Social Media

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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