2H 2016 Quick Links, Part 11 (Social Media, Harassment, E-Discovery & More)

Social Media

* US v. Elonis, 2016 WL 6310803 (3d Cir. Oct. 28, 2016). Anthony Elonis’ conviction for criminal threats was once again upheld:

Considering the graphic nature of the three messages Elonis posted in October, it is not at all credible that Elonis did not know his ex-wife would interpret them as threats. But it is less credible still that, having attended the court proceeding at which she sought a restraining order against him, Elonis remained unaware of his ex-wife’s fears as he posted more violent messages on November 7 and 15. The evidence overwhelmingly shows that Elonis posted those two messages with either the purpose of threatening his ex-wife, or with knowledge that she would interpret the posts as threats….Elonis contends the fact that his statements were in lyric form suggests he did not know they would be regarded as threats. The evidence suggests otherwise.

Prior blog post.

* Inside Higher Ed: Students lose interest in Yik Yak, a relief for administrators

* State v. Hannah, 2016 WL 7368984 (N.J. Superior Ct. App. Div. Dec. 20, 2016): “We need not create a new test for social media postings. Defendant argues a tweet can be easily forged, but so can a letter or any other kind of writing. The simple fact that a tweet is created on the Internet does not set it apart from other writings. Accordingly, we apply our traditional rules of authentication under N.J.R.E. 901.”

* Compton v. State, No. 82A01–1511–CR–1997 (Ind. Ct. App. Aug. 24, 2016):

it is unnecessary to decide whether Twitter is “broadcasting,” because even assuming it is, broadcasting is not inherently prejudicial and Compton has shown no specific prejudice to him in this case. Similar to Willard, the evidence against Compton, including his inculpatory statements, is overwhelming; prior to trial, the trial court instructed the jury not to receive information about the case from any source, including internet sources; the jury was sequestered during the Twitter discussion; the trial court instructed the media not to Tweet in a manner that would disrupt proceedings; the trial court instructed the attorneys to notify their respective witnesses not to use Twitter until after they testified; and there is no evidence any witnesses or jurors viewed any Tweets pertaining to the trial. We conclude Compton was not deprived of due process when the media was allowed to Tweet live updates of his criminal trial from the courtroom.

In a footnote:

Despite our ultimate conclusion, we take this opportunity to express our concern as to the impact social media applications have on due process and trials. Social media applications, such as Twitter, allow users to disseminate information immediately from their portable devices, similar to live television and radio broadcasts. The use of Twitter has already created multiple issues surrounding whether such use may compromise a defendant’s due process rights….Despite these concerns, we decline to opine whether the use of Twitter should be permitted in the courtroom.

We note, however, the pretrial instructions in this case did not instruct the jury not to refrain from seeking information through social media applications. Rather, the instructions merely instructed the jurors not to receive information from the internet. Given how easily one may access the internet in this technological age, we fear such an instruction may not be specific enough to deter jurors from using Twitter now and in the future. In addition, we note when the ethics rules regarding “broadcasting” were written, social media was a vastly different medium than today. We believe judges and attorneys are in need of guidance on how they approach the use of social media during criminal trials. Therefore, given the rapidly evolving relationship between Twitter and our judicial system, we believe it is time for all appropriate judicial, attorney, and ethics committees to come together to specifically address these concerns.

* Schmalfeldt v. Johnson, 2016 WL 3659901 (E.D. Wi. July 1, 2016): “exercising personal jurisdiction over Palmer would be incongruous with due process. It is not enough that Palmer knew, or should have known, that her blog would cause injury in Wisconsin, and Schmalfeldt has alleged no other connection to or contact with Wisconsin.”

* Fusion: What happens when your tweet goes viral

* I was asked to contribute to the New York Times’ Room for Debate. This article prompted it: Millennials are getting prenups that protect their intellectual property. The call to action: “What’s behind this trend? Is it a good idea, or even enforceable? Should couples sign prenups for intellectual property and ideas?” My response got cut but here it is:

It makes sense for young couples to discuss allocation of their online content and other intangible assets early in their relationship. Millennials are spending a substantial fraction of their lives online. Along the way, they are creating or acquiring many digital assets that are important to them and may have substantial economic value—such as social media accounts with potentially thousands of followers, YouTube and Instagram accounts with lots of photos and videos, and even virtual items in online games that may have cost thousands of dollars or many hours of time.

