoping Google will do the same in the EU too given how much the EU regulators hate Google.

#4: COICA and the pre-enactment COICA workaround, ICE's lawless seizure of 82 supposedly pirate-oriented domain names. Showing once again that domain name censorship is irresistible to government regulators.

#3: Righthaven goes on a litigation frenzy on behalf of newspapers. Which do you think will happen first--bloggers stop discussing newspaper articles for fear of being sued, or newspapers go out of business? What's amazing is that newspapers don't realize that the first will accelerate the second.

#2: Oracle gets $1.4B+ from SAP for competitive scraping. Oracle hit a grand slam with the damages in this case, ranking highly on several all-time-largest-awards charts.

And the top cyberlaw story of the year goes to...

#1: Wikileaks. Wikileaks finally forces us to confront many of the cyberspace governance issues we were debating in 1996. I'm sad to say that our government, and many private businesses, failed the test.

Other Key Developments

* Tiffany v. eBay. The Second Circuit thumps Tiffany's pathetic arguments and gives eBay a clean bill of trademark health. However, this ruling just preserved the status quo, so for my money, the much more important secondary trademark rulings involved providing other services to alleged counterfeiters. See Gucci v. Frontline, potentially exposing credit cards and other payment service providers to secondary liability for providing payment services to alleged counterfeiters, and Roger Cleveland Golf v. Price, potentially exposing SEOs/web designers to secondary liability as well.

* Viacom v. YouTube and Arista v. Limewire. These companion cases told us what we already knew: YouTube + 512(c) defense = good, P2P file sharing software vendor - DMCA safe harbor = bad.

* Sony v. Tenenbaum. I'm still waiting to see if this case is a blip or a watershed. It has the potential to make every copyright statutory damages case into a constitutional due process inquiry.

* Legally, it was a good year for Google. Google got a favorable trademark ruling in the ECJ. Google got a decisive win in its Rosetta Stone AdWords trademark case (and, as mentioned before, the YouTube case as well). Most of the other trademark plaintiffs lost or simply gave up.

* Legally, it was a lousy year for Google. Everyone in the world seems to be considering if they can run Google's algorithms better than it can: EU antitrust regulators, French antitrust regulators, the Texas AG, private plaintiffs, the New York Times and so many more. Google got trapped in a dangerous antitrust litigation in the unfavorable venue of Ohio state court. Google Street View has been a legal train wreck world-wide. The DOJ busted up a possible hiring cartel among Silicon Valley companies, and Google almost immediately handed out 10% pay raises for everyone. Buzz was a lousy product with a horrible launch, and it led to a multi-million dollar litigation kicker.

* It was a quiet year for 47 USC 230 litigation. From my perspective, quiet is good! The biggest defense win of the year: Milgram v. Orbitz. The biggest plaintiff win of the year: Swift v. Zynga.

* Perfect 10 v. Google. Google gets yet another win in this case, this time on 512(d)--one of the few cases interpreting the 512(d) safe harbor for linking to infringing content.

Notice I didn't put *any* of the Ninth Circuit Internet law jurisprudence on the list. There were plenty of interesting rulings this year: Krottner v. Starbucks, MDY v. Blizzard, Vernor v. Autodesk, DSPT v. Nahum, the Freecycle naked licensing case, Advertise.com v. AOL, Toyota v. Tabari, Visa v. JSL, CRS Recovery v. Laxton, Office Depot v. Zuccarini. However, I have lost all faith that 3 judge panel decisions by the Ninth Circuit have any binding precedential on other panels, so every case is effectively a one-off.

Less-Heralded But Nevertheless Interesting Disputes of the Year

Some under-the-radar legal disputes that I thought were more interesting than the overhyped stories:

* Barclays v. theflyonthewall. A brokerage house gets an injunction against the republication of its stock recommendations based on a hot news doctrine. The case is now on appeal to the Second Circuit. The case exposes the precarious business model of brokerage houses: they are content publishers trying to monetize via a commodity service, and brokerage house stock recommendations were exactly the kind of information John Perry Barlow explored in his 1994 Economy of Ideas article. Will the hot news doctrine prop up a doomed business model?

* Anderson v. Bell. Electronic signatures count towards the requirements for an election petition. This could launch a new era of citizen petitioning of the government.

* Snap-on v. O'Neil. A company can't scrape its own data from its outsourced vendor, seemingly authorizing the vendor to play hold-up games for companies that don't handle the contract correctly. The Eventbrite v. Cvent case provided some interesting contrast.

* Goforit v. Digimedia. A court upholds domain name wildcarding and says the TM owner/plainitff pursuing those wildcarded domain names may have engaged in reverse domain name hijacking.

* Lara Jade Coton v. TVX. The blog post title said it all: "Tip for Clean Living: Don't Use a 14 Year Old's Self-Portrait in Advertising for Porn."

Most Overhyped Stories

This year, for the first time, I'm separately breaking out a category for most overhyped stories of the year.

* Craigslist shuts down its adult services category. A toxic mix: Craigslist took a legally defensible but nevertheless obstinate position, and state AGs love to show their constituents how much they hate the Internet. When Craigslist finally gave in and shut down its adult services category (with a whining F-U), people went crazy.

* Borings get $1 for their trespassing claim. Google's Street View contractors made a mistake, drove up a private driveway, and captured what they saw. Google posted the photos until it got a complaint, then the homeowners with the odd surname ("Boring") went on a litigation frenzy. Their payoff for several years of litigation? $1. Not even enough for extra foam on a Starbucks mochachino.

* The Supreme Court's tech docket. Several fizzled out non-decisions from SCOTUS this year: Bilski, Quon, Costco. The Supreme Court is taking a steady diet of tech-related cases, but they are gun-shy about actually resolving them.

* Mark Hurd. Mark Hurd, Hewlett Packard's CEO, had an inappropriate relationship with an HP contractor/former B-list softcore porn actress and maybe fudged his expense reports. When he tried to take a job at HP's frenemy Oracle, HP got litigious, but it turns out their fur can be smoothed for a few million.

* Lost iPhone Prototype. Stop me if you've heard this joke before: an engineer walks in a bar and...loses a super-stealthy prototype of one of the most important new consumer technology launches ever...? I realize it's an uber-cool phone, but still, IT'S A PHONE, PEOPLE!

Our Snarkiest Company-Specific Posts

Occasionally, we get snarky about specific companies' practices. It's not our norm, but these posts sure do boost traffic. Companies in our crosshairs this year:

* The Problems With Google House Ads. Google's response to this post was pathetic and embarrassing.

* Scribd Puts My Old Uploads Behind a Paywall and Goes Onto My Shitlist. I still use Scribd, but I have zero loyalty.

* Hypocrisy Alert?! Expedia, a "FairSearch" Member, Marginalizes American Airlines in Its Search Results. If you're going to wave the "Search Neutrality" flag, please keep it hypocrisy-free.

* Facebook pulls a rare hat trick of snark this year: Q2 2010 Quick Links Part 3 (Special Facebook Edition), Facebook's Anti-Spam Filter Blocks Legitimate Conversations about Power.com, Distrust in the Cloud Part #2: Facebook Blocks J.mp Links and Takes Down Lots of Status Updates in the Process. I'm officially no longer in love with Facebook. I post the exact same content to Twitter and Facebook, so please follow me at Twitter instead.

* My RapLeaf Profile is Amusingly Mistaken. This is What the Fuss is All About?. In response to an article in the Wall Street Journal's "What They Know"/privacy plaintiffs lawyers full-employment series of articles.

Most Popular Blog Posts of the Year

1) Scribd Puts My Old Uploads Behind a Paywall and Goes Onto My Shitlist. Nearly 2X the traffic of #2. Putting profanity in the post title still works as a traffic booster.

2) Deleted Facebook and MySpace Posts Are Discoverable--Romano v. Steelcase (Topsy 100). I still can't figure out why this post was so popular; it just reminded us of something we already knew. See also the related but overreaching Millen v. Hummingbird Speedway.

3 & 5) #3: Twitter Clarifies Usage Rules, but AFP Still Claims Unbridled Right to Use Content Posted to "Twitter/TwitPic". Venkat also had an end-of-the-year hit with the #5 post, "Court Rejects Agence France-Presse's Attempt to Claim License to Haiti Earthquake Photos Through Twitter/Twitpic Terms of Service -- AFP v. Morel." Both posts were Topsy 100.

4) Viacom v. YouTube Summary Judgment Motions Highlights. Not surprisingly, the gossip about the lawsuit is way more popular than the blog post on the actual ruling.

One other post reached Topsy 100: "Ripoff Report Defeats Extortion Claim, But Plaintiffs Keep Trying--AEI v. Xcentric."

Lists of Yore

Previous top 10 lists from 2009, 2008, 2007 and 2006. Before that, John Ottaviani and I put together a list of top Internet IP cases for 2005, 2004 and 2003.

Posted by Eric at 06:56 AM | Content Regulation , Copyright , Derivative Liability , Domain Names , Evidence/Discovery , Internet History , Licensing/Contracts , Search Engines , Trademark , Trespass to Chattels | TrackBack

January 06, 2011

Contrary LinkedIn Evidence Crushes Witness' Testimony -- Blayde v. Harrah's Entertainment

[Post by Venkat Balasubramani]

Blayde v. Harrah's Entertainment, 08-cv-02798 (W.D. Tenn.; Dec. 17, 2010)

By my guesstimate, LinkedIn ranks last among the major social networks for being invoked as a source of evidence in court cases. MySpace is the runaway favorite, and MySpace evidence often seems to become an issue in criminal and family law cases. Facebook-sourced evidence is starting to crop up more often, also in criminal and family law cases. Twitter is probably a distant third, typically making appearances in trademark cases and the occasional defamation case. Of the four, LinkedIn is definitely last (not that this is a bad thing).

