2H 2015 Quick Links, Part 6 (Social Media)

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* Burge ex rel. Burge v. Colton School Dist. 53, 2015 WL 1757161 (D. Or. April 17, 2015). 8th grader gets a C in a class and gets grounded. He vents about the teacher on Facebook:

Braeden initially posted that he wanted to “start a petition to get mrs. Bouck fired, she’s the worst teacher ever.” After a friend asked “what did [Ms. Bouck] do?” Braedon responded “She’s just a bitch haha.” When his friend wrote back “XD HAHAHAHA!!,” Braeden responded “Ya haha she needs to be shot.”

Mom monitors the page and makes him delete the comments in 24 hours. Still, one of his Facebook friends delivers a copy of the exchange to the administration, who suspends him for 3.5 days even though everything took place off-campus. The court concludes that the suspension violated his First Amendment rights.

* Liverman v. City of Petersburg, 2015 WL 2127028 (E.D. Va. May 6, 2015). A police department adopts a social media policy that includes the following passage:

Negative comments on the internal operations of the Bureau, or specific conduct of supervisors or peers that impacts the public[‘]s perception of the department is not protected by the First Amendment free speech clause, in accordance with established case law.

Two officers complained on Facebook about the promotion of junior officers to supervisors or instructors. For this, they received an oral reprimand and were denied the opportunity to apply for a promotion. The court says one officer’s comments were on public matters, and the other on private matters. What was the difference? The public matter comments included citations to credible sources. The private matter comments included

Phrases such as “It’s disgusting and makes me sick to my stomach DAILY” and “the next 4yrs can’t get here fast enough … From what I’ve been seeing I don’t think I can last though”

Thus, the court concludes that disciplining for the public matter comments violated the First Amendment, but disciplining for the private matter comments was OK under the First Amendment.

* Allen v. Bander, 2015 WL 7180732 (Cal. App. Ct. Nov. 16, 2015):

Allen also claims that republication occurred when comments were made on the article’s page by members of the public, and through links to social media, including Facebook, Twitter, and Pinterest. Allen cites to no authority supporting his argument that allowing comments on a webpage or including links to social media constitutes republication. This argument is therefore forfeited and we need not address it. We also note that, even assuming that type of activity could be considered republication, Allen failed to meet his burden to provide any evidence of such republication after May 2013. None of the copies of the articles provided show that they were accessed or commented on through Facebook, Twitter, or any other means after May 2013, other than Allen’s own access for the purposes of this case. Indeed, the only comments visible on one of the articles are dated in 2012, and the record contains no evidence as to when any “likes” on Facebook or other links to other sites were utilized.

* Brennerman v. Guardian News & Media Limited, 2015 WL 9484466 (D. Del. Dec. 29, 2015): “no legal claim arises from mere access through a link to an allegedly defamatory article published elsewhere.” Accord Life Designs Ranch v. Sommers.

* Forbes: “today’s teenagers are forming deep, personal connections and relationships online”

* NY Post: Our double lives: Dark realities behind ‘perfect’ online profiles. The Internet is supposed to make it harder for us to maintain dual personae, but there’s some evidence the “race to be perfect” is exacerbating the duality. The right to be forgotten is part of this: some people are so desperate to maintain the fiction of their perfection that they’d rather cover up the ugly truth.

* NY Times: House Panel Faults Failure to Review Visa Applicants’ Social Media Use

* Jane R. Bambauer, All Life Is an Experiment. (Sometimes It Is a Controlled Experiment.), 47 Loyola University Chicago Law Journal 487 (2015)

Last year, Facebook found a new way to irritate its users. It facilitated the now-famous “Emotion Contagion” study. To do so, Facebook altered the News Feed algorithm for a large, randomly selected sample of Facebook users. When news broke about Facebook’s surreptitious study, scholars came out in droves to denounce the practices and to recommend extending the legal requirements for Institutional Review Boards (“IRBs”) to private corporations. This Essay comes to a starkly different conclusion. Although the strong reactions to Facebook’s research are perfectly natural, they are not particularly thoughtful. In fact, they steer us toward policies that are downright anti-intellectual.

This Essay begins with a short description of the Facebook study and the hostile reaction it received from the public and from legal scholars. Parts II and III critique the criticism, finding that the moral indignation is misplaced, and that the anticipated problems are best addressed through direct regulations of risky conduct and special relationships. Part IV shows that the law regulating research is already overbroad. It obstructs research that poses little risk to its subjects or society. Part V briefly sketches a proposal to reform research policy so that it can simultaneously support the production of knowledge while protecting research subjects from harm.

* Appler v. Mead Johnson & Co., LLC, 2015 WL 5615038 (S.D. Ind. September 24, 2015) (cites omitted):

here, the Plaintiff’s narcolepsy and inability to be at work by a certain early morning time are also at issue. A full production of Plaintiff’s Facebook Profile would reveal the times she is active online, so obviously awake. Though it may not be dispositive evidence of Plaintiff’s ability to be at work by the earlier times (as she claims she was unable to do because of her narcolepsy), this information could be used as evidence to the point. In this case, a much broader production of Plaintiff’s SNS content can be said to be “relevant to any party’s claim or defense.” Despite Plaintiff’s privacy interest, I find that a production of Plaintiff’s Facebook activity is generally reasonable in this case.

