Big Brother Really Is Watching You

The latest high-tech crime fighting tool for the La Crosse, Wisconsin police department is Facebook according to the “La Crosse Tribune.” The department recently used pictures from Facebook to charge students from the University of  Wisconsin — La Crosse aged 19 and 20 for underage drinking.  I guess La Crosse is a quiet town without a lot of serious crime so the police have lots of time to go looking for trouble.  Tax authorities in the U.S. and Belgium have also used Facebook in their investigations.  Just more proof that what you do online does matter.

Don’t Sue! Blog? Well, Talk It Out At Least

Here’s some more information on the iPod lawsuit from the “In the eyes of the law” blog by attorney Kimberly Houser.  The question phrased by Ms. Houser is whether “blogging is better than going to court?”  I don’t know about that.  Certainly, that may the best approach for small slights or questionable business practices.

There have been a number of  instances where I did my best for a client by keeping them out of court.  A classic example of this was the engineering client who was wronged by a major national home builder.  The client was ready to sue, but my initial question was whether the client  wanted to keep or lose their relationship with this major company.  Of course, the client wanted to keep it and we adjusted our approach accordingly.  The end result was the major company admitted the error of its ways and continued to do business with the client.  That’s a result that I can take pride in.  However, there are other times where the client wants “just a letter” or where they want to negotiate, but my experience tells me that it will clearly be a waste of time.  In those cases, time and money can actually be saved by just getting down to the inevitable.

It Is Called The Volume Control, Stupid!

The Federal Ninth Circuit Court of Appeals in San Francisco is often described as the most liberal Federal appeals court in all the land.  Thus, it would normally be considered pro-plaintiff in most cases.  Nevertheless, Engadget reports that it recently upheld the ruling of a lower court dismissing a class action suit against Apple for iPod related hearing losses.  Perhaps the class representatives weren’t aware that iPods do come with adjustable volume settings.  I’m not sure that my son is aware of that.  It is always a bad sign if the ear buds are in and you can still tell what someone is listening to.

How to Clean Up Your Social Networking for Your Case

Texas lawyer, Jeff Rasansky, gives some sound advice on managing your social networking in the event that you become involved in a lawsuit.  Although written in the context of his personal injury practice, this advice pertains to any lawsuit.  If you’ve read some of my other posts, you already know that your online image can affect your case, including even a landlord/tenant case. An opposing lawyer or client can find out more about you in 2 minutes for free than thousands of dollars and hours of private investigator time would have revealed just a few years ago.  Right now Casey Anthony’s online trail is playing a major role in the investigation into her daughter’s murder as well as influencing any potential juror pool.

Of course, my preference would be for you to properly manage your online image to create a positive impression of yourself from the beginning, as I describe here in “MySpace Can Help Your ‘Case’ Too.” However, if all else fails and you find yourself embroiled in a lawsuit, Mr. Rasansky offers some good advice for how to manage your online postings. Step one is no matter what kind of case you’re involved in, let your lawyer know if you maintain any social networking sites or any personal websites.  Step two is to Google yourself and see what comes up.  Other people may have posted things about you that you are not aware of.  Step three is to adjust privacy settings as necessary, delete as necessary, and quit posting or control your posting to create a positive image.

How to Get Out of Jury Duty

I’ve written before about the dangers of online postings.  A little self censorship is a good idea.  Now it seems that your Facebook status can get you out of jury duty too.  All one juror had to do is set his Facebook status as:  “Barry Price is sitting in hell … aka jury duty.” It seems that a paralegal for the plaintiff’s attorney in the multi-million dollar lawsuit for which Mr. Price was a potential juror was checking the Facebook pages of the jurors.  He complained to the judge and it was buh-bye Barry.  I’m not sure that should have been enough to get him excused for cause, but it was a high stakes, high profile case.

A juror in England, however, engaged in some egregiously improper conduct.  Jurors are forbidden from discussing cases outside of court while the trial is going on.  In fact, they cannot even discuss it among themselves until all the evidence is presented.  They are supposed to base their verdicts solely on the evidence presented and to not consider outside factors or influences.  They are not allowed to view any news about the trial if it is in the papers or on television.  So what does she do?  She posts details of the criminal sex abuse case online and then polls her Facebook Friends for their opinions. She was, of course, dismissed from the case when her misconduct was discovered.  She was lucky not to have been held in contempt of court.

9th Circuit Court of Appeals Says Probable Cause Needed to View Electronic Messages

The 9th Circuit Court of Appeals, which is located in San Francisco, has ruled that law enforcement needs a probable cause warrant to read copies of your electronic messages that have been stored less than 180 days even if you have already downloaded or read them.  The ruling also prohibits employers from getting the contents of employee emails or text messages from the service provider without employee consent.  See, Quon v. Arch Wireless Quon was an Ontario, California Police Officer who was provided with a two way alphanumeric pager by the Ontario Police Department.  He used it to send both work and personal messages.  Quon sued Arch for violation of the Stored Communications Act and the Ontario Police Department for violation of the Fourth Amendment.  The 9th Circuit ruled that Arch did violate the Act and that the Police Department violated the Fourth Amendment.