Blayde brought age discrimination claims against Harrah's. Among its many defenses, Harrah's argued that it wasn't actually the Blayde's "employer" for purposes of the ADEA. Blayde testified that although he initially started working at another casino named "Grand," Grand had been acquired by Harrah's, which made Harrah's his employer. Harrah's argued that one of its subsidiaries acquired Grand and this subsidiary (and not Harrah's) should be treated as the employer. Blayde produced evidence that Harrah's treated him as its employee by giving him its employee handbook and signing his paychecks. This looked like it was sufficient to convince the judge, but if this wasn't enough, Harrah's own witness--who according to Harrah worked along with (and supervised) Blayde at Grand (and not at Harrah's)--listed "Harrah's" as his employer on his LinkedIn profile.

Not only did this LinkedIn evidence undermine Harrah's argument that it wasn't Blayde's "employer," it also undermined the credibility of Harrah's key witness:

the evidence supporting Defendants’ explanation for Plaintiff’s termination consists primarily of Hirsch’s testimony, and Hirsch was not a credible witness. Notably, Hirsch testified that he did not work for Defendants even though he listed [Harrah's] as his employer on his LinkedIn page. When confronted with this inconsistency, Hirsch could not offer an explanation except to state that it was not his LinkedIn page. This assertion was incredible given that Hirsch had already verified all of the information contained on the LinkedIn page as being accurate. This and other inconsistencies and illogical conclusions discredit Hirsch’s testimony that Plaintiff’s Action Plan was intended to improve Plaintiff’s performance.

Ouch.

Posted by Venkat at 10:27 AM | Evidence/Discovery

December 28, 2010

MySpace Profile and Photo Evidence Used to Support Conviction for "Participation in Criminal Gang Activity" -- State v. McCraney

[Post by Venkat]

State v. McCraney, 2010-Ohio-6128 (Ohio Ct. App.; Dec. 15, 2010)

There has been a proliferation of MySpace (and more recently, Facebook) cases in the criminal context. Most of these cases involve evidentiary issues where the prosecution seeks to use profile evidence to show motive, absence of alibi (etc.), but a recent Ohio case is remarkable in that the MySpace evidence was used to support a conviction for "participation in criminal gang activity."

The defendants' convictions for robbery and participation in "criminal gang activity" stemmed from their alleged participation in two incidents at a gas station. At one incident, they harassed a patron and "asked him for money" (but didn't receive any) and in another incident, they attacked another patron and stole beer that the patron was buying for a party. One defendant was found guilty of all charges, but the other was found not guilty of one of the robbery charges.

Two officers testified as experts regarding the nature of the local gangs, the fact that the "the focus of criminal gangs is to make money." One officer also testified that gangs have increasingly been using social networking websites:

The trend that we've been noticing and beginning to use is the fact that a lot of our suspected gang members in their photos and in some of the conversations they have will talk about criminal gang activity. There will be photos of individuals throwing up gang hand signs, photos of individuals doing other kinds of illegal activities, such as drugs, guns. And then there's also the kind of representing type of photos where they'll have large sums of cash, wear a lot of jewelry, kind of status-type things.

The officer also testified that gang colors, clothing, and affiliation with other gang members were all hallmarks of gang activity. The Officers also testified regarding photographs of the defendants - some of which were allegedly taken from defendants' accounts:

Officer Criss . . . noted [defendants] were friends on MySpace. Mr. Owens was pictured in two photographs on Mr. McCraney's MySpace page. In one of the photographs, Mr. Owens was wearing all black and he was standing with several other people who were wearing all black, or black and red. Further, several of the people in the photograph were displaying gang hand signs. The other photograph from Mr. McCraney's page depicted [defendants, along with] a known gang member.

Officer Criss also discussed photographs taken from Mr. Owens' own MySpace page. One of the photographs depicted Mr. Owens in a red hat and a fur coat. Officer Criss said this was significant because red is a gang color and the fur coat is a status symbol in the gang community. In addition, Mr. Owens' gold teeth were also alluded to as being a status symbol. Another photograph from Mr. Owens' MySpace page depicted Mr. Owens holding a large sum of cash and wearing red and black clothing. Further, dollar signs are superimposed all over the photograph. Again Officer Criss stated that red and black are associated with the Bloodline gangs and the money symbols and the display of a large amount of cash represented that Mr. Owens was able to get large sums of money.

One of the officers also testified regarding a tribute one of the defendants had on his MySpace page to a "fallen gang member," and that offering this type of a tribute was "common practice among fellow gang members." Finally, one of the officers testified that he had personal knowledge of individuals depicted in the photographs and they were "known gang members."

The majority finds this evidence (when viewed in the light most favorable to the prosecution) sufficient to sustain the conviction. One of the judges dissented because he viewed the evidence as insufficient to sustain the conviction for participation in criminal gang activity for one of the defendants:

Essentially, the majority's decision allows one to conclude that someone actively participates in a criminal gang if that person has committed theft or drug crimes in the past, wears one color associated with a gang, and associates with people who are in a gang or who make gang hand signs. I also find it troubling that the majority suggests that despite the lack of evidence concerning the significant indicators of participation in gang activity, the gap in the evidence is satisfied simply because an officer stated that he believed Mr. Owens actively participated in a criminal gang.

Unlike many of the other cases which involve evidentiary issues where MySpace evidence was used to buttress the conviction, in this case, at least with respect to one of the charges, the bulk of the evidence of the alleged criminal activity itself came from MySpace.

Posted by Venkat at 11:51 AM | Content Regulation , Evidence/Discovery

December 03, 2010

Court Admits Google Earth Evidence, But Only for Demonstrative Purposes -- State ex rel. J.B.

[Post by Venkat]

State ex rel J.B., Case No. A-2228-08T4 (N.J. Ct. App.; Sept. 27, 2010)

J.B., a juvenile, was convicted for burglary, robbery, and trafficking in stolen property ("a jar of coins, a samurai sword collection, and a laptop"). There was conflicting testimony as to J.B.'s whereabouts. His co-participants testified that he participated, but his mother supported J.B.'s alibi by testifying that he was at home and could not have participated in these acts.

To rebut the alibi, the State produced phone records from Verizon, which demonstrated that calls were made from J.B.'s mobile phone while he was in the vicinity of the burglary and not from near J.B.'s home. The Verizon representative also testified that a mobile phone call terminated "to the cell tower closest to the caller," which in this case were near the location of the burglary and not J.B.'s home. To demonstrate that the tower to which the calls at issue terminated were closer to the scene of the burglary, the prosecutor produced Google Earth satellite images.

J.B. objected to introduction to the Google Earth evidence for lack of foundation. The judge sustained the objection, noting:

although Google Earth is a tool a lot of people are using . . . I don't know that [its reliability has] been established at this point.

The prosecutor then introduced testimony from a detective who claimed familiarity with the locations of the cell towers, and that he had measured the distances between the locations with the odometer of his police cruiser. The prosecutor then provided the detective with Google Earth images which showed the locations of the cell towers relative to the scene of the robbery and J.B.'s home. J.B.'s counsel objected again, but this time the court overruled his objection:

The [c]ourt finds that other than very recently what would have happened is . . . that the State would have brought in an atlas map and ask[ed] somebody familiar with the area to point on the map where different locations are and how you would get there. And this is just an updated manner of getting the same information. If the [d]efense wants to show that the information is incorrect, they can certainly do it by either cross examination or they can do exactly what I just suggested and bring in an atlas map and show where the exhibit that the State is offering is incorrect.

On appeal, the court held that it was within the trial judge's decision to admit this evidence as a "demonstrative aid." The evidence shouldn't have been admitted by itself to show the distances in question, but given that the officer testified about the distances, the Google Earth images could be admitted as visual aids.
___

I ran a Lexis search and found 28 hits for "Google Earth" and 84 for "Google Maps." Although this was a surprisingly high number, none of the cases seemed to squarely address use of either for evidentiary purposes (many dealt with use of Google Maps to calculate witness fees based on the prevailing mileage rate).

It was interesting that the prosecutor did not try to use Google Maps instead of Google Earth. In any event, Google Earth and Google Maps are not the same as a random webpage or Wikipedia - in the case of Google Maps or Google Earth, the content is generated or controlled by Google. It may be fallible, but in the same way that an atlas may be. They're certainly not subject to the "anyone can put information on the web" argument that is aimed at Wikipedia and at websites of unknown origin.

The Google Earth evidence wasn't central to the case, and the prosecutor used testimony from a detective who testified as to the distances in question. What struck me even more is that the court didn't even discuss the admissibility of the cell site data to show J.B.'s approximate location. A quick Lexis search indicates that courts are willing to admit this evidence, provided that the proper foundation is laid. (See, e.g., United States v. Benford, 2010 U.S. Dist. LEXIS 56556 (N.D. Ind. June 8, 2010) (allowing the use of expert testimony along with cell site data to refute alibi).)

