Ethics in Social Media Investigations

Heidi Demers

Gavin O’Connor

Fanny Steinlage

Linda Houle

• Anna C. Carlozzi, Cabrini Green Legal Aid• Breanna N. Kantor, Henderson Parks, LLC• Randee J. Waldman, Barton Juvenile Defender Clinic, Emory Law School

During the 2017 Juvenile Defender Leadership Summit in Albuquerque, New Mexico, Linda Houle witnessed an entertaining ethical presentation and immediately knew she wanted to share it one day…today is your lucky day and we have the following creators of this presentation to thank:

Today’s Agenda

The Statistics of Social Media Use

Social Media and the Law: Ethics, Admissibility, and Strategy

Social Media Use in Practice

Today’s Agenda

The Statistics of Social Media Use

Social Media and the Law: Ethics, Admissibility, and Strategy

Social Media Use in Practice

Who is on Social Media?

• 90% of adults age 18-19 use social media

• 68% of women are active on social media, compared to 62% of men

• The average internet user has 7 social media accounts• 16-24-year-olds have an average of 8 account each• These are up from 5.5 and 6.5 accounts, respectively, in 2014

• The total number of active social media users globally is 2.31 billiion, or 31% of the total population

• This is a 10% increase in the last year• 1.97 billion users access social sites through mobile devices

Andrew Perrin, “Social Media Usage: 20015-2015” PEW RESEARCH CENTER (October 8, 2015), available at http://www.pewinternet.org/2015/10/08/social-networking-usage-2005-2015/; “Internet users have average of 7 social accounts” GLOBAL WEB INDEX (June 9, 2016), available at https://www.globalwebindex.net/blog/internet-users-have-average-of-7-social-accounts; Jason Mander, “Internet users have average of 5.54 social media accounts”, GLOBAL WEB INDEX (January 23, 2015), available at http://www.globalwebindex.net/blog/internet-users-have-average-of-5-social-media-accounts; Shea Bennet, “The Average Internet User Has 5 Social Media Accounts”, AD WEEK (October 24, 2014), available at http://www.adweek.com/socialtimes/social-media-accounts/502588; Simon Kemp, “Digital in 2016” WE ARE SOCIAL (August 2015), available at http://www.slideshare.net/wearesocialsg/digital-in-2016/download;

Social Networking Websites

• Every minute:• 347,222 tweets sent on Twitter• 4.2 million Facebook users “like”

something• 284,722 “snaps” are sent via

Snapchat• 300 hours of new video is uploaded

to YouTube• 3,600 new photos are posted on

Instagram

(2016: Josh James, How much Data Is Created Every Minute)

Mary Madden, et al. “Teens, Social Media, and Privacy”, PEW RESEARCH CENTER (May 21, 2013), available at http://www.pewinternet.org/2013/05/21/teens-social-media-and-privacy/.

What Teens are Posting

Mary Meeker, “Internet Trends 20165– Code Conference,” KLEINER, PERKINS, CAUFIELD, BYERS (May 27, 2015), available at http://www.slideshare.net/kleinerperkins/internet-trends-v1.

Smartphone Usage

Mary Meeker, “Internet Trends 20165– Code Conference,” KLEINER, PERKINS, CAUFIELD, BYERS (May 27, 2015), available at http://www.slideshare.net/kleinerperkins/internet-trends-v1.

Smartphone Camera Usage

Who is Using Social Media

“GWI Social” GLOBAL WEB INDEX (Q1 2015), available at http://www.thewebmate.com/wp-content/uploads/2015/05/GWI-Social-Report-Q1-2015.pdf.

Mary Meeker, “Internet Trends 20165– Code Conference,” KLEINER, PERKINS, CAUFIELD, BYERS (May 27, 2015), available at http://www.slideshare.net/kleinerperkins/internet-trends-v1.

