Wednesday, December 30, 2009

Florida Ethics Committee Says Judges Shouldn't be Facebook Friends with Lawyers

Last month, a Judicial Ethics Advisory Committee in Florida issued an opinion stating that a judge may not be Facebook friends with (or list as contacts on other social networking sites) lawyers who may appear before the judge.

Really? Going so far as to say no friending lawyers who may appear before the judge?! I understand judges should avoid even the appearance of impropriety . . . but might this opinion go a little too far?

Tuesday, December 29, 2009

More on Employer Social Media Policies

The Delaware Employment Law Blog offers employers some good insight, outlining three initial steps on the road to creating an effective social media policy. In her December 4, 2009 post, Molly points out that it's important for employers to (1) familiarize the decision makers, (2) select key players, and (3) determine objectives.  (Check out her post for the broader discussion of these steps.)

I discussed related issues in October -- so if you're looking for more employer pre-drafting considerations (before drafting or updating social networking / social media / Web 2.0 policies), check out my October 27, 2009 post and my October 28, 2009 post.

Sunday, December 27, 2009

Hijacked Online Accounts Pose Threat of ID Theft

A recent article discusses privacy issues and identity theft risks associated with social networking sites and social media -- including pending legislation aimed at strengthening data security and privacy measures to protect users' personal and financial information.  Check out the full story here:

Hijacked Facebook accounts pose threat of ID theft - Pittsburgh Tribune-Review

Thursday, December 17, 2009

New Facebook Privacy Policy May Catch Some Users by Surprise

Facebook updated its privacy policy last week, and the social networking site has come under fire for what many consider to be the site’s gradual deterioration of privacy protection.

Particularly troubling:  the popular social networking site touted the changes as giving users more control over their information. To the contrary, the changes actually seem to reduce the amount of control users have over the privacy of their information.

Certain privacy settings seem to have been lost altogether. Perhaps the most glaring example is that some information users used to be able to keep private is now considered “publicly available.” Under the old settings, a user could edit her “basic information” privacy settings to prevent disclosure of everything but her name and networks to which she belonged. This option no longer exists, and Facebook now says “your name, profile photo, list of friends and pages you are a fan of, gender, geographic region, and networks you belong to are considered publicly available to everyone.” In other words, you can’t “opt out” of sharing this information and no privacy settings let you prevent its disclosure. Anyone who looks at your profile will be able to see this info (and so can any application you or your friends use).

Users should also be aware, Facebook's "recommended settings" probably lead many users to share more information than they mean to.

It seems even Facebook CEO Mark Zuckerberg couldn’t figure out the new privacy settings, as many news sources are reporting that he’s tinkered with his settings more than once following implementation of the new policy. He even (seemingly inadvertently) let his whole profile -- pictures and all -- "go public" for a short time.  Whoops! 

Bottom line, Facebook seems to be pushing users to share more information than they want to or mean to. After all, indexing more information helps Facebook in the real-time search battle against sites like Twitter. The problem for Facebook:  as opposed to other sites with the more "show all, to all" default settings, most of Facebook's users joined its social network because of its more protective privacy options and default settings. 

The ACLU offers a detailed analysis of various aspects of the new policy, and interested Facebook users may want to check out that resource to ensure they're not sharing more than intended.  And this blog offers a helpful guide on how to restore some privacy to Facebook profiles.

Tuesday, December 8, 2009

Transfer of NY Judge May Have Been Due to His Facebook Activity

Thanks to Bill H. in New York for giving me a heads up on this story about a Staten Island criminal court judge who is being transferred to a court in Manhattan.  According to online speculation, it seems the judge's transfer may have something to do with his time on Facebook, both on and off the bench. 

No official comment from the Office of Court Administration spokesperson or from the judge on the reason for his transfer, but a number of news sources report that inside sources claim Judge Matthew A. Sciarrino Jr.'s use of the social networking site Facebook contributed to his transfer.  According to Staten Island Real-Time News (on, the judge had a public Facebook profile for a time (it's now set to "private"), which sometimes included details about his personal life, as well as his work location and schedule.  He reportedly updated his Facebook status constantly -- even from the bench on at least one occasion; he also posted a photo of his crowded courtroom on his profile page. 

As I discussed in an October post about a judge who was disciplined for "friending" a lawyer, judges and attorneys may need to be particularly cautious about their online activities.  (Lawyers would also be wise to stay on top of their clients' use of social media sites.)

Wednesday, December 2, 2009

Plaintiffs "Friend" A Juror On Facebook, Problems Ensue

Imagine our collective voices singing War's hit song:  "Why can't we be friends?  Why can't we be friends? . . ."

A recent case out of a federal court in Maine reminds us that sometimes being friends just might get us into trouble.  Say, for example, when parties to a lawsuit friend their jurors on Facebook.  (And as I've discussed before, it can also be problematic for a judge to Facebook friend a lawyer).

As you probably know, parties to litigation have a right to an unbiased jury. So, imagine what went through the mind of plaintiffs’ counsel when four days after the jury returned a defense verdict, that lawyer received this email from a juror:

[D]id you know your plaintiff[s] advocated the use of mushrooms and weed smoking, and binge drinking all over the internet? . . . It[’s] really sad what happened but with all the work going into this don[’t] you think you should have address[ed] this issue and known such things so they could clean up their acts before court? I’m just trying to help.[] [I]f you want more info and insight [I] will help you.

The attorney quickly brought this to the court’s attention, and in preparing for a conference with the parties’ counsel, the judge also found an anonymous post-verdict response to a questionnaire from a juror saying one of the plaintiffs “was a party drug [illegible] animal.” The handwriting apparently looked similar to that on the pre-jury selection survey form completed by the juror who sent the email.

Not surprisingly, the plaintiff wanted a new trial. Based on the information at this point, it seemed reasonable to assume the juror may have considered online information during trial that may have prejudiced a hypothetical average juror. Thus, the court investigated the potential juror misconduct.

The court’s order says that during post-trial voir dire, “[t]he juror explained that he had found information about two of the plaintiffs on the social networking site, Facebook. The juror that said he gained access to those plaintiffs’ Facebook pages by sending ‘friend’ requests, which the plaintiffs apparently accepted. On the two plaintiffs’ Facebook pages, the juror said that he found pictures that provoked the allegations in his e-mail.”

But the juror claimed he did all of his online research after the verdict had been entered.

As for the similar handwriting, the juror didn’t say whether the handwriting was his, and he couldn’t remember writing the statement.

While the court did find some of the juror’s answers “troubling,” the judge ultimately found “no basis for finding him untruthful in answering the one key question—when he discovered the information.” That is, post-verdict. Accordingly, the court denied plaintiff’s request for new trial.

Beyond the obvious “parties shouldn’t friend a juror on Facebook” lesson here, this case reminds trial lawyers the importance of understanding social media. It seems the juror in this case had a better grasp of the significance of Web 2.0 for evidentiary purposes than the lawyers did.