Other coverage: "Court Finds Google Earth Images to Be Admissible Evidence" (E-Discovery Law Alert)

Loosely related: "Nicaraguan Invasion? Blame Google Maps" [Wired]

Posted by Venkat at 03:17 AM | Evidence/Discovery

November 20, 2010

Disclosure of the Substance of Privileged Communications via Email, Blog, and Chat Results in Waiver -- Lenz v. Universal

[Post by Venkat]

Lenz. v. Universal Music Corp., Case No. C 07-03783 JF (PVT) (N.D. Cal.; Oct. 22, 2010) [pdf]

The "'Let's Go Crazy' Dancing Baby" takedown case yielded an interesting discovery ruling. Universal (the defendant) argued that: "[plaintiff] made repeated disclosures to third parties regarding her confidential communications with legal counsel and . . . referenced multiple subjects related to [the] litigation and [her] allegations before the court." Universal alleged that these disclosures "occurred in emails, electronic chats with online friends, and on [plaintiff's] personal blog located at www.piggyhawk.wordpress.com." A magistrate judge held that the plaintiff's disclosures resulted in a waiver of the attorney/client privilege with respect to this subject matter, and that Universal was entitled to conduct discovery regarding plaintiff's communications with her attorneys around these subjects.

Motivations for pursuing the lawsuit: Lenz asserted that she was pursuing the case to vindicate her First Amendment rights. Universal argued that plaintiff had an ulterior motive, and waived the privilege with respect to her motivations by (among other things) sending an email to a friend that included the following:

They [the EFF] are very, very interested in the case. I imagine so. I’ve never heard of anything like it. She [an EFF lawyer] said that Universal Music Group is creating a trend of just going all over the web claiming copyright infringement left and right & that they’re breaking laws & such to do it. So EFF is pretty well salivating over getting their teeth into UMG yet again.

Judge Trumbull held that because this email and others related to the "actual substance of her conversations with her attorneys," plaintiff waived the privilege with respect to her motivations for pursuing the lawsuit.

Communications regarding legal strategies: Universal also argued that plaintiff waived the privilege with respect to her strategies behind re-pleading the complaint, by discussing her litigation strategy in a Gmail Chat with a friend. In one chat with a friend, plaintiff stated:

we're going back to the same judge with more facts, more case law and strengthening the federal aspect. We're dropping the state charge, which was that they violated the contract w/YouTube . . . this way their threat of [h]itting me with a SLAPP suit ('pay our lawyers') is dust . . . b/c the SLAPP statute is a state thing, not a federal. If I make no state claim, they can’t respond with the SLAPP allegation . . . thing is, they’re fighting YouTube over the federal thing right now too . . . so in my case it’s like "pick a federal law you’re accusing me of breaking" it's lose-lose for them on [DMCA] front but they can’t admit publicly that they’re filing DMCA notices b/c that would obliterate the YouTube fight they’re having . . . I told [EFF counsel] that since pursuing the federal portion of the case achieves the ends I have in mind, that’s fine to drop the state portion (that they filed a false DMCA notice, tha[t] they're accusing me of copyright infringement and that a ruling in our case could clarify a cloudy decision known as "Rossi").

The court also found a waiver due to plaintiff's disclosure of her legal strategies. However, the court found that the only relevant subject matter was plaintiff's communications with counsel regarding "clarification of the Rossi decision."

Communications regarding factual allegations: As with the other two subjects, plaintiff also disclosed information regarding her discussions with lawyers around the factual allegations. For example, one (Gmail chat) exchange with a reporter included the following:

[Reporter from "Zerogossip.com"]: You contacted the Electronic Frontier Foundation. What are you hoping for?

[Plaintiff]: When I contacted EFF, I did so at the suggestion of a friend of mine who’s a lawyer in Canada. I wanted to know my rights, how to protect myself in case UPMG sued me and in what way (if any) I had infringed copyright. In discussing the situation with one of the EFF lawyers, we came to the conclusion that I did not infringe the copyright and eventually we decided to file this lawsuit.

Plaintiff also responded on her blog to a reader comment about a fair use defense:

You're right Richard. Mine’s not a 'fair use' case at all. Nor is it a parody. It's something different. I've never heard of anything like it, which is why I contacted EFF.

The court held that plaintiff's discussions of the factual allegations also resulted in a waiver.

__

Ouch. As Tom O'Toole notes, EFF is appealing this discovery order. This ruling is probably not fatal to the case, but certainly ends up being a distraction, and could yield Universal information that it could use to distract from the core issues in the case (which centers around the propriety of the takedown issued by Universal).

Much of the concern around communications in the modern era focuses on the lawyer's own communication, and the risk that this communication somehow compromises the case. It's interesting that here, the litigant's own communication is the basis for the waiver argument. It's also worth noting that pre-email/chat, Universal's lawyers would have had a much tougher time getting at this information and making this argument. They would have probably questioned plaintiff in a deposition on whether she communicated about the case with anyone and she would have either said no, or would have said that although she discussed the case in general terms, she did not discuss the facts in detail or talk about her communications with her lawyers.

This ruling is a reminder not only that counsel should be careful with their disclosures regarding pending litigation, but the parties should as well (and that the parties could probably could use reminders of this). [For what it's worth, I didn't find the magistrate judge's conclusions on the waiver issue 100% persuasive, but we'll see what the appeal yields.]

Update: the district court judge upholds the ruling: "District Court Upholds Order for Discovery Into Lenz Communications."

Previous posts on Lenz:

"Fair Use - It's the Law (for what it's worth)--Lenz v. Universal"

"Rare Ruling on Damages for Sending Bogus Copyright Takedown Notice--Lenz v. Universal"

Other coverage:

"Magistrate: Lenz Waived Attorney-Client Privilege Through Chats, Blogging" (Tom O'Toole)

Posted by Venkat at 09:19 AM | Evidence/Discovery

November 17, 2010

Request for Discovery of Facebook Profile and Photos Rejected as a Fishing Expedition -- McCann v. Harleysville Insurance

[Post by Venkat]

McCann v. Harleysville Insurance Co. (2010 NY Slip. Op. 08181) (Nov. 12, 2010)

We've blogged about several decisions involving disputes around the discovery of social network profiles. An appeals court in New York recently rejected a party's request for the contents of plaintiff's Facebook profile because the party seeking the discovery "failed to establish a factual predicate with respect to the relevancy of the evidence." The plaintiff was involved in an auto accident, and settled with the other driver, and then went after the driver's insurance company. The insurance company sought disclosure of photographs from plaintiff's Facebook profile, and sought "an authorization for plaintiff's Facebook account."

The court found that the defendant failed to put forth a sufficient factual predicate that anything relevant was contained in the profile, and thus the request smacked of a "fishing expedition." However, the court also found that the plaintiff's request for a protective order should not have been granted - i.e., defendant could come back, establish the "factual predicate," and obtain the necessary information.

As with the other cases involving the discovery of social networking profile information, this case illustrates the logistical challenges posed in these situations. The party seeking discovery should not be able to rummage around in the other side's Facebook account. On the other hand, if there is relevant evidence, the party seeking discovery should not be deprived of access to it just because it's contained in a social networking profile. (There's also the issue of whether private messages are protected from disclosure by virtue of federal statutes.)

Related posts:

"Judge Offers to Facebook 'Friend' Witnesses in Order to Resolve Discovery Dispute -- Barnes v. CUS Nashville"
"Deleted Facebook and MySpace Posts Are Discoverable--Romano v. Steelcase"
"Court Orders Disclosure of Facebook and MySpace Passwords in Personal Injury Case -- McMillen v. Hummingbird Speedway"

Other coverage:

Eric Turkewitz: "Demand for Facebook Records Rejected by NY Appellate Court"

Evan Brown: "Facebook account protected from disclosure in discovery, for now"

Posted by Venkat at 02:10 PM | Evidence/Discovery

November 02, 2010

It May be Best to Shut Down Your Facebook Account While You are on Probation -- State v. Altajir

[Post by Venkat]

State v. Altajir, AC 31375 (Conn. Ct. App. Sept. 14, 2010)

Defendant (Altajir) was involved in an accident in 2004, and pleaded no contest to one count of operating a motor vehicle while under the influence and one count of misconduct with a motor vehicle. As part of her plea agreement, she was sentence to jail for one year, and probation for five years. The court imposed a variety of conditions on her as part of her probation. Among other things, she was required to: (1) use an ignition interlock device, (2) attend school or obtain employment full-time, (3) perform community service, (4) not operate a vehicle without a valid license, (5) abstain from violating laws, and (6) refrain from leaving the state without permission.

After serving her prison term and while on probation, she was involved in another (minor) accident. The police investigation of this accident revealed that she was operating the motor vehicle which she was driving without an ignition interlock device and without a driver's license. She was hauled into court for a probation revocation hearing and at the hearing, she admitted to violating these two conditions of her probation (operating a vehicle without a license and without an ignition interlock device). The court continued the matter for disposition. At the disposition hearing, the State sought to have the defendant's probation revoked and have the defendant serve out the remaining four years of incarceration. The State put forth evidence that the defendant violated her probation as she admitted to in the revocation hearing but also in a variety of other ways. Among other things, the State sought to admit several photographs that were posted on defendant's Facebook page which "indicated that she had left the state without permission." The court admitted some of the photographs over the defendant's objections that they were cumulative and inflammatory - in admitting some of the photos, the court states:

I'm looking at these pictures, and all I can think of is, where is the remorse.

The court imposed a term of three years incarceration.

On appeal, defendant raised a variety of procedural arguments (that she did not receive fair notice that the "uncharged violations" of probation would be a factor in the sentencing hearing and that the state should have been required to prove these violations by a preponderance of the evidence). She also raised the issue that admitting the Facebook photos violated her due process rights because the photos were not reliable since they were undated (i.e., there was no evidence that the photos were taken while she was on probation).

The court finds that defendant failed to preserve the latter argument, and it's therefore only reviewable if it's an error of constitutional magnitude. The court finds that it is not an error of constitutional magnitude.