Which Social Networking Sites are Being Used

Emerging Adults and Social Media

• In North America, young adults and teenagers aged 16-24 spend most time online via mobile devices, more than any other age group

• They spend nearly 200 minutes per day on a mobile device

• Teen and Millennial age groups now spend almost as much time on mobile devices as they do an a PC or laptop

“Reach of leading social media and networking sites used by teenagers and young adults in the United States as of February 2016” STATISTICA (February 2016), available at https://www.statista.com/statistics/199242/social-media-and-networking-sites-used-by-us-teenagers/.

Current Leading Social Media Websites

01020304050

Market Share of Most Popular Social Media Sites (Aug 2016)

% based on market shareof visits

“Leading social media websites in the United States in August 2016, based on share of visits,” STATISTA (August 2016), available at https://www.statista.com/statistics/265773/market-share-of-the-most-popular-social-media-websites-in-the-us/.

Who Else is on Social Media?

Drew Hendricks, “The Shocking Truth About Social Networking and Crime” SOCIALNOMICS (March 4, 2014), available at http://socialnomics.net/2014/03/04/the-shocking-truth-about-social-networking-crime/, (noting that “81 percent of Internet-initiated crime involves social networking sites, mainly Facebook and Twitter. These platforms are ideal sources for criminals to obtain personal information from unsuspecting people. Burglars lurk around social media sites looking for information to show that homeowners are away. Geotags, many of which are automatic, instantly pinpoint exact locations that create criminal opportunities.”); Ed Smith, “Social Media and Crime”, CRIMEWIRE (August 21, 2013), available at https://www.instantcheckmate.com/crimewire/2013/08/21/social-media-and-crime-2/.

Who Else is on Social Media?

Drew Hendricks, “The Shocking Truth About Social Networking and Crime” SOCIALNOMICS (March 4, 2014), available at http://socialnomics.net/2014/03/04/the-shocking-truth-about-social-networking-crime/, (noting that “81 percent of Internet-initiated crime involves social networking sites, mainly Facebook and Twitter. These platforms are ideal sources for criminals to obtain personal information from unsuspecting people. Burglars lurk around social media sites looking for information to show that homeowners are away. Geotags, many of which are automatic, instantly pinpoint exact locations that create criminal opportunities.”); Ed Smith, “Social Media and Crime”, CRIMEWIRE (August 21, 2013), available at https://www.instantcheckmate.com/crimewire/2013/08/21/social-media-and-crime-2/.

Police Departments and Social Media

• The NYPD has a social media unit, which tracks criminal behavior on social media sites

• With proper authorization, Chicago Police Department officers can create alias social media accounts and identities

• A Georgia juvenile posted a video on Instagram of himself inside a car shortly after he stole it and bragged about it on other social media sites. Police were able to obtain a warrant for his arrest using his online presence.

Chicago Police Department General Order G09-01-06, Use of Social Media OutletsCops: Teens steal Porsches, brag about it on Instagram, Atlanta Journal Constitution (Jan. 25, 2017), http://www.ajc.com/news/breaking-news/cops-teens-steal-porsches-brag-about-instagram/ysGdeTVZrY6Vv3Rn1VJc5I/

Privacy and Security

Ed Smith, “Social Media and Crime”, CRIMEWIRE (August 21, 2013), available at https://www.instantcheckmate.com/crimewire/2013/08/21/social-media-and-crime-2/.

Today’s Agenda

The Statistics of Social Media Use

Social Media and the Law: Ethics, Admissibility, and Strategy

Social Media Use in Practice

What Does Social Media Evidence Look Like?

• Photos

• Text messages

• Printouts/screen captures

• Video

• Audio recordings/voicemail

How Can Social Media Evidence be used For and Against your Client?