However, there are certain categories of the full Facebook Profile that I find are not sufficiently relevant to overcome Plaintiff’s privacy interests. Their production is therefore not merited. A full list of the categories produced by this download can be found on Facebook’s Help Center Website. Of these categories, I find Plaintiff does not need to include the following in the download produced: Credit Cards, Facial Recognition Data, IP Addresses, Phone Numbers, Family, and Religious Views. The last two of these categories may, in some cases, be publically viewable, but I find there is a protected privacy interest in this type of information and it has no relevancy here. Therefore, it does not need to be produced.

This is by no means a comprehensive list of the categories with high privacy concerns, or that should be excluded in every case. This analysis is highly specific to the evidence that will be relevant to the facts at issue in this case. The issue at hand of producing SNS content does not seem to be one ready for a bright-line rule, and it may never be. In any case, this is certainly not the proper case to establish such a rule. A weighing of the relevancy and necessity of information requested, the burden of production, the privacy interests at stake, and other concerns mentioned in Federal Rule of Civil Procedure 26(b)(1) does seem, at a minimum, necessary to make a proper ruling on this type of discovery issue.

* Hawes v. Holland, 2015 WL 4112405 (E.D. Cal. July 8, 2015):

Petitioner contends trial counsel was ineffective for failing to obtain information from M.’s electronic and social media activity. He asserts that, at the time of his arrest, M. described her life as “perfect” on her Facebook profile and that emails and messages between M. and her friends would support petitioner’s theory that M.’s story was “ever changing.”…

It is not surprising that a teenage girl would describe her life as “perfect” on social media but in reality experience horrific circumstances at home. Here, M had resisted telling anyone about the molest for a lengthy period of time. It is therefore not surprising, or worthy of an evidentiary hearing, to view records where M had not presented herself as an unwilling participant in years of abuse. A recordation of abuse would have meant that M had determined to turn her stepfather over to authorities—a decision that would inevitably involve M in reliving all of the abuse, and having such abuse become the focal point of her life for months in a criminal process. This is a decision that is seldom made at the start of an abusive relationship.

Moreover, it is beyond cavil that most youths like to portray themselves as attractive to other persons. A recoded chronology of being abused would have made M very unattractive to many persons, making most persons shy away—either not wanting to be vicariously involved in what was undeniably a criminal situation, or not having a relationship with someone who would be most certainly psychologically scarred. Reflecting that her life was “perfect” on social media is no different than her saying “good,” when asked by anyone “how are you doing?”

In addition, petitioner’s reasoning for seeking M.’s text messages—that she texted her friends a lot—does not describe a unique characteristic of M. Indeed M., like any teenage girl with a cell phone, sent text messages to her friends. There is no indication that a review of those text messages would have lead to relevant, exculpatory evidence….

* State v. Gathercole, 2015 WL 5278964 (Iowa Ct. App. Sept. 10, 2015): “would prejudicial information published in a single post on an infrequently read blog or in a single tweet from a largely unfollowed Twitter account, although both technically published and accessible to the jury, trigger the court’s duty to poll the jury? We think not. Thus, the court’s duty to inquire further is only invoked where there is sufficient evidence to establish the communication or communications at issue were disseminated with sufficient frequency and breadth to afford a reasonable inference that a member of the jury more likely than not would have been exposed to the communication or communications at issue.”

* Goldsmith v. State, 2016 WL 64385 (Fla. Dist. Ct. App. Jan. 6, 2016): “The fact that a defendant’s Facebook page may be publicly available does not excuse the prosecutor’s duty to disclose to the defense any statements made by the defendant on Facebook where such material is within the State’s possession or control.”

* Florida’s perspective on what lawyers can and can’t advise clients about cleaning up their social media accounts. Related blog post.

* Brown v. Twentieth Century Fox Home Entertainment, 2015 WL 5081125 (E.D. Ky. August 27, 2015): “general internet communications or use of social media sites–including Facebook, Twitter, and YouTube–does not create a sufficient basis for personal jurisdiction”

* Gawker: Snapchat Lost a Ton of Money Last Year

* Real Life First Person Shooter (Chatroulette version)

* White v. Ortiz, 2015 WL 5331279 (D. N.H. Sept. 14, 2015):

Ortiz employed the Twitter handle “The Real June White” in an effort to leverage White’s name and reputation, thus giving the false “confessions” Ortiz published presumptive credibility. Absent the use of White’s name in association with those statements, Ortiz would likely have been seen as simply another crank publishing incendiary, derogatory, and demeaning comments on Twitter. But, by appropriating White’s name (and the credibility and notoriety associated with that name), Ortiz added weight and validity to her posts. That act of appropriation lent value to those “confessions,” and furthered Ortiz’s apparent goal of perpetrating a fraud on the public, undermining sales of White’s book, and ruining White’s reputation. It is, therefore, actionable conduct under New Hampshire’s common law, and Ortiz’s motion to dismiss White’s invasion of privacy claim is denied.