___

Not being a lawyer who practices in this realm, I don't have a sense of whether the court's ruling on the Facebook photos is correct as a matter of criminal procedure. Courts seem to often admit profile photos without much of a look into their authenticity. (See, for example, the case discussed in this post: "MySpace Evidence: Maryland Appeals Court Allows Circumstantial Authentication.") The timing of the photographs would have been important, but the appeals court's discussion doesn't have enough specifics to get a sense of whether the trial court even looked into the issues of authenticity or reliability with respect to the photographs. Either way, one thing that struck me is that this isn't the first time the defendant's Facebook photos were used against her. As the court notes, defendant's "Facebook profile and accompanying photographs were taken into account when determining the defendant's sentencing and probation agreement for [the initial violations]." Ouch.

I always wonder in these cases how the state obtains access to the photos in question. If defendant's Facebook profile was set to public and her entire profile (including photos) were freely searchable, then she has no one to blame but herself. Interestingly, I came across a post that mentions a growing trend that as a condition of probation, probationers are required to be Facebook friends with their probation officers (mentioned in this article). When you consider all of this, maybe it's best to shut down your Facebook or MySpace profile while you are on probation, at least if you are not going to able to comply with your probation conditions?

As a side-note, the bulk of the social networking profile criminal cases used to be MySpace cases. Facebook cases are more and more becoming a part of the mix now.

Added: "Facebook [status update] leads authorities to Calif. parole jumper"

Related:

"Facebook Is Not The Place To Brag About Your Alleged Act Of Vandalism" (Smoking Gun) (Nov. 2, 2010)

"Facebook Friending leads to Jail" (Discovery News) (Aug. 27, 2010)

"Courtroom Technology Tips From a Tech-Savvy Judge" (ride the lightning) (Oct. 27, 2010):

I mentioned to the judge that a Wyoming judge had told us during a CLE that, as a condition of probation, anyone with a Facebook page must agree to "friend" his or her probation officer with no restrictions as to what the officer can see. To my surprise, that is apparently beginning to happen in Fairfax County has well . . . .

Posted by Venkat at 04:43 PM | Evidence/Discovery

October 30, 2010

Message Board Operator Fights Discovery Order Requiring Disclosure of Identities and Private Messages -- Concerned Citizens for Crystal City v. City of Crystal City

[Post by Venkat]

Concerned Citizens for Crystal City, et al. v. City of Crystal City, et al., No. ED 94135 (Mo. Ct. App.; Oct. 26, 2010)

In 1991, Pittsburgh Plate and Glass Company shut down a factory in Crystal City (Missouri), and Crystal City undertook efforts to redevelop this property. Wings Enterprises expressed an interest in the property and met with the City regarding potential redevelopment efforts. Thomas Kerr, who owned the adjoining property formed Concerned Citizens for Crystal City, a non-profit that opposed the Wings redevelopment proposal (and presumably, had its own ideas for what form the redevelopment should take).

William Ginniver became the president of CCCC and set up a forum for concerned citizens to discuss the Wings proposal. Posters could post anonymously but had to register by providing an email address in order to post to the forum. Ultimately, the City approved the Wings proposal, and CCCC filed suit, alleging among other things that the City violated Missouri's Sunshine Law in connection with the redevelopment discussions. Wings intervened in the lawsuit as a defendant.

In the course of discovery, Wings sent over a request for production to Ginniver seeking:

a complete copy, in native format, of all information in [Ginniver's] possession that had been posted on the domain http://www.clearpillar.com;

a complete copy, in native format, of all databases in [Ginniver's] possession related to any forum that [had] appeared on http://www.clearpillar.com, with all copies to include, among other things, the IP addresses related to each post, member names and email addresses, and the text of private messages on the database.

Ginniver objected, and the trial court largely rejected his objection, ordering him to produce "a full and complete copy, in native format, of all information in his possession or control, that [had] been posted [to http://www.clearpilllar.com]." The court also ordered Ginniver to answer deposition questions regarding the identity of users who posted on the forum.

Ginniver filed an interlocutory appeal of the discovery order but neither the Court of Appeals nor the Missouri Supreme Court decided to hear the appeal. Ginniver then produced a copy of all public messages posted to the forum but withheld "unposted private messages," and "any information that could have uniquely identified the users of the forum." In response, Crystal City and Wings moved for default judgment as a sanction. The trial court granted this request.

The Court of Appeals held that dismissal as a sanction was overly drastic, and the discovery requests were overly broad to begin with. The content of the postings were sufficient for the City or Wings to seek identification of particular posters (or bring this issue before the court at a later time). The court cited to the rules regarding protective orders and hinted that a previously offered stipulation by defendants (to a protective order) may sufficiently address any concerns on the part of the posters (or on Ginniver's part), and that if CCCC failed to comply with a properly narrowed discovery request, the sanction of dismissal may then be appropriate.

__

This looks like a narrow escape for plaintiff from what looks like an initial bad ruling from the trial court. The Court of Appeals has an opportunity to clear up confusion regarding the various categories of information, but beyond providing some vague guidance, the Court of Appeals did not give the trial court much to work with.

Status of private messages: It appears that Ginniver sought to withhold private messages, but the court didn't delve into whether the messages were truly private and what that would have meant for purposes of discovery. I recently posted on a decision from Pennsylvania ordering disclosure of a plaintiff's log-in and passwords for his Facebook and MySpace pages, where the court didn't delve into the various categories of information and whether they were truly public or private. ("Court Orders Disclosure of Facebook and MySpace Passwords in Personal Injury Case -- McMillen v. Hummingbird Speedway.") That decision also did not discuss the effect (if any) of the Stored Communications Act on private messages. This court's decision suffers from many of the same problems.

Identification of anonymous posters: Although the court alludes to the standards for when a litigant can identify an online poster, and hints that First Amendment interests are at stake here, it's unlikely that defendants would satisfy any of the standards for identifying all of the posters. This case involves citizen communications criticizing the government's activity, and the First Amendment interests are therefore particularly strong. Even if it did not announce the applicable test, it would have been nice for the court to recognize this, and send a message that a fishing expedition seeking to identify all of the posters was inappropriate.

This case looks like a good candidate for intervention by one of the many public interest groups who have fought (and won) battles around online anonymity.

Posted by Venkat at 01:50 PM | Evidence/Discovery , Privacy/Security

October 24, 2010

Court Orders Disclosure of Facebook and MySpace Passwords in Personal Injury Case -- McMillen v. Hummingbird Speedway

[Post by Venkat]

McMillen v. Hummingbird Speedway, Inc., et al., Case No. 113-2010 CD (Pa. Ct. of Common Pleas) (Sept. 9, 2010)

There have been several recent cases dealing with discovery of social networking evidence in a civil dispute. A central issue in the background of all these cases is that an opponent is typically entitled to relevant information from the other side's social networking profiles, but turning over the entire profile wholesale may not adequately protect the privacy interests of the party whose information is turned over. One court in Pennsylvania didn't bother grappling with this dispute, and went to the extreme. The court didn't just order relevant portions of the profiles turned over, it granted defendant's discovery request seeking the plaintiff's passwords (i.e., ordered the plaintiff to turn over his passwords to the defendant).

Background: The basic facts should sound familiar by now. Plaintiff suffers personal injury (in this case he was rear-ended during a "cool down lap" following a stock car race at the defendant's track). Following the injury and the lawsuit, plaintiff posts material about his recreational activities (in this case a fishing trip and attendance at the Daytona 500 race). Defendant seeks full discovery of plaintiff's social networking sites to look for evidence which discredits plaintiff's claim that plaintiff is unable to enjoy life as a result of the injury.

Here, rather than asking the plaintiff to turn over the content of the profiles or relevant information in the profiles, counsel for defendant actually asked plaintiff for the login names and passwords for any of plaintiff's social networking accounts.

The court's ruling: The court looks to whether the information is privileged under Pennsylvania law. The court starts off from a skeptical point, noting that no "social network site privilege" had been adopted by the legislature or appeals courts. The court is reluctant to recognize a new privilege but nevertheless looks at the test for when a privilege applies. After walking through the four factor test that a party seeking to assert a privilege must satisfy, the court focuses on confidentiality, which is one of the four elements. With respect to confidentiality of communications, the court cites to the Facebook and MySpace terms of service which (according to the court) make clear to users that there should be no expectation of confidentiality in anything that is posted to (or sent through) Facebook or MySpace. The court additionally thinks that the social nature of the sites make any expectation of confidentiality on the users' part unrealistic:

Facebook, MySpace, and their ilk are social network computer sites people utilize to connect with friends and meet new people. That is, in fact, their purpose, and they do not bill themselves as anything else. Thus, while it is conceivable that a person could use them as forums to divulge and seek advice on personal and private matters, it would be unrealistic to expect that such disclosures would be considered confidential.

This, along with several provisions of the Facebook and MySpace terms lead the court to reject the privilege. The court also applies Wigmore's test for when it is appropriate to recognize a privilege, and comes to the same conclusion:

no person choosing MySpace or Facebook as a communication forum could reasonably expect that his communications would remain confidential, as both sites clearly express the possibility of disclosure. Confidentiality is not essential to maintain the relationships between and among social network users, either. The relationships to be fostered through those media are basic friendships, not attorney-client, physician-patient, or psychologist-patient types of relationships, and while one may expect that his or her friend will hold certain information in confidence, the maintenance of one's friendships typically does not depend on confidentiality. [emphasis added]

Ouch!
__

This seems like a pretty untenable conclusion, for a variety of reasons.

