Should an investigator or attorney “friend” a prosecution witness in order to find impeachment evidence? Are there legal or ethical bars to surreptitiously gathering data from social network profiles? Should the intent of the user have any bearing on the formulation of law related to access? These and more questions were stirred up in the mix of case studies presented at the (first, annual?) symposium, Social Networks: Friends or Foes? Confronting Online Legal and Ethical Issues in the Age of Social Networking, sponsored by UC Berkeley School of Law. Yeah, a long title but, hey, these folks are academics. And the case studies constituted just the first panel (“Problems Unique to Social Networking and the Law”) of an extraordinary assemblage of academic, government, activist, policy and practicing lawyers rounding out the 5-panel day.
Much of the discussion concerned access to profile content, – the difference between civil and criminal (where there’s the familiar prosecution/defense imbalance) cases – whether certain information should be private even if it can be viewed by unintended parties. For example, should employers be able to view deleted personal information? No one mentioned the issue of whether schools have a legal right to compel students to turn over their user names/passwords (See: “Area School Wants Access To Students’ Social Networking”). There may be instances when a legal requirement for disclosure would apply. Lauren Gelman, Executive Director, Stanford Law, Center for Internet and Society, raised the question of whether evidence in the online sites could be used, say, in divorce cases, to support evidence gathered by other means. The Deputy General Counsel for Facebook took the position that user’s profile content is private, begging the audience to sue the company to settle issues of access. Yeah, the big brother of the moment IS laughing.
Bill Gallagher, a criminal defense attorney, noted that a circumvention of the Facebook corporate roadblock would be to get witnesses to bring to court copies of their social network profiles. But it’s impossible to get a judge to compel a witness to do so. He added that defense attorneys have to get a cooperative prosecutor to issue a subpoena in order to get access to a social network profile. Life is very different for government attorneys and law enforcement…
But this was an environment in which those who might be adversaries outside the ivory walls engaged in friendly disagreements, more in the form of musings than hard-line positions. Perhaps this was, in part, due to the unsettled nature of the law and the do’s, don’ts and can’ts of social networking.
Paul Ohm was on the panel, “The Law and Ethics of Covert or Deceptive Data-Gathering”, proposing that some content — photos and status updates — should be sealed from view, treated differently than other types of documentary evidence because it’s transient, akin to a passing comment over the water-cooler. Lauren Gelman inquired whether user profile content was different in kind from other types of memorializing due to the privacy restrictions that the account holder sets. She added that the online content has a long searchable life, which also gives it a unique nature. And who decides what is private? As Paul Ohm rightly pointed out, commercial entities are the holders of that power.
Speakers on the panel, “Regulating Crime in the Cloud: Policing Unlawful Behavior on Social Networks”, discussed release of email, who should interpret the meaning of an online comment or image, weighting the probative value vs. the harm caused. A passing observation by Judge Kurt Kumli, Santa Clara County California Superior Court, caught my attention. (Correct me if I’m wrong!) In a domestic violence matter, a defendant can “follow” the victim on her Facebook site without violating a protective order.
In the spirit of academic engagement (unlike government, that must be dragged, kicking and screaming), all of the conference presentations were recorded and will be available on the website.
In the meantime, take a look at this guide to social networking research that was prepared by the Samuelson Law, Technology & Public Policy Clinic in response to a request from the Santa Clara Public Defender: Handbook on Conducting Research on Social-Networking Websites in California.
Cases, news reports, books, law journal articles and opinions are noted in the resources section of the website and the Case Studies are also posted. The mp3 files of all the panels, the audience comments and questions and the Keynote Address (by John Carlin, Chief of Staff and Senior Counsel to the Director of the F.B.I.) should be available this week.
UPDATE (10/30/09): The mp3 audio files are at the conference site.
Read Donna Seyle’s conference review, The Legal Dilemmas of Social Networking, Part 1
A review from the non-profit sector is here.