The Electronic Frontier Foundation provides an analysis of the opinion on the Deeplinks Blog.  Although many headlines would have you believe that this is a broad ranging opinion that prohibits employers from reading text messages in general, the opinion may be more limited than that. Quon was a civil service employee working for a government agency that was also a law enforcement agency.  The Ontario Police Department is subject to the Fourth Amendment, but most employers are not.  The Fourth Amendment limits government not individuals.  However, there may be other limits on the ability of individuals to snoop.  The 9th Circuit is also famously liberal so it remains to be seen how other courts will interpret the Stored Communications Act as it applies to employers seeking information transmitted via devices owned and paid for by the employer.

Ironically, the 9th Circuit is the appellate court on which Judge Kozinski, who got into some trouble due to a personal web page, sits.

MySpace Can Help Your “Case” Too

I’m picking on MySpace because it is the biggest social network and was involved in both of my cases. Everything I say here is equally applicable to Facebook, Flickr, Twitter, LinkedIn, and anything that you publish online or that is published about you online.  You don’t have to be a blogger or into social networking to get mentioned online.  I’m using the word “case” in the broad non-legal sense of the word as in stating your case to an employer, a friend, or the public at large.

Even innocent things may harm you. At least one prospective school teacher was allegedly denied her teaching degree due to her online activities. You may be a kind, considerate, thoughtful person, who excels in school, but if all you post are party pictures, then you may be giving the public the false impression that you’re a hard drinking, hard partying, ne’er do well. You need to post pictures and comments about your charity work, study habits, and service as the designated driver. In other words, you need to make sure your public image is an accurate view of the well rounded complex person that you are.  All it allegedly took in that one case was a single “drunken pirate” picture. So maybe the best policy is no “drunken” pictures at all. If you’re not complex and well rounded, but want to be employed — fake it!

If you’re in business or politics, you have to be careful not to offend. If you live in “red America” you don’t want to advertise your undying appreciation of all things Obama or Clinton. Likewise, if you live in New York City or San Francisco, you don’t want to advertise that you are president of the George Bush Fan Club. If you’re a small town mayor, you may not want to post pictures of yourself in lingerie posed on the town’s fire truck (no matter how good you look in lingerie.)   I have a personal blog and I think twice about anything I put there just like I think twice about every tweet.

Before you post anything online, you might want to ask yourself some questions like:

  • Will I still be happy with this in five, ten, or fifteen years?

People mature and change over time. I read an advice column in WIRED magazine recently where an employer expressed doubt over hiring someone several years out of school because of their partying image on Facebook. The wise answer was to cut the kid some slack. If you’d had Facebook in college, could you have passed that test?

  • Would I want my mother, father, child, student, Sunday school class, significant other, spouse, co-worker, or employer to see or read this? (This goes for both current and future members of these categories.)

You may not be married yet, you may not have children yet, but you may someday. When you do, would you want them to find what you’ve posted? Will some future boss quietly not hire you because of something he finds out about you online?  Remember employers, insurance adjusters, opposing counsel, police, school administrators and others can and will look you up online.

  • Am I giving a false impression of myself?

Could I give a more balanced impression of myself if I post pictures of me helping out at the soup kitchen or tutoring kids next to the pictures of my last drunken party?

I had a friend who was involved in local politics long before the Internet.  Any time he posed for a picture he made sure his hands were empty and his tie was tightened or off. He believed any time you see a picture of someone holding a drink at a party that you assume that they’re drunk or getting drunk even if they’re drinking club soda or water. His tie was always tight for the same reason. A loose tie makes you look like a lush. I still remember his advice when I pose for a picture. It was good advice then, and it is better advice now. By the way, if you’re undressed, or half dressed and anyone takes out a camera — run! And don’t ever email anyone a digital photo you wouldn’t want the entire world to see.  Enough of these kinds of photos have found their way to the web without the subject’s permission that one Congressman thinks there ought to be a law.

If you manage your online image from the beginning, you won’t have to hire someone to clean it up for you later. Google your own name periodically, especially if you are interviewing for a job, are involved in a lawsuit, or have applied for anything that might involve investigating your background.  If you find any dirt, don’t despair! You can clean it up. For a few dollars a year, you can register your own name as a domain and set up a webpage about yourself.  If you post regularly, this will help keep a positive image of you at the top of the search engines. Just because you’re paranoid doesn’t mean you’re not being Googled! Seriously, get your online house in order, keep it in order, and social media can be your friend presenting a positive online image for you to prospective clients, employers, mates, and others. Now get out there and Google. Good luck!