Social Media

Discussing the Legal Job Market Online: Optimism, Observation, and Reform

March 12, 2013
Legal Education, Social Media

by Elliot Ferrell, UMN Law Student, MJLST Staff

The average law student incurs $125,000 of debt and pays almost twice as much in tuition as a student did in 2001. Law students are understandably concerned with the legal market’s job prospects, and many are vocal about. Students are not the only ones voicing their concerns, as a lawyers (employed and unemployed), professors, employers, and business people add their opinions and observations to the discourse as well. A common theme is to decry the rise of tuition costs and debt and the fall of enrollment and job openings.

The Minnesota Journal of Law, Science and Technology’s publication, You’re Doing It Wrong: How the Anti-Law School Scam Blogging Movement Can Shape the Legal Profession, describes this dialogue with a sense of optimism. According to the article, unemployed and underemployed lawyers contribute to the legal community through the voice of an outsider, facilitated by the openness and anonymity afforded by the internet. These contributions may contain valuable ideas and observations but are often plagued by gripes and vulgarities so common to internet communications emanating from forums or the blogosphere.

Additionally, the online news world is littered with articles espousing reasons for the gloomy outlook in the legal job market. However, many carry the same sense of optimism as previously indicated. One such article suggests that, after using a little math and some average attrition rates, the number of law school graduates per year and the number of job openings per year will equalize by 2016. This result is due to dwindling average enrollment and approximately equal number of graduates getting jobs each year. Despite the apparent logic of this approach, holding onto all of the variables involved staying the course likely requires an ardently optimistic law student.

Several commentators step back from the optimistic approach and suggest reforms intended to curb the cost of law school and increase a graduate’s job prospects. One proposal would remove the third year of law school to cut the tuition debt and hasten a student’s path into the workforce. However, such an idea is not without its pitfalls, such as a reduced readiness for the bar exam. Another idea is to increase practical education through clinical courses and partnerships analogous to medical residencies. Many schools already offer an array of different clinic experiences, but the notion of a legal residency would seem attractive to law students as it would offer an additional path to permanent employment.

What is the role of the student in this discussion? Perhaps, it is to let it run its course and hope for the job market to right itself. Perhaps, it is to chime in and advocate or simply make observations. Either way, there are certainly valuable contributions to be made, and, with access to the internet, there is little standing in your way.

21st Century Problem: Authentication of Prisoner Facebook Status Updates

March 6, 2013
Criminal Law, Internet, Social Media

by Eric Maloney, UMN Law Student, MJLST Staff

Facebook has become a part of everyday life for people around the world. According to Mark Zuckerberg and Co., over one billion people (yes, with a “B”) are active on Facebook every month, with an average of more than 600 million active users every day in December 2012. Disregarding bogus or duplicate accounts, that means roughly one-seventh of the entire human population is active on Facebook every month (with the world population currently sitting somewhere in the neighborhood of seven billion people).

Apparently, Facebook has become so commonplace and ingrained in the daily routine of some that they feel the need to use the social networking service from the privacy of their prison cells.

A Harlem gang member named Devin Parsons has decided to cooperate with the government against fellow members of his gang, and is currently incarcerated while trial is pending. Instead of having the usual prison contraband smuggled in, he obtained a mobile phone and used it to post Facebook status updates under an assumed name. According to Trial Judge William H. Pauley III:

In some posts, Parsons reflected on his life in jail:

“everybody wanna live but don’t wanna die”;
“Life is crazy thay only miss yu ifyu dead or in jail”; and
“G.o.n.e”

In others, Parsons posted about his cooperation:

“I’m not tellin on nobody from HARLEM but I can give up some bx n****s that got bodys”; and
“be home sooner then yaH hereing 101[.]”

While not exactly “Letter from Birmingham Jail,” Parsons was surprisingly bold about disclosing the fact of his cooperation and about the risk of getting caught with a banned cell phone by the prison administration. The gang against which Parsons is testifying is charged with multiple counts of narcotics trafficking and murder, among other things.

One of the defendants in the case, Melvin Colon, sought to compel the disclosure of these postings under the Brady rule, which requires the government to release evidence to the defense before trial if the evidence is favorable to the defendant. Judge Pauley held that the government was not obligated to turn these postings over to Colon; for various reasons, the government was never in actual possession of the Facebook statuses and therefore had no duty to disclose under Brady.