For your Client• Can provide exculpatory evidence to

delinquency matters/criminal charges• Potential alibi• “Facebook friend” example

• Can provide evidence for mitigation• Incarcerated clients

• “Best” communication method for clients

• “YouTube Artist” example

Against your Client• Can become evidence for criminal

charges• Anything you say or post can and will be

used against you in a court of law

• Violations of Probation/Court-Monitoring• Specific instructions• Diversion programs• Possible violations of Aftercare Agreement

• Can be used during expungement proceedings

ABA Model Rules

• ABA Model Rules of Professional Conduct* implicated in using social media to source information:

• 1.6 Confidentiality of Information• 4.1 Truthfulness in Statements to Others• 4.2 Communication with Person Represented by Counsel• 4.3 Dealing with Unrepresented Persons• 4.4 Respect for Rights of Third Persons• 5.3 Responsibility Regarding Non-lawyer Assistant• 8.4 Misconduct

*The same Arizona Rules of Professional Conduct are also implicated.

Public Profiles

• Can you investigate public profiles?

• Can you use your client’s account to look at your client’s friends or followers?

Public Profiles: Ethical Issues

• Public vs. Private social media information

• Fourth Amendment vs. State Ethics• US v. Lifshitz, 369 F.3d 173, 190 (2nd Cir. 2004): Users

would logically lack a legitimate expectation of privacy in the materials intended for publication or public posting.

• People v. Harris, 945 N.Y.S. 2d 505 (2012): Defendants have no expectation of privacy in sent Tweets.

Public Profiles: Sourcing Information

• Accessing public social media profiles and using information found therein:• NY State Bar Committee on Professional Ethics: “Because harvesting public social

media does not require a lawyer to ‘friend’ the other party, accessing the social network pages of the party will not violate Rule 8.4, which prohibits deceptive or misleading conduct.”

• ABA Formal Opinion: “Unless limited by law or court order, a lawyer may review a juror’s or potential juror’s internet presence, which may include postings by the juror or potential juror in advance of and during a trial, but a lawyer may not communicate directly or through another with a juror or potential juror.

“Ethics Opinion 843” New York State Bar Association Committee on Professional Ethics (September 9, 2010), available at http://www.nysba.org/CustomTemplates/Content.aspx?id=5162; “Formal Opinion 466: Lawyer Reviewing Jurors’ Internet Presence” AMERICAN BAR ASSOCIATIONSTANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY (April 24, 2014), available at http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/formal_opinion_466_final_04_23_14.authcheckdam.pdf; Saleel V. Sabnis, “Attorney Ethics in the Age of Social Media” AMERICAN BAR ASSOCIATION (June 8, 2016), available at http://apps.americanbar.org/litigation/committees/professional/articles/spring2016-0616-attorney-ethics-age-social-media.html.

“Friending”

• Can you friend other professionals in the legal field?

• Can you friend an unrepresented party?

• Can you friend a represented party?

• Can you friend a witness?

• If you do friend a party/witness, what do you have to disclose in the process?

• Can you create a “dummy” or “professional” account?

“Friending”: Ethical Issues

• “Friending” judges• ABA Formal Opinion 462, Judge’s Use of Electronic

Social Networking Media, February 21, 2013: “Judicious use of ESM [Electronic Social Media] can benefit judges in both their personal and professional lives. . . . When used with proper care, judges’ use of ESM does not necessarily compromise their duties under the Model Code [of Judicial Conduct] any more than use of traditional and less public forums of social connection such as U.S. Mail, telephone, email or texting.”

• Oklahoma Judicial Ethics Opinion 2011-3 (July 6, 2011): Judge cannot be Facebook friend with attorneys, social workers, law enforcement officers, or others “who regularly appear or are likely to appear in their court.”

“Friending”: Ethical Issues

• “Friending” witnesses• If a client friends a witness on his or her own, this is likely not an ethical issue for

the lawyer• However, if a “defense agent,” including the client, “friends” a witness, AMA Model

Rule 5.3 says the lawyer is responsible

• You can set up a “professional” account in order to friend someone as long as it is honest and identifies you

• It can be problematic if you somehow mislead about who you are

• Some states require more, such as the true nature of contact

“Fraudulent Friending”: Sourcing Information

When an attorney asks a third party to “friend” a witness/party to the case to gain access to information posted on social media

• 2009 Philadelphia Bar, Opinion 2009-02: Third party friended a witness, only stated truthful things about himself (name, city, etc.) but left out the fact that he was associated with the attorney. Found this to be deceptive because it omitted a material fact.