For starters, the court totally glosses over the relevance analysis. There is no way that all of the information in the plaintiff's social networking site can be relevant to the dispute, and the court's decision grants defendant access to both relevant and irrelevant information. There's also information that is likely to be private or sensitive and which may subject the plaintiff to embarrassment. State evidence rules likely protect against disclosure of this type of information, or at least place limitations on the use of this information, and the court's order doesn't take this into account at all.

The court's read on Facebook and MySpace's ability to disclose or access the content of profiles also seems off. As mentioned in Crispin v. Audigier, these sites make available private messaging functionality that is similar to email. Several courts have concluded private messages sent through social networking sites are protected from disclosure by the Stored Communications Act. The court's decision here contains no discussion of this, and disclosure may even violate the Stored Communications Act. Although these companies make private messaging and email services available, this should not cause them to be viewed as a third party "in whose presence" the communication is made. (Accepting the court's view would mean that communications made through Google, Yahoo, and every other ISP or email provider would not be confidential and could never be protected by any privilege.)

There's also the issue that disclosure of the passwords may provide defendant access to plaintiff's other accounts (such as his account with Amazon or his bank account), given that people use the same password among multiple sites. The password also allows the defendant to post as the plaintiff, to edit the plaintiff's profile, use or download apps, change privacy settings (etc.). I would guess there's some implied obligation on the part of the defendant (or its counsel) to not misuse the password, but the court did not even bother spelling out that the defendant had to maintain the password as confidential or not use it for any of these purposes.

Finally, there's the issue that disclosure of the password and access by the defendant probably violates the Facebook and MySpace terms of use!

One hopes that the court takes a second look at this and changes course (or that the decision will be reversed on appeal), because it certainly seems like there are some key issues that the court did not take into account. Interestingly, I don't think Facebook weighed in on this (it may not have had notice). It should weigh in.

Takeaways for litigants: One big takeaway for litigants is that anything posted to social networking sites is fair game, among other reasons, because courts may not appreciate the nuances between truly private messages and public posts. There are gradations of private information, and Facebook itself says that it gives users the tools to control how private or public they want their messages to be. (The private user group posts from the Finkel v. Facebook case is a good example of information that's sort of in-between.) In any event, courts don't always seem sensitive to the nuances here, and as a result, information that a user reasonably thought was private may end up being disclosed in litigation. The prudent course is to not post information on (or even send information through) a social network that you don't want to disclose to the world at large.

Takeaways for lawyers: A possible takeaway for lawyers as well. As new modes of communication emerge, and lawyers start to embrace these methods of communication, there's a question of whether lawyers should worry about things like confidentiality or attorney/client privilege for these types of communications. The obvious concerns are the social networks themselves, third parties, and communication snafus, but this case illustrates that courts may not always get it right when it comes to these communications. Lawyers probably would be wise to adopt a policy of not engaging in confidential or privileged communications with clients via social networking sites (at a minimum, until courts reach clarity on issues such as the one presented in this case).

(h/t K&L Gates's Electronic Discovery Law)

Related posts:

"Judge Offers to Facebook 'Friend' Witnesses in Order to Resolve Discovery Dispute -- Barnes v. CUS Nashville"
"Deleted Facebook and MySpace Posts Are Discoverable--Romano v. Steelcase"
"Facebook Messages/Wall Posts, Civil Discovery, and the Stored Communications Act -- Crispin v. Audigier"

Posted by Venkat at 10:24 AM | Evidence/Discovery , Privacy/Security

September 29, 2010

Deleted Facebook and MySpace Posts Are Discoverable--Romano v. Steelcase

By Eric Goldman, with additional comments from Venkat

Romano v. Steelcase Inc., 2010 WL 3703242 (N.Y. Sup. Ct. Sept. 21, 2010).

On my personal blog, I have repeatedly blogged about plaintiffs who tell one story in court only to have that story undone by their postings to social networking sites. See, e.g., Sedie v. US, People v. Franco (despite the tragedy, my personal favorite) and Embry v. State.

This case is in the same vein. Romano claims that she is largely bedridden/housebound, but her public Facebook pictures show her apparently enjoying herself away from home. The defense requests access to her non-public posts on Facebook and MySpace, which the judge grants.

The short opinion focuses on the defense's ability to access the private posts, but the actual order covers both current as well as deleted material. Specifically, the court orders "Defendant STEELCASE's motion for an Order granting said Defendant access to Plaintiff's current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information, is hereby granted in all respects." The court didn't discuss the deleted material separately in its analysis, but this seems like a gotcha. Once a person posts material to Facebook or MySpace, there may not be a meaningful "undo"--even deleting it does not eliminate the material as future discoverable evidence for the duration of Facebook's and MySpace's retention periods.

[This raises the related Q of how long the sites archive deleted material. Facebook's privacy policy had the opaque statement "Removed and deleted information may persist in backup copies for up to 90 days, but will not be available to others." Putting aside the ambiguity of not being available to others--an untrue statement given the subsequent privacy policy statement about cooperating with legal requests--I couldn't tell if this was the retention policy. So, if I delete a photo from Facebook on day 1, does this statement mean that the photo will become undiscoverable by day 91?]

[UPDATE: I had a few conversations with Facebook and my understanding is that deleted photos indeed would be unavailable for discovery within 90 days in many cases and perhaps substantially less time. Other content items are more complicated, but overall Facebook does not retain complete copies of "everything" indefinitely.]

This case only tells us what we already knew--never post anything online that will be inconsistent with the story you're planning to tell others. The inconsistent material can surface even if the post is made in a non-public venue and even if you delete it later. Unfortunately, this well-known "rule" appears to be about as teachable as the rules regarding making sex tapes.

Other comments on this ruling:
* Kashmir Hill, pointing out the seeming inconsistency of this ruling with the Crispin ruling from earlier this year. I do think it's conspicuous that the court seems to treat all material on Facebook as equally discoverable, even though some material might be governed as private communications under the ECPA and other material clearly wouldn't be. An apropos academic article worth checking out: Lior Strahilevitz, A Social Networks Theory of Privacy (2004).
* Evan Brown
* Mike Masnick
* Bruce Boyden

___

Venkat's comments: I don't know when people will learn the "never post anything online that will be inconsistent with the story you're planning to tell others" lesson. Perhaps a public awareness campaign is in order? People also tend to be surprised that, absent a specific privilege, personal communications, recollections, notes, and even a party's diary are discoverable in a civil lawsuit. In fact, this evidence often tells the most accurate version of the story from the person's perspective.

The wrinkle is the federal statute prohibiting the disclosure of private electronic communications such as emails, and on this basis, at least one court has ruled that the social networking site should not turn over private Facebook or MySpace messages to a party who issues a subpoena. ("Facebook Messages/Wall Posts, Civil Discovery, and the Stored Communications Act -- Crispin v. Audigier.") But this does not mean that the party seeking the discovery is not entitled to the relevant information. It just means that it should not be turned over by the social networking site absent a waiver or consent, and there is nothing to stop a court from requiring you to consent in order to proceed with your claims. I can't see any universe in which you can bring a lawsuit alleging emotional damages or that an injury affected your lifestyle, and then claim your Facebook or MySpace postings are off limits. (I think it's worth being clear about the different types of postings as well: there are truly private messages (which are similar to emails) and there are postings for your "friends," which are quasi-public anyway. All of this should potentially be discoverable.)

This scenario presents an awkward logistical issue. Steelcase is entitled to postings from the plaintiff's Facebook and MySpace pages, but does this mean that Steelcase can just rummage around in the plaintiff's accounts? This seems invasive. It allows Steelcase to make the decision of what is and is not relevant and, in the process, get access to potentially sensitive and private information that is not relevant to the lawsuit in any way. I suppose the judge could offer to become Facebook friends with the litigants, but this seems clunky at best. ("Judge Offers to Facebook 'Friend' Witnesses in Order to Resolve Discovery Dispute -- Barnes v. CUS Nashville.") Other alternatives are to have a neutral third party view the material and decide what is relevant (this is expensive) or to require Facebook to provide a log of account activity (doesn't necessarily work with pictures).

I'm not a big fan of courts citing to a bunch of company-drafted policies and concluding that Facebook and MySpace posts should be disclosed because no one expects them to be private anyway. Information that is stored in social networks can be used by several different parties, including law enforcement, the social network itself, and an outsider seeking information in the context of a civil lawsuit. To say that there is no expectation of privacy in your postings obscures the fact that these parties can access the information in different ways and subject to different restrictions. Does the court's take on the privacy expectations of Facebook and MySpace users mean that law enforcement can freely access your private Facebook posts? This doesn't seem like a tenable conclusion.

Finally, the fact that the court allowed access to certain deleted posts is interesting. I'm sure parties often receive advice to delete their accounts. Setting aside spoliation of evidence issues, as a practical matter, this may just not be an effective way to delete the material you want deleted.

Posted by Eric at 08:46 AM | Evidence/Discovery , Privacy/Security | TrackBack

June 19, 2010

MySpace Photo and Internet Gang Roster Evidence Improperly Admitted -- People v. Beckley

[Post by Venkat]

People v. Beckley, Case No. B212529 (Cal. Ct. App. June 9, 2010)

Two defendants were convicted of a gang-related homicide in this case.

MySpace Photos: The girlfriend of one of the defendants offered an alibi that one of the defendants was babysitting her child at the time of the shooting. She also testified that the defendant ceased gang involvement (at her request) after the two became involved. In order to rebut the gang affiliation testimony, the prosecution offered a photograph of the girlfriend flashing a gang sign - the photograph was downloaded from the MySpace page of one of the defendants. The prosecution relied on the testimony of the detective who downloaded the photograph.