This case highlights the continually growing relevance that Facebook and other social media data has in legal proceedings. In fact, this is not even the first ruling about Facebook in this case; the defendant Colon had earlier moved to suppress his own Facebook postings which the prosecution sought to introduce. Judge Pauley denied this motion as well, holding that Colon’s sharing of the postings with his Facebook “friends” meant he lacked a reasonable expectation of privacy in them.

A background issue in this case was the idea of authenticity of the Facebook poster; because Parsons was posting under a fake name, both sides were unaware of his conduct until after the account had already been deactivated. While not contested here, ensuring that the Facebook information originated from the user is an increasingly important evidentiary consideration as more and more of this data is used in both civil and criminal contexts.

Professor Ira P. Robbins laid out a possible framework for authenticating social networking evidence in his Minnesota Journal of Law, Science & Technology article “Writings on the Wall: The Need for an Authorship-Centric Approach to the Authentication of Social-Networking Evidence.” While voicing significant concerns about the current lack of a required nexus between the online content and its real-life poster, he proposed detailed admissions criteria for social network postings. He offered several factors to be examined by judges in making rulings about such data, including who owns the account, how secure the account is, and how / when the post in question was created.

As Facebook and other social networking information becomes increasingly important to the outcomes of legal cases, a framework like this is essential to bring our procedures in line with the nature of 21st century evidence and to ensure our system continues to meet Due Process standards. Digital evidence is largely unexplored territory for jurists and scholars alike, and it’s my hope that evidentiary standards like those proposed by Professor Robbins are seriously considered by the legal community.

Six Strikes and You’re Out: Can a New RIAA Policy Solve Old Online File Sharing Problems?

December 4, 2012
Intellectual Property, Internet, Social Media

by Ian Birrell

Since at least 1999 when Napster was originally launched, internet piracy, or downloading copyrighted materials (especially songs, videos, and games,) has been a contentious activity. The Recording Industry Association of America (RIAA) has historically taken a very public and aggressive stance by finding individuals associated with IP addresses matching those where this “file sharing” is coming from. After finding such a target, the RIAA would send a letter demanding a settlement for thousands of dollars or threatening litigation, risky and expensive to the target, despite a potentially very small monetary value of downloaded material. The RIAA suits, which have continued for a number of years, include a number of well publicized absurd claims.

This journal has written on the RIAA policies before. In 2008, we published a student note by Daniel Reynolds named The RIAA Litigation War on File Sharing and Alternatives more Compatible with Public Morality. Reynolds argued then that the policies were ineffective and unconscionable and urged change.

Change is coming. Later this year, after a number of years in development, a number of major carriers are planning to institute a “six-strikes” plan. This is a voluntary agreement between ISPs and certain content providers (the government is not involved,) and is made to target peer-to-peer downloading. The plan has a notice phase, an acknowledgement phase, and a mitigation phase. Under the plan, a private carrier – say, Time Warner – will first notify a user that there has been an allegation of illegal copyright activity, then force a user who may be infringing (and who may or may not own the account) to acknowledge having received such notices, before the user finally suffers consequences. These consequences can include throttling of internet speed or having popular websites blocked.

Proponents point to a few positives under this proposal, including the user’s right to appeal to an independent arbitrator (for a $35 fee.) Additionally, though lawsuits are still permitted by copyright holders, the hope is that the system will educate the public about copyright infringement and that, on notice that their behavior is illegal, infringement will at least slow down. Ron Wheeler, a Senior VP at Fox, said that, “This system is not designed to produce lawsuits–it’s designed to produce education.”

Unfortunately, a lack of education may not be the underlying problem. Reynolds noted that, even in 2004, awareness of the (il)legality of file sharing was widespread. And increasing awareness may not sharply decrease infringement. Critics further note that, despite the safeguards, penalties are ultimately based on accusations rather than definite findings of infringement. If the system ultimately works, though, it may be worth the headaches for both sides. Consumers will not be able to infringe (as much) but the public will also not suffer suits against twelve-year-olds for sharing music.

