Social Media Roundtable: Privacy Issues And Courtroom Implications

Monday, April 23, 2012 - 14:38

The Editor interviews Kelli Clark, Esq., Vice President, Solutions & Services, Applied Discovery; Christopher J. Morvillo, Litigation Partner, Clifford Chance LLP; and Mara E. Zazzali-Hogan, Director, Business & Commercial Litigation, Gibbons P.C.

Editor: In what ways has social media altered the definition of privacy (and the reasonable expectation thereof), and how do you imagine it evolving going forward?

Clark: The prevalence of social media has blurred the line between what information is public and private as well as the line between what is business and personal. Further complicating that already blurry distinction is that employers are now asking for access to applicants’ accounts to review their suitability for positions, in addition to conducting traditional background checks. For example, the Maryland State Department of Corrections recently asked applicants to log in to their social media accounts during interviews so that the interviewer could inspect their Facebook timelines.

This trend is likely waning. Facebook recently asserted that “if you are a Facebook user, you should never have to share your password, let anyone access your account or do anything that might jeopardize the security of your account or violate the privacy of your friends.” In addition, Maryland has become the first state to develop legislation designed to protect employees and applicants from having to disclose their usernames and passwords for electronic accounts, including social media. Furthermore, U.S. Senators Chuck Schumer (NY) and Richard Blumenthal (CT) have asked the U.S. Equal Employment Opportunity Commission and Department of Justice to investigate this trend and determine whether this practice violates the Stored Communication Act or the Computer Fraud and Abuse Act. But until this legislation is enacted, companies are likely to continue to search for ways to get at prospective and current employees’ social media accounts – they contain too rich a repository of information on prospective hires for them to ignore.

Morvillo: Social media has not actually altered the definition of privacy; it will always mean "the state of being free from public attention." As the term implies, however, "social media" has clearly altered the concept of what information people expect to remain private. In this regard, it is hardly controversial to say that one who voluntarily discloses information to the world cannot expect that information to remain private. But what about a disclosure intended only for that person's "friends" – such as a person's whereabouts or travels or photographs? Without question, the expectation of privacy is diminished in such a setting.  But, is it eliminated entirely? 

Such questions were recently featured – but not necessarily answered – in United States v. Jones, where the Supreme Court held that a warrant is required before the government can install and monitor a GPS device on a vehicle. 132 S.Ct. 945 (2012). Applying a traditional trespass analysis to the question, the Court neatly avoided addressing whether such conduct implicates a person's reasonable expectation of privacy in their public movements. Nevertheless, in a concurring opinion joined by three other justices, Justice Alito discussed new technology and its impact on privacy, noting "[t]he availability and use of these and other new devices will continue to shape the average person’s expectations about the privacy of his or her daily movements." Id. at 963. Foreshadowing his concerns, Justice Alito stated during oral argument:  "You know, I don't know what society expects, and I think it's changing. Technology is changing people's expectations of privacy. Suppose we look forward 10 years, and maybe 10 years from now, 90 percent of the population will be using social networking sites, and they will have on average 500 friends, and they will have allowed their friends to monitor their location 24 hours a day, 365 days a year, through the use of their cell phones. Then – what would the expectation of privacy be then?" The answer to Justice Alito's question awaits another case. Still, as social media becomes ever more engrained in the fabric of our society, it is clear that courts will increasingly face difficult challenges, drawing the line between what constitutes private information and what is fair game for public attention.

Editor: How can social media be used most effectively as evidence, and to what degree has it proved to be useful/reliable in the courtroom or at the settlement table?

Zazzali-Hogan: People who use social media like Facebook and Twitter are like the Wizard of Oz himself. Something about social media lulls people into a false sense of security such that they think they can hide behind a curtain of anonymity. They think that despite the nomenclature of “social network,” if they intended to share information with a limited group of people, it is not public. Similarly, they believe that, like the Wizard, they can say certain things and in a different way than they might if they were face-to-face with a person. The reality, however, is that at any moment someone like Dorothy may lift the curtain, revealing the truth about who they are, with consequences they never intended. 

In light of the foregoing, lawyers must counsel their clients that information on social media sites is indeed discoverable under certain conditions (provided it was ethically obtained) and likewise, can have a significant impact on trial (provided it was authenticated) and/or settlement. The converse is also true. The failure to preserve such information can similarly have serious consequences for both attorneys and their clients that may go beyond the purse strings and the underlying case; it can result in disciplinary proceedings for lawyers and perjury charges for non-lawyers if they spoliate social media evidence. 

Practitioners, however, must remember that social media’s potential role does not end once a trial or similar proceeding commences. There have been repeated instances in the last year or two where jurors have disobeyed instructions not to communicate about the case and/or research the case – via traditional methods as well as electronic media and devices.  They have “friended” witnesses or parties and tweeted about the case, resulting in charges of contempt and/or mistrials. Consequently, lawyers and judges must be aware of how social media could ultimately taint a proceeding and how to employ best practices that my decrease the chance of a such a result. In other words, there is no Wizard of Facebook.

Clark: In both civil and criminal litigation, information that parties obtain from social networks has proven useful in support of both offensive and defensive litigation strategy. Since 2010, more than 700 cases have used social media evidence in support of claims ranging from murder to discrimination and divorce.

Social media profiles can offer evidence of a person’s actions, state of mind, location and communication. In addition, social media evidence is often used for impeachment purposes. Parties’ lawyers should conduct a sweep of social media accounts to confirm that what is available online matches the testimony in depositions or in court. Some lawyers use social media to stay abreast of issues that arise during the trial and to learn about the members of a jury. Legal consultants and lawyers can also use social media to measure public sentiment and build key themes for use in a case. Finally, lawyers can wield claims of spoliation of social media evidence to convince a court to issue an adverse inference or other sanctions against a party.

In short, social media evidence is as critical and effective in the courtroom as any other form of evidence – whether traditional or electronic.