• Disciplinary Counsel v. Brockler (2016): Prosecutor handling a murder case listened to recorded conversations between the accused and his girlfriend, heard them fighting. He created a Facebook profile and pretended to be mistress of the accused. He attempted to pit them against each other. He was fired, suspended from practice for 1 year.

Disciplinary Counsel v. Brockler, 145 Ohio St.3d 270, 2016-Ohio-657; “Opinion 2009-02” THE PHILADELPHIA BAR ASSOCIATION PROFESSIONAL GUIDANCE COMMITTEE (March 2009) available at http://www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/Contents/WebServerResources/CMSResources/Opinion_2009-2.pdf.

Direct “Friending”: Sourcing InformationWhen an attorney uses a personal social media profile to friend a party/witness

• Bar Association of the City of New York Committee on Professional Ethics: an attorney or the attorney’s agent may use his or her real name to “friend” an unrepresented individual in furtherance of obtaining information from that person’s social media page without disclosing the true motive. As long as the attorney used truthful information, the conduct was ethical

• Oregon State Bar: A request for access to nonpublic information from an unrepresented individual does not establish any transparent ethical transgressions. This places the burden on the account holder to appropriately filter “friend” requests.

“Formal Opinion 2010-2” THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK COMMITTEE ON PROFESSIONAL ETHICS (2010), available at http://www.nycbar.org/pdf/report/uploads/20071997-FormalOpinion2010-2.pdf. “Formal Opinion No 2013-189, Accession Information about Third Parties through a Social Networking Website” OREGON STATE BAR (Feb. 2013), available at https://www.osbar.org/_docs/ethics/2013-189.pdf.

Direct “Friending”: Sourcing Information

• In the Matter of Eric Gamble, No. 112, 037 (Dec. 5, 2014) (Supreme Court of Kansas): Suspended from practice for 6 months for “engaging in conduct prejudicial to the administration of justice,” “engaging in conduct that adversely reflects on the lawyer’s fitness to practice law” (by bullying the opposing party), and knowingly making “a false statement of material fact or law to a third person.”

“Friending”: ABA Model Rules

• An attorney must disclose his or her true identity; must not make misrepresentations or direct others to do so and when representing a client, must not communicate about the subject of that representation with another person the lawyer knows has representation. A request is presumptively proper if the true identity of the lawyer and the reason for the request are disclosed.”

Saleel V. Sabnis, “Attorney Ethics in the Age of Social Media” AMERICAN BAR ASSOCIATION (June 8, 2016), available at http://apps.americanbar.org/litigation/committees/professional/articles/spring2016-0616-attorney-ethics-age-social-media.html.

Spoliation of Evidence

• Can you advise your clients to change their privacy settings?

• Can you advise your clients to “clean up” their accounts generally?

• Can you advise your clients to delete posts specifically?

• Can you advise your clients to delete or deactivate their accounts?

Spoliation of Evidence: Ethical Issues

• ABA Model Rules of Professional Conduct implicated in social media as it relates to spoliation of evidence:

• Rule 3.4 Fairness to Opposing Party and Counsel:• A lawyer shall not:

• (a) unlawfully obstruct another party’s access to evidence’ unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act.

Spoliation of Evidence: Case Law

• Allied Concrete Co. v. 736 S.E. 2d 699 (Vo. 2013): Attorney agreed to a 5 year suspension for misconduct; the attorney was fined $542,000 and the client was fined $180,000.

• Gatto v. United Air Lines, Inc., 2013 U.S. Dist. LEXIS 41909 (D.N.J. Mar. 25, 2013): The court held that the plaintiff engaged in spoliation by deleting his Facebook profile, thereby entitling defendants to an adverse inference instruction at trial.