Growth of Social Media Outpaces Traditional Evidence Rules

November 14, 2012
Internet, Litigation, Social Media

by Sabrina Ly

Evidence from social networking websites is increasingly involved in a litany of litigation. Although the widespread use of social media can lead to increased litigation, as well as increasing the cost of litigation, use of social media has assisted lawyers and police officers in proving cases and solving crimes. In New Jersey, for example, two teenage brothers were arrested and charged with murder of a twelve year-old girl. What led to the two teenagers’ arrest was evidence left behind in their homes along with a Facebook post that made their mother suspicious enough to call the police. In another case, Antonio Frasion Jenkins Jr. had charges brought against him by an officer for making terroristic threats to benefit his gang. Jenkins posted a description of his tattoo on Facebook which stated: “My tattoo iz a pig get’n his brains blew out.” Pig is considered a derogatory term for a police officer.The tattoo also had the officer’s misspelled name and his badge number. The officer who is a part of the gang investigation team saw the Facebook post and immediately filed charges against Jenkins as he interpreted the tattoo as a direct threat against him and his family. These are two of the many situations in which social networking websites have been used as evidence to bring charges against or locate an individual.

The myriad of charges brought against an individual given evidence found on their social networking websites is the basis for Ira P. Robbin’s article “Writings on the Wall: The Need for an Author-Centric Approach to the Authentication of Social-Networking Evidence” published in Volume 13.1 of the Minnesota Journal of Law Science and Technology. Robbins begins by discussing the varying ways in which social networking websites have been used as evidence in personal injury and criminal matters. Specifically, Twitter, Facebook and Myspace postings have been deemed discoverable if relevant to the issue and admissible only if properly authenticated by the Federal Rules of Evidence. However, courts across the country have grappled with the evidentiary questions that are presented by social media. In some states, the court admitted the evidence given distinctive characteristics that created a nexus between the posting on the website and the owner of the account. In other states, the court found the proof of the nexus was lacking. Regardless, overall concerns of potential hackers or fictitious accounts created by a third-party posing as someone else create problems of authentication.

Robbins argues that the traditional Federal Rules of Evidence do not adapt well to evidence from social networking websites. Accordingly, Robbins proposes the courts adopt an author-centric authentication process that focuses on the author of the post and not just the owner of the account. Failing to adopt an authentication method for evidence obtained on social networking websites may create consequences that could harm the values and legitimacy of the judicial process. The ability to manipulate or fake a posting creates unreliable evidence that would not only undermine the ability of the fact-finder to determine its credibility but would also unfairly prejudice the party in which the evidence is presented against.

Technology is an area of law that is rapidly evolving and, as a result, has made some traditional laws antiquated. In order to keep pace with these changes, legislators and lawmakers must constantly reexamine traditional laws in order to promote and ensure fairness and accuracy in the judicial process. Robbins has raised an important issue regarding authentication of evidence in the technological world, but as it stands there is much work to be done as technological advances outpace the reformation of traditional laws that govern it.

Censorship, Technology, and Bo Xilai

October 25, 2012
Internet, Privacy, Social Media

by Jeremy So, UMN Law Student, MJLST Managing Editor

As China’s Communist party prepares for its once-a-decade leadership transition, the news has instead been dominated by the fall from power of Bo Xilai, the former head of the Chongching Communist Party and formerly one of the party’s potential leaders. While such a fall itself is unusual, the dialogue surrounding Bo’s fall is also remarkable–Chinese commentators have been able to express their views while facing only light censorship.

This freedom is remarkable because of the Chinese government’s potential control over the internet, which was recently outlined by Jyh-An Lee and Ching-Yi Liu in “Forbidden City Enclosed by the Great Firewall: The Law and Power of Internet Filtering in China” recently published in the Minnesota Journal of Law, Science & Technology. Lee and Liu explain how early on in the internet’s development, the Chinese government decided to limit a user’s ability to access non-approved resources. By implementing a centralized architecture, the government has been able to implement strict content filtering controls. In conjunction with traditional censorship, the Chinese government has an unprecedented amount of control over what can be viewed online.

Lee and Liu argue that these technological barriers rise to the level of de facto law. Within this framework, the Chinese government’s history of censorship indicates that there are rules against criticizing the party, its leaders, or its actions.