The court of appeals held that admission of the photograph was error (unfortunately for the defendants, the court held that this error was harmless). The court noted that there are two methods for authenticating a photograph: (1) testimony of a person who was present when the photograph was taken and (2) expert testimony that the photograph is not "a composite and had not been faked," along with foundational testimony. Here, neither method of authentication was used. The court urged particular caution when it came to digital photos and photos found on the internet:

Although defendants conceded that the face in the MySpace photograph was Fulmore's, neither method of authentication recognized in Bowley qualified the photo for admission as accurately depicting that Fulmore had assumed the pose shown in the photograph. [The detective] could not testify from his personal knowledge that the photograph truthfully portrayed Fulmore flashing the gang sign and . . . no expert testified that the picture was not a "'composite' or 'faked'" photograph. Such expert testimony is even more critical today to prevent the admission of manipulated images than it was when Doggett and Bowley were decided. Recent experience shows that digital photographs can be changed to produce false images. (See e.g. U. S. v. Newsome (3d Cir. 2006) 439 F.3d 181, 183 [digital photographs used to make fake identification cards].)
. . . .
Indeed, with the advent of computer software programs such as Adobe Photoshop "it does not always take skill, experience, or even cognizance to alter a digital photo." (Parry, Digital Manipulation and Photographic Evidence: Defrauding The Courts One Thousand Words At A Time (2009) 2009 J. L. Tech. & Pol'y 175, 183.) Even the Attorney General recognizes the untrustworthiness of images downloaded from the internet, quoting the court's warning in St. Clair v. Johnny's Oyster & Shrimp, Inc. (S.D. Tex 1999) 76 F. Supp.2d 773, 775 that "'[a]nyone can put anything on the Internet. No web-site is monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation. Moreover, the Court holds no illusions that hackers can adulterate the content of any web-site from any location at any time.'"

Online Gang Roster: The prosecution also sought to show that defendants belonged to a gang (the Southside Compton Crips) and as evidence offered a roster which appeared on a web page.

The court found that this evidence was also improperly admitted. The detective admitted that "he did not know who authored the roster." Although the detective claimed that "they themselves put [the list] together," he did not explain the basis for this assertion. The court noted that the issue with respect to authenticity was not "whether the computer's printer could be trusted to reliably print out what was . . . stored on some site but whether the content of what was on the site was reliable."

Unfortunately for defendants, the court held that admission of this evidence was also harmless error. This is not the first time a court has found that MySpace gang affiliation evidence was improperly admitted but that the admission was harmless.

Additional Coverage: "'Unauthenticated' Photo From Website Held Inadmissible" (Metropolitan News-Enterprise)

Related: "MySpace Evidence: Maryland Appeals Court Allows Circumstantial Authentication"

Posted by Venkat at 11:25 AM | Evidence/Discovery , Publicity/Privacy Rights

June 14, 2010

West Virginia Appeals Court Grants New Trial Based in Part on Undisclosed MySpace Friendship -- State v. Dellinger

[Post by Venkat]

State v. Dellinger, Case No. 35273 (Va.Ct. App. June 3, 2010)

Dellinger is a criminal case where the defendant was accused of channeling funds (which were intended for the purpose of hiring additional DUI-enforcement personnel) to pay for his own inflated hours spent on administrative duties. The defendant was employed as a deputy Sheriff. He moved for a new trial based on the conduct of a juror named Amber Hyre.

Prior to the trial, Ms. Hyre sent defendant a MySpace message:

Hey, I don't know you very well But I think you could use some advice . . . I can tell ya that God has a plan for you and your life. You might not understand why you are hurting right now but when you look back on it, it will make perfect sence. [sic] I know it is hard but just remember that God is perfect and has the most perfect plan for your life. Talk soon!

During trial, the same juror also posted a message on her MySpace page that she "just got home from Court and getting ready to get James and Head to church! Then back to court in the morning!" [She described her "mood" as "blah".]

The court set aside the verdict and granted a request for a new trial. Did the juror's MySpace postings form the basis of the court's decision?

The court focused on the fact that the juror was not candid about her friendship with the defendant or about her relationship with other witnesses. During voir dire, she never acknowledged a connection with either the defendant or with other witnesses, but it turned out that she used to live in the same apartment complex as the defendant. The juror was also related by marriage to one of the witnesses and her brother-in-law worked for another witness. Although the trial court found that these contacts were "minimal," and found her to to a "fair and impartial juror," the court of appeals disagreed.

The court of appeals focused on the juror's lack of candor and found that bias on the juror's part must be presumed because she failed to disclose connections to the defendant and two witnesses, despite her connections and despite the fact that other jurors disclosed their connections. Although she tried to justify the fact that she didn't disclose that she "knew" the defendant, because she didn't 'personally know him,' the court rejected her justification, pointing to the fact that she knew the defendant at least well enough to give him advice via MySpace. Although the appeals court found that the trial court erred in nor granting the request for a new trial, the court agreed with the trial court that the juror's posting about the trial was "benign in nature." Standing alone, this would not be sufficient for a finding of juror misconduct.

The case is a reminder that social networking contacts can undermine a verdict. That said, it's worth noting that a party's invocation of the Facebook/Twitter/MySpace mantra alone is not likely to be dispositive.

One interesting aspect of the case is the juror's own views on whether she "knew" the defendant. She testified at the juror misconduct hearing that although she knew him, she didn't really know him:

I knew in my heart that I didn't know him . . . I should have at least said that . . . he was on MySpace, which really [wasn't] important, I didn't think.

The trial judge's comments also noted the fact that the trial took place in a "rural area with a small population . . . ." There was ample evidence in the case that the juror was being less than candid, but it's possible that her conception of MySpace friendship may have differed from the standard definition of friendship, particularly given where she lived. Additionally, at least one court has recognized that Facebook friends may not be all that they are cracked up to be. (Quigley Corp. v. Karkus, 2009 U.S. Dist. Lexis 41296 (E.D. Pa. May 15, 2009) ("'friendships' on Facebook may be as fleeting as the flick of a delete button").) Maybe she was right that she didn't 'know' the defendant, at least based on the MySpace connection? Although a jury instruction instructed the jurors on the use of technology and social media, I'm guessing that the questioning at voir dire did not spell out social networking relationships.

Additional coverage:

Molly DiBianca: "W. Va.: New Trial for Defendant Who Was MySpace Friend of Juror"

Health Care Law Blog: "Reversal of Conviction Because Undisclosed MySpace Friendship Between Defendant and Juror"

Posted by Venkat at 07:45 AM | Evidence/Discovery

June 09, 2010

Judge Offers to Facebook 'Friend' Witnesses in Order to Resolve Discovery Dispute -- Barnes v. CUS Nashville

[Post by Venkat]

Barnes v. CUS Nashville, LLC, (M.D. Tenn) (June 3, 2010)

I mentioned Barnes v. CUS Nashville in my post about Crispin v. Audigier, a case where a court found that production of private Facebook messages and postings pursuant to a civil subpoena would be barred by the Stored Communications Act. In Barnes, the court also dealt with a civil subpoena to Facebook, and summarily denied a motion to compel, finding similarly that the Facebook information sought by the defendant was covered under the Stored Communications Act. The parties in Barnes engaged in further wrangling (wrangling is an understatement) over the Facebook information of plaintiff and other witnesses, and the magistrate judge came up with an interesting way to resolve the underlying discovery issues.

Barnes is a slip and fall case where plaintiff alleged claims based on injuries arising out of her fall one evening at the "Coyote Ugly" saloon in Nashville:

On or about September 19, 2008, Plaintiff was a business invitee of the Saloon and in that capacity was encouraged by employees of the Saloon to climb onto the Saloon's bar to dance. At the time of said encouragement, the Saloon's bar was wet and extremely slick. As a result of the Saloon's employee's encouragement, Plaintiff did attempt to climb onto the bar to be photographed with her friends. In so doing, Plaintiff slipped on the wet and slick bar and fell backwards a considerable distance, striking the back of her head on the ground.

Defendant subpoenaed Facebook for plaintiff's Facebook information, including photos of plaintiff and her friends dancing on the bar. The court quashed the subpoena to Facebook, and in response, defendant issued a subpoena to plaintiff's friends, who are witnesses in the case. The defendant sought photos posted by plaintiff and her friends that depicted the events on the night in question. The court finds that the subpoenas issued to these witnesses cannot be enforced by the district court in Nashville, and if defendant wants to move to compel, it must do so in Colorado and Kentucky, the districts where the subpoenas were issued out of.

The magistrate judge chastises both parties for their failure to cooperate in the discovery process, and specifically calls out the defendant for its "mishandling of the Facebook subpoena." The judge then offers to create a Facebook account "for the sole purpose of reviewing photographs and related comments in camera . . . and disseminat[ing] any relevant information to the parties." Assuming the non-party witnesses (who will be located/contacted via email (!)) will accept the judge's Facebook friend requests, the magistrate judge agrees to review their Facebook information, provide any relevant information or photographs to the parties, and then close the Facebook account. (It doesn't seem like the court will store copies of the non-relevant portions of the Facebook pages, even under seal.)

I have to give credit to the court for coming up with this novel approach for resolving this issue. And they say judges are not technically savvy. It's nice to see a member of the judiciary who doesn't share the over-the-top view of Facebook friending that's held by the bar regulators in Florida. (That said, there may be a slew of issues lurking in the background here.)

To Magistrate Judge Brown: Nice work your honor! You should keep in mind those pesky default privacy settings on Facebook. We wouldn't want you to friend the witnesses, and in the process, disclose to the entire world the private contents of their Facebook pages. Alone these lines, I don't know the answer to this, but you should confirm the Facebook terms of use to make sure that your creation of a Facebook page and friending of these witnesses doesn't somehow run afoul of the Facebook terms of service.