In the old days, sometimes the fiercest fights in a divorce erupted over sentimental items like family photo albums. Now, divorcing couples are just as likely to fight over who gets the Instagram account or a Chromatic Sword in World of Warcraft. Because these online assets are often quite personal to their owners, and because ownership of the assets might implicate the person’s connections to their online communities and social networks, battles over the disposition of these assets have the potential to be especially emotional. It’s far better to anticipate and resolve those matters when everyone’s head is clear.

While discussing their online assets, couples might also consider the post-mortem disposition of their online presences, such as what will happen to email accounts and social media accounts after they die. There may be economic value to those accounts, but post-mortem access to those accounts also may raise subtle privacy issues. Account ownership can be addressed in the parties’ wills, but many online services now also provide online tools that specify what should happen to the account after death. Figuring out the proper settings can be tricky. On the one hand, online accounts may contain important financial information or sentimental memories that a surviving spouse will want or need. On the other hand, it’s possible that even loving and faithful spouses keep some secrets from each other, and those secrets may be unwittingly revealed if the surviving spouse accesses the account.


* NPR: Social Network Nextdoor Moves To Block Racial Profiling Online. Nextdoor’s post. Coverage from Fusion and Wired.

* Buzzfeed: “A Honeypot For Assholes”: Inside Twitter’s 10-Year Failure To Stop Harassment

* Hannah v. Cowlishaw, 2016 WL 4995310 (E.D. OK Sept. 19, 2016): “Plaintiff has cited to no authority showing he has a clearly established constitutional right that would prevent a colleague who more than two years prior made a possibly racist comment on Facebook from voting on his tenure application.”

* Fisher v. Mermaid Manor Home for Adults, LLC, 2016 WL 3636021 (E.D.N.Y. June 29, 2016). An Instagram post comparing a co-worker to Cornelius from Planet of the Apes can create a hostile work environment.

* Keefe v. Adams, 2016 WL 6246869 (8th Cir. Oct. 26, 2016). A nursing student is terminated from a public school’s nursing program due to inappropriate Facebook posts, adding to the long list of social media problems in the nursing community.


* Feist v. Paxfire, 2016 WL 4540830 (SDNY Aug. 29, 2016):

The Court is troubled by Feist’s assertion that she did not know her browsing history could be relevant to this litigation. Her allegations under the Wiretap Act involve the interception of her internet searches. She is not a novice at computer functioning, and reasonably should have known that evidence of her internet history, including her cookies, would be relevant to this action. Feist admitted running the cleaner program after commencing this action, knowing that it would delete her browsing history. It is reasonable that prior to filing this action, Feist had used cleaner software to clean up her computer. The use of virus scanners and hard drive cleaning programs is a common occurrence for computer users. It is not reasonable that Feist continued to use the software once this lawsuit began, and did not know that it could prejudice her adversary….

* Carlson v. Jerousek, 2016 IL App (2d) 151248 (Ill. Ct. App. Dec. 15, 2016)

Forensic imaging of all of the contents of Carlson’s computers will yield an enormous amount of data that goes far beyond the issues that are relevant to this suit, potentially including personal photographs, declarations of love, bank records and other financial information, records of online purchases, confidential information about family and friends contained in communications with them, and private online activities utterly unconnected to this suit. A request to search the forensic image of a computer is like asking to search the entire contents of a house merely because some items in the house might be relevant. Because such a search is not narrowly restricted to yield only relevant information, it poses a high risk of being overbroad and intrusive in a manner that violates the constitutional right to privacy.

* Law.com: Nothing Unusual in FBI’s Eight-Day Clinton Email Review: E-discovery Experts

Law Enforcement

* NY Daily News: Brooklyn prosecutor who allegedly forged wiretap orders had remote access to phone calls, source says

* California Governor Brown Signs Bill Protecting Californians from Civil Asset Forfeiture Abuse

* Reader: Inside the Chicago Police Department’s secret budget


* Sarah Jeong: From Tape Drives to Memory Orbs, the Data Formats of Star Wars Suck (Spoilers)

* Reuters: Get off my lawn! Pokemon Go tests global property laws

* Washington Post: Government lawyers don’t understand the Internet. That’s a problem.

* Cracked: a behind-the-scenes look at a Ukrainian essay-writing company

* Vox: Male film actors get jobs like “doctor” and “cop.” Women get “receptionist” and “party girl.”

* Cracked: The 6 Nerdiest Wikipedia Wars In Internet History

* Oddee: 10 Iconic Protest Photos

* Esquire: The Falling Man (about the 9/11 “jumpers”)

* The Atlantic: The Lost Civilization of Dial-Up Bulletin Board Systems

* Hollywood Reporter: Behind Hollywood’s Closed Doors, A-List Stars Are Playing Dungeons & Dragons. So are law professors!