Chinese internet reactions to the Bo Xilai case are notable because thy have included criticism of all three. Posts expressing differing opinions, including those criticizing the government’s reaction and those supporting the disgraced leader, have not been taken down. Such posts have remained online even while commentary on China’s next leader, Xi Jinping, has been quickly taken down. Given the Chinese government’s potential control and past use of those controls, the spread of such dissent must be intentional.

Whether this is part of a broader movement towards more openness, a calculated response by the party, or a failure of Chinese censorship technology remains to be seen. Regardless, the changing nature of the internet and technology will force the Chinese government to adapt.

Google Glass: Augmented Realty or ADmented Realty?

September 20, 2012
Internet, Privacy, Social Media

by Sarvesh Desai, UMN Law Student, MJLSTStaff

Google glasses . . . like a wearable smartphone, but “weighing a few ounces, the sleek electronic device has a tiny embedded camera. The glasses also deploy what’s known as a ‘heads-up display,’ in which data are projected into the user’s field of vision on a small screen above the right eye.”

The glasses are designed to provide an augmented reality experience in which (hopefully useful) information can be displayed to the wearer based on what the wearer is observing in the world at that particular moment. The result could be a stunning and useful achievement, but as one commentator pointed out, Google is an advertising company. The result of Google glasses, or as Google prefers to call them “Google Glass”(since they actually have no lenses) is that advertisements following you around and continuously updating as you move through the world may soon be a reality.

With the ever increasing digital age, more of our movements, preferences, and lives are incessantly tracked. A large portion of the American population carries a mobile phone at all times, and as iPhone users learned in 2011, a smartphone is not only a handy way to keep Facebook up to date, it is also a potential GPS tracking device.

With technologies like smartphones, movement data is combined with location data to create a detailed profile of each person. Google Glass extends this personal profile even further by recording not only where you are, but what you are looking at. This technology makes advertising, as displayed in the hit movie, The Minority Report, a reality, while also creating privacy issues that previously could not even be conceptualized outside science fiction.

Wondering what it might look like to wander the world, as context-sensitive advertisements flood your field of vision? Jonathan McIntosh, a pop culture hacker has the answer. He released a video titled ADmented Reality in which he placed ads onto Google’s Project Glass promotional video demonstrating what the potential combination of the technology, tracking, and advertising might yield. McIntosh discussed the potential implications of such technology in the ABC News Technology Blog. “Google’s an ad company. I think it’s something people should be mindful of and critical of, especially in the frame of these awesome new glasses,” McIntosh said.

As this technology continues to improve and become a more integrated part of our lives, the issue of tracking becomes ever more important. For a thorough analysis of these important issues, take a look at Omer Tene and Jules Polonetsky’s article in the Minnesota Journal of Law, Science & Technology, “To Track or ‘Do Not Track’: Advancing Transparency and Individual Control in Online Behavioral Advertising.” The article covers current online tracking devices, the use of tracking, and recent developments in the regulation of online tracking. The issues are not simple and there are many competing interests involved: efficiency vs. privacy, law enforcement vs. individual rights, and reputation vs. freedom of speech, to name a few. As this technology inexorably marches on, it is good to consider whether legislation is needed and, if so, how will it balance those competing interests. In addition, what values do we consider to be of greatest importance and worth preserving at the risk of hindering “awesome new” technology?

FBI Face Recognition Concerns Privacy Advocates

September 19, 2012
Internet, Law Enforecement, Privacy, Social Media

by Rebecca Boxhorn, Consortium Research Associate, Former MJLST Staff & Editor

Helen of Troy’s face launched a thousand ships, but yours might provide probable cause. The FBI is developing a nationwide facial recognition database that has privacy experts fretting about the definition of privacy in a technologically advanced society. The $1 billion Next Generation Identification initiative seeks to harness the power of biometric data in the fight against crime. Part of the initiative is the creation of a facial photograph database that will allow officials to match pictures to mug shots, electronically identify suspects in crowds, or even find fugitives on Facebook. The use of biometrics in law enforcement is nothing new, of course. Fingerprint and DNA evidence have led to the successful incarceration of thousands. What privacy gurus worry about is the power of facial recognition technology and the potential destruction of anonymity.