Posted by Venkat at 10:56 AM | Evidence/Discovery , Privacy/Security

June 02, 2010

Facebook Messages/Wall Posts, Civil Discovery, and the Stored Communications Act -- Crispin v. Audigier

[Post by Venkat]

Crispin v. Audigier, Case No. CV 09-09509 MMM (JEMx) (May 26, 2010)

With the proliferation of the use of social network profile evidence, it was only a matter of time before a court dealt with the issue of whether you can subpoena someone's Facebook page in a civil lawsuit. A judge in the Central District of California looks at the issue in Crispin v. Audigier [scribd].

Facts: Crispin sued Audigier, alleging that Crispin granted Audigier an oral license to use some of Crispin's works of art in connection with the manufacture of garments by Audigier. Crispin alleged that Audigier (1) failed to include Crispin's logo on the garments; (2) wrongly attributed Crispin's work to another artist; and (3) wrongly sublicensed Crispin's copyrighted material without permission. Crispin brought a variety of claims, including copyright infringement claims. Audigier subpoenaed third party businesses, including Media Temple, Facebook, and MySpace, seeking communications between Crispin and a tattoo artist (those communications which referenced or related to Audigier). [If I were the judge, I would have said this was awfully close to fishing expedition territory.]

14 days after Audigier served the subpoenas, Crispin moved to quash the subpoenas. [Facebook, MySpace, and Media Temple did not appear or file pleadings.] The magistrate judge found that the Stored Communications Act did not apply, and in any event only precluded voluntary disclosure (and did not apply to compelled disclosure pursuant to a civil subpoena). Finally, the magistrate judge found that the SCA only prohibited disclosure of communications held "in storage," which wasn't the type of information covered by the subpoena.

The Court's Ruling: The court largely reverses Magistrate Judge McDermott's ruling in an order that contains a lengthy discussion on the applicability of the Stored Communications Act to Facebook and MySpace profiles, wall posts, and messages. I can't tell if this case breaks any new ground (or whether the case gets it right), but given the growing importance of social networking evidence, I thought it was worth mentioning. (This post by David Johnson provides a good, basic overview of the issues at play: "Employer Access of Employee Digital Communications and Federal Wiretap Laws: It's Easier to Be Found Immune if the Communications Reside on Your Servers.")

A summary of the court's order:

1. The Stored Communications Act (passed in 1986) is woefully out of date, and was "enacted before the advent of the [web] and before introduction of the web browser . . . " In those days, "few could afford to spend hours casually exploring . . . [the internet] . . . ."

2. A third party whose information is sought by this type of a subpoena has "standing to move to quash a subpoena seeking personal information protected by the SCA."

3. 18 U.S.C. sec. 2703(e) does not permit disclosure pursuant to a civil subpoena.

4. Do not, under any circumstances, cite to Wikipedia as a source for a key factual issue (the court drops a footnote citing to Badasa v. Mukasey ("Respondent is admonished from using Wikipedia as an authority in this District again. Wikipedia is not a reliable source at this level of discourse.")). [emphasis added]

5. Facebook, Media Temple, and MySpace provide "private messaging or email services . . . such services can constitute ['electronic communications services'] . . . ." Case law looking to the treatment of private BBS services is helpful. Public BBS services are not entitled to protection under the SCA.

7. The privacy settings of services such as Facebook affect the outcome:

[since] Facebook permits wall messages to 'be viewed by anyone with access to the users profile page'. . . there is no basis for distinguishing between a restricted-access BBS and a user's Facebook wall or Myspace comments. There similarly is no basis for distinguishing between Media Temple's webmail and Facebook's and MySpace's private messaging, on the one hand, and traditional web-based email on the other. As a consequence, the court concludes that each of Media Temple, Facebook, and MySpace is an ECS provider.

8. That Facebook, MySpace and Media Temple are ECS providers doesn't end the analysis. "The court must also determine whether the information sought by the subpoenas . . . constitute 'electronic storage' within the meaning of the statute."

9. Citing to the City of Detroit text messaging decision (Flagg v. City of Detroit) the court notes that "an ECS provider [becomes] an RCS [remote computing service] provider after a communication has been read and stored." It seems factually unclear (but legally relevant) as to whether the services provide storage or backup/archival services.

10. Unlike the "messages," the "Facebook wall and MySpace comments present a distinct and more difficult question":

in the context of a social-networking site such as Facebook or MySpace, there is no temporary, intermediate step for wall postings or comments. Unlike an email, there is no step whereby a Facebook wall posting must be opened, at which point it is deemed delivered. Thus a Facebook wall posting or a MySpace comment is not protectable as a form of temporary, intermediate storage.

The court concludes that "the postings, once made, are stored for backup purposes . . . Facebook and MySpace are ECS providers as respects wall postings and comments. . . ."

11. In the alternative, the court holds that Facebook and MySpace are RCS providers with respect to the wall postings and comments.

End Result: the court quashes the portions of the Facebook and MySpace subpoenas that sought "private messaging," and remands for further development of the record on the wall postings and comments.
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It's a pretty dense order that is worth reading, if nothing, to get a sense of the complexity of the issues that arise in this context, and the lay of the land as far as case law.

From a practical standpoint, obtaining Facebook messages and private profile information in a civil lawsuit seems fairly tricky (although judging from media reports, people must do it all the time). Assuming you can't get access to some or all of this information through a subpoena, one option is to get the party (whose records are sought) to sign a consent or waiver. This has the downside of giving the party seeking the information access to all of the witness's information, including irrelevant, privileged, or other information that should remain private. As best as I know, Facebook doesn't perform e-discovery services on the side - you can't provide Facebook a set of search parameters and get Facebook to produce information that falls under those parameters. (Here's a good post on the topic, with references and suggestions: [pdf] "Obtaining Records From Facebook, LinkedIn, Google and Other Social Networking Websites and Internet Service Providers.")

Another interesting aspect of the dispute is that Facebook didn't appear or file any pleadings. I assume Facebook has a blanket policy objecting to these types of subpoenas, but maybe timing was an issue here? In contrast, Facebook recently successfully quashed a subpoena issued to it in another civil case (Barnes v. CUS Nashville, LLC, No. 3:09-0764 (M.D. Tenn.) (May 27, 2010)). There, the magistrate judge concluded that "the SCA prohibit[ed] the disclosure of [the sought after] information in response to a subpoena" [citing Flagg v. City of Detroit].

Finally, the court looks to the effect of privacy settings for Facebook pages. I wonder if the ability of Facebook friends to "share" postings affects the outcome? How about Facebook's constantly changing privacy policy and settings?

In any event, parties (employers, and even lawyers) should tread carefully here. See, e.g., Theofel v. Farey-Jones and Hillstone Restaurant Group v. Pietrylo.

Posted by Venkat at 08:13 AM | Evidence/Discovery , Privacy/Security

May 28, 2010

MySpace Evidence: Maryland Appeals Court Allows Circumstantial Authentication -- Griffin v. Maryland

[Post by Venkat]

Griffin v. Maryland, Case No. 1132 (Md. Ct. App.) (May 27, 2010) [pdf]

Facts: Defendant Griffin was convicted of murder. The first trial ended in a mistrial. The underlying facts were that the defendant allegedly got into an argument with the victim at a party, pursued the victim into the bathroom, and shot him.

At the first trial, one of defendant's cousins (Gibbs) testified that the defendant was standing right next to Gibbs, and that defendant did not enter the bathroom. On retrial, Gibbs changed his testimony and testified that he saw the defendant pursue the victim into the bathroom.

In order to explain the discrepancy in Gibbs's testimony, the prosecutor argued that the defendant's girlfriend Jessica Barber "had threatened [Gibbs] before the first trial." In connection with this argument, the prosecution offered Ms. Barber's MySpace profile page which contained the following blurb:

FREE BOOOZY!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!

Ms. Barber was not called to authenticate the MySpace page. The prosecution instead called a police officer who testified that he visited the website on December 5, 2006, the date on the printout of the page.

The Court's Ruling: Defendant argued that "the State came nowhere near authenticating the contents of the MySpace page as statements by Barber." The prosecution argued that the foundational evidence was sufficient to support "a reasonable inference by the jury that the printout was what it purported to be - Jessica Barber's MySpace website."

The court walks through the rules for authentication, includes an obligatory reference to articles about the growth and increased use of social networking profiles, and cites to a slew of law review articles on the evidentiary issues arising from the use of "social media networking site" evidence. The court also acknowledges that "users of social media Web sites, blogs, chat rooms, and discussion forums may post messages anonymously or under pseudonyms." Finally, the court notes the distinction between admitting MySpace "messages" and chat logs on the one hand, and admitting the profile printout on the other hand.

The court's ultimate conclusion?

We see no reason why social media profiles may not be circumstantially authenticated in the same manner as other forms of electronic communication - by their content and context . . . . The MySpace profile printout featured a photograph of Ms. Barber and appellant in an embrace. It also contained the user's birth date and identified her boyfriend as "Boozy." Ms. Barber testified and identified appellant as her boyfriend, with the nickname of "Boozy." When defense counsel challenged the State to authenticate the MySpace profile as belonging to Ms. Barber, the State proffered Sergeant Cook as an authenticating witness. He testified that he believed the profile belonged to Ms. Barber, based on the photograph of her with appellant; Ms. Barber's given birth date, which matched the date listed on the profile, and the references in the profile to "Boozy," the nickname that Ms. Barber ascribed to appellant.