Most facial recognition technology relies on the matching of “face prints” to reference photographs. Your face print is composed of as many as 80 measurements, including nose width, eye socket depth, and cheekbone shape. . Sophisticated computer software then matches images or video to a stored face print and any data accompanying that face print. Accuracy of facial recognition programs varies, from accuracy estimates as low as 61% to as high as 95%.

While facial recognition technology may prove useful for suspect identification, your face print could reveal much more than your identity to someone with a cell phone camera and a Wi-Fi connection. Researchers at Carnegie Melon University were able to link face print data to deeply personal information using the Internet: Facebook pages, dating profiles, even social security numbers! Although the FBI has assured the public that it only intends to include criminals in its nationwide database, this has not quieted concerns in the privacy community. Innocence before proof of guilt does not apply to the collection of biometrics. Police commonly collect fingerprints from arrestees, and California’s Proposition 69 allows police to collect DNA samples from all people they arrest, no matter the charge, circumstances, or eventual guilt or innocence. With the legality of pre-conviction DNA collection largely unsettled, the legal implications of new facial recognition technology are anything but certain.

It is not difficult to understand, then, why facial recognition has captured the attention of the federal government, including Senator Al Franken of Minnesota. During a Judiciary Committee hearing in July, Senator Franken underscored the free speech and privacy implications of the national face print database. From cataloging political demonstration attendees to misidentifications, the specter of facial recognition technology has privacy organizations and Senator Franken concerned.

But is new facial recognition technology worth all the fuss? Instead of tin foil hats, should we don ski masks? The Internet is inundated with deeply private information voluntarily shared by individuals. Thousands of people log on to Patientslikeme.com to describe their diagnoses and symptoms; 23andme.com allows users to connect to previously unknown relatives based on shared genetic information. Advances in technology seem to be chipping away at traditional notions of privacy. Despite all of this sharing, however, many users find solace and protection in the anonymity of the Internet. The ability to hide your identity and, indeed, your face is a defining feature of the Internet and the utility and chaos it provides. But as Omer Tene and Jules Polonetsky identify in their article “To Track or ‘Do Not Track’: Advancing Transparency and Individual Control in Online Behavioral Advertising,” online advertising “fuels the majority of free content and services online” while amassing enormous amounts of data on users. Facial recognition technology only exacerbates concerns about Internet privacy by providing the opportunity to harvest user-generated data, provided under the guise of anonymity, to give faces to usernames.

Facial recognition technology undoubtedly provides law enforcement officers with a powerful crime-fighting tool. As with all new technology, it is easy to overstate the danger of governmental abuse. Despite FBI assurances to use facial recognition technology only to catch criminals, concerns regarding privacy and domestic spying persist. Need the average American fear the FBI’s facial recognition initiative? Likely not. To be safe, however, it might be time to invest in those oversized sunglasses you have been pining after.

Social Media Evidence: Not Just an Attorney Niche

September 10, 2012
Internet, Litigation, Social Media

Once just the province of Generation Y and high tech culture, it is not breaking news that social media is now as mainstream as . . . well . . . the internet. What is new is that social media issues are no longer just an interesting specialty niche for tech savvy lawyers, but something that likely touches most attorneys’ practices.

A look at the rapid rise of appellate level cases involving social media evidence gives a hint at just how common social media evidence is becoming in civil litigation and criminal prosecution. The chart accompanying this post, while not a definitive study, shows the results of a Westlaw search for the number of appellate cases that likely involved the admission of evidence related to the major social media outlets — increasing 8-fold since 2008 and doubling in the past two years.

In separate research, eDiscovery firm “X1 Discovery” recently reported finding 674 appellate cases in 2010-2011 that mentioned social media evidence. With that many cases involving social media evidence at the appellate level, it is not unreasonable to conclude that social media evidence must be seen frequently by the lower courts.

Whether it is understanding how to authenticate a Tweet during trial, or avoiding a career-ending discovery sanction for spoliation of Facebook evidence, there is a growing need for litigators and other attorneys to understand the implications of social media for clients.

In issue 13.1 of the Minnesota Journal of Law, Science & Technology, Professor Ira P. Robbins of American University’s Washington College of Law outlines the challenges involved in authenticating social media evidence and proposes an authorship-centric approach to the authentication of such evidence. Read “Writings on the Wall: The Need for an Authorship-Centric Approach to the Authentication of Social-Networking Evidence“

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