The court rules that the profile printout was properly admitted and rejects defendant's arguments that the printouts should have been authenticated "either by the author or [by] expert information technology evidence."

Commonwealth v. Williams: In contrast to the approach taken by the court in Griffin, the Massachusetts Supreme Court recently held in Commonwealth v. Williams that MySpace messages were not sufficiently authenticated, absent technical evidence. Williams involved MySpace messages introduced - also in an alleged witness intimidation scenario - to explain a witness's reluctance to testify and why she may have feigned lack of memory. The prosecution alleged that the defendant's brother sent the witness intimidating messages through MySpace, and offered the messages as evidence. The prosecution offered the testimony of the witness (who received the messages), who testified that the sender was the defendant's brother, that "he had a picture of himself on his MySpace account, and that his MySpace name was 'doit4it.'"

The court found that the messages were not properly authenticated:

while the foundational testimony established that the messages were sent by someone with access to [the sender's] MySpace Web page, it did not identify the person who actually sent the communication. Nor was there expert testimony that no one other than [the sender] could communicate from that Web page.

Although the court held that the messages were improperly admitted, the court concluded that this was harmless error.
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With the caveats that federal courts vary in their treatment of webpage authentication (as discussed in this law.com article), and the rules of evidence from Maryland and Massachusetts (rather than the federal rules) were at play here, there are two potential problems with the approach taken in Griffin.

First, even though the court extensively surveys secondary sources, and acknowledges that when it comes to social networking profile evidence, the concern arises that "someone other than the alleged author may have accessed the account and posted the message in question," the court nevertheless concludes that "individualization [of a profile] may lend itself to authentication of a particular profile page as having been created by the person depicted in it." This ignores the reality that public profile pages - which as the court notes are intended for the world to see - can be readily copied (or scraped, or aggregated) by anyone, personalized details and all. A random third party could have copied Ms. Barber's profile verbatim, and could have added on whatever details he or she wanted.

Second, the prosecution didn't question Ms. Barber on the profile page. It relied on the testimony of a police officer who accessed the webpage over the internet (??). There's a simple way to authenticate profile evidence - (1) present the testimony of the profile owner or (2) present the testimony of the company whose service is used to create the profile. Here, neither was done, and the court takes at face value the fact that the webpage accessed by the police investigator was actually Ms. Barber's profile page.

Williams takes a more restrictive approach and finds that the evidence was not sufficiently authenticated, even though the evidence in question was a "message," which the recipient testified that she received. As between the message evidence in Williams and the profile evidence in Griffin, the message evidence from Williams stands head and shoulders above, in terms of authentication. The court in Williams still said no.

I'm surprised there was no discussion of any other evidentiary issues (e.g., hearsay, relevance) by either the parties or by the court.

One thing is for sure, judging from the quantity of cases that involve MySpace evidence in criminal cases, MySpace is fertile ground for prosecutors. As the court notes (quoting from an article), "[i]t should now be a matter of professional competence for attorneys to take the time to investigate social networking sites." The same goes for courts too!

Added: Evan Brown has a post about a recent California criminal case which highlights the pitfalls of relying on a weak authentication standard when admitting this type of evidence. The case was brought against a man who "set up a bogus MySpace profile of his former church pastor . . . suggest[ing] the pastor used drugs and was gay."

[h/t Adam Greivell]

Related post: "MySpace Profile Evidence Inadmissible to Show Defendant Committed 'Gangster Style' Robbery"

Posted by Venkat at 03:52 PM | Evidence/Discovery

May 14, 2010

MySpace Profile Evidence Inadmissible to Show Defendant Committed 'Gangster Style' Robbery -- U.S. v. Phaknikone

[Post by Venkat]

U.S. v. Phaknikone, Case No. 09-10084 (11th Cir.) (May 10, 2010)

Defendant Phaknikone was convicted of seven counts of armed robbery, carrying a firearm in relation to a crime of violence, and having possession of a firearm as a felon.

The government argued that the robberies shared a signature trait - they were committed by a common culprit whose signature trait was to "rob the banks like a gangster" (??):

the robberies lasted less than three minutes and involved one or two masked robbers who carried guns and shouted profanities at bank tellers. One of the robbers vaulted the teller counter, demanded that the tellers empty their cash drawers, and sometimes instructed them not to give him any "ink think" or "funny money." In each robbery, at least one robber wore a black ski mask, a hooded sweatshirt, white-topped gloves, black athletic shoes, and held his handgun 'gangster style' in his left hand.

The government sought to admit defendant's profile page, subscriber report, and two photographs, all from his MySpace account. Defendant's profile name was listed as "Trigga," and his profile page contained photographs and $100 bills that floated down the screen. "The song 'Smile' by . . . Tupac plays in the background." He had also uploaded photos through his account, including one where his left arm was hanging out of a car window and he was holding a handgun in his right hand.

There was some back and forth with the district court and the government's argument was that the profile page and other information was admissible to establish that "this is who the defendant really is":

So I guess you can call it character, but you can also call it bank robber . . .

The district court expressed some hesitation at which point the government offered a redacted version of the profile report, and some of the profile photographs. The district court admitted the redacted version, and some of the photographs.

On appeal the Eleventh Circuit holds that admission of the MySpace profile and subscriber information was an abuse of discretion. The government pressed its argument that the MySpace evidence served to prove modus operandi - i.e., that "someone who shows off a gun in his car would commit the seven bank robberies":

The MySpace evidence therefore was properly admitted for the jury to consider in determining the identity of the defendant as a masked, semiautomatic hand gun wielding, gangster-imitating, profane-language-speaking bank robber described by the victims and eyewitnesses of the robberies. [emphasis mine]

Not surprisingly, the court squarely rejects this argument.

Related:

Evan Brown (Oct. 15, 2009): "MySpace posting was not improper character evidence at murder trial"
Prof. Goldman (Apr. 18, 2010): "MySpace Postings Foil Another Litigant--Sedie v. U.S."

Posted by Venkat at 11:26 AM | Evidence/Discovery

April 14, 2010

Yahoo! Chat Logs Admitted Over Defendant's Objections Based on Eavesdropping Statute -- People v. Nakai

[Post by Venkat]

State v. Singh Nakai, 2010 Cal. App. LEXIS 446 (Cal. App.) (Div. 2) (April 2, 2010)

Division two of the California Court of Appeals recently rejected a defendant's argument that California's eavesdropping statute precluded the admission of Yahoo! chat logs. (Warning: the case contains strong language.)

The case arose out of chats between defendant Singh Nakai and "Coleen," who was actually 35 years old but posing (and posting) as a 12 or 13 year old in internet chat rooms.* Defendant was convicted of "attempting to send harmful matter to a minor with the intent to seduce the minor," and acquitted of trying to commit a lewd act with a minor. Defendant argued (among other things) that the Yahoo! chat logs were improperly admitted over his objection.

Section 632 of the California Criminal Code prohibits the recordation of a "confidential communication . . . without the consent of all parties" to that communication, and provides that any information obtained in violation of section 632 is not admissible in any proceeding. Section 632 defines a "confidential communication" as "any communication carried on in circumstances as may be reasonably indicate that any party to the communication desires it to be confined to the parties thereto . . . . but excludes a communication made in . . . . any other circumstance where the parties to the communication may reasonably expect that the communication may be overheard or recorded." [emphasis added]

The prosecutor argued that "it was not objectively reasonable to believe that the Yahoo! chat dialogues were not being recorded, due to the dialogues being sent and received in a recorded format, i.e., writing." The prosecutor also argued that Yahoo!'s chat privacy policy undermined any reasonable expectation of confidentiality because the policy provided that Yahoo! would share information as necessary to "prevent . . . illegal activities."

The policy stated that Yahoo! could disclose information:

if [Yahoo!] believe[s] it is necessary to share information in order to investigate, prevent, or take action regarding illegal activities, suspected fraud situations involving potential threats to the physical safety of any person, violations of Yahoo!'s terms of use or otherwise required by law.

The policy also stated that participants in Yahoo! chat communications should not necessarily expected the chats to remain confidential.

The appeals court held that the chats could not reasonably be seen as "confidential": (1) the privacy policy indicated that chat logs may be shared; (2) the policy warned users that chat logs can be archived and printed by the receiving party; (3) the defendant was communicating with someone he didn't know (and could not reasonably trust); and (4) the defendant himself expressed concern as to whether the receiving party's parent would discover the communications (which reflected awareness that the communications could be viewed or printed).
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Rather than delving into the Yahoo! chat privacy policy and how this affected the expectation of confidentiality, I'm surprised the court didn't just say that chats don't fall under the statute because chat logs are "recorded" as a matter of course by the sender and recipient, and leave it at that. No one ever asks consent to record and retain chat logs. For some reason, people always seem to equate them with telephone calls as far as whether chats leave behind a recording and whether permission is required. With respect to how this ruling may apply to other scenarios, surreptitiously obtained chat communications are often used in civil cases, such as divorce proceedings. While other laws may come into play, it looks like the California eavesdropping statute will not.

Either way, the case is a good reminder that chat logs (like texts and emails) may be admissible.

[* As I read the case I wondered about the propriety of these types of stings, and whether the legality of internet stings, including those conducted by private citizens or "investigators" was well settled. Given that the defendant didn't even raise the issue in this case, it didn't appear to be a viable argument (in California at least). As a civil practitioner, this issue is pretty far outside my realm of experience. But Cyb3rcrim3 has a post that talks about how attacks on private internet stings have played out.]

Posted by Venkat at 07:00 AM | Evidence/Discovery , Privacy/Security