Spoliation of Evidence:State Ethics Board Decisions

• Philadelphia Bar Professional Guideline Committee, Opinion 2014-5: An attorney must take reasonable steps to preserve and produce what is on a client’s social media page. An attorney must play as active and ongoing role in a preservation plan, including sending preservation mandates in writing to the client and to other nonparties if necessary.

• Professional Ethics of the Florida Bar, Opinion 14-1 (June 25, 2015): “A personal injury lawyer may advise a client pre-litigation to change privacy settings on the client’s social media pages so that they are not publicly accessible. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, the lawyer also may advise that a client remove information relevant to the foreseeable proceeding from social media pages as long as the social media information or data is preserved.”

“Opinion 2014-5” THE PHILADELPHIA BAR ASSOCIATION PROFESSIONAL GUIDANCE COMMITTEE (July 2014), available athttps://www.philadelphiabar.org/WebObjects/PBAReadOnly.woa/Contents/WebServerResources/CMSResources/Opinion2014-5Final.pdf; “Professional Ethics of the Florida Bar, Opinion 14-1” THE FLORIDA BAR (June 25, 2015), available at https://www.floridabar.org/tfb/tfbetopin.nsf/SearchView/ETHICS,+OPINION+14-1?opendocument.

Spoliation of Evidence:State Ethics Board Decisions

• New York County Lawyers Association, Opinion 745: An attorney may advise clients to keep their social media privacy settings turned on or maximized and may advise clients as to what should or should not be posted on public and/or private pages, consistent with the principles stated above. Provided that there is no violation of the rules of substantive law pertaining to the preservation and/or spoliation of evidence, an attorney may offer advice as to what may be kept on ‘private’ social media pages, and what may be ‘taken down’ or removed.

• North Carolina State Bar 2014 Formal Ethics Opinion 5 (2015): If removing postings does not constitute spoliation and is not otherwise illegal, or the removal is done in compliance with the rules and law on preservation and spoliation of evidence, the lawyer may instruct the client to remove existing postings on social media

“NYCLA Ethics Opinion 745” NEW YORK COUNTY LAWYER’S ASSOCIATION (July 2, 2013) available at http://pospislaw.com/wp-content/uploads/2013/07/NYCLA-Ethics-Opn-745.pdf.

Spoliation of Evidence: ABA Guidance

• Don’t tell them to delete, but suggest changing privacy settings:

• “But if outright spoliation is one extreme, there are options that are feasible to implement within the parameters of ethical conduct. For example, attorneys may instruct clients to control their privacy settings to limit what is deemed open for public consumption. That said, nothing can prevent an adversary from seeking a court order unlocking the subject account if the discovery request is narrowly tailored.”

Saleel V. Sabnis, “Attorney Ethics in the Age of Social Media” AMERICAN BAR ASSOCIATION (June 8, 2016), available at http://apps.americanbar.org/litigation/committees/professional/articles/spring2016-0616-attorney-ethics-age-social-media.html.

Spoliation of Evidence: Discovery

• Thompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012): There must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence as it relates to the plaintiff’s Facebook page.

• Topp v. New York State Urban Dev. Corp., 958 N.Y.S. 2d 392, 393 (N.Y. App. Div. 2013) To warrant discovery, defendant must establish a factual predicate for their request by identifying relevant information in plaintiff’s Facebook account.

Admissibility of Social Media Evidence

• Guidance from the ABA indicates admissibility turns on authentication:• Party must show that the evidence is relevant, authenticate it, address issues of

unfair prejudice and probative value, and address hearsay, and demonstrate that it conforms to the best evidence rule.

• Must also be deemed relevant under FRE 401 (any tendency to make a fact more or less probable.

• People v. Valdez, 201 Cal. App. 4th 1429 (Cal. App. 4th Dist. .2011): The court held that a reasonable trier of fact could conclude that the social media profile belonged to the defendant because of the proven ability to upload or manipulate page content.

Joshua Gilliland, “iWitness: The Admissibility of Social Media Evidence,” THE AMERICAN BAR ASSOCIATION (Winter 2013), available athttp://www.americanbar.org/publications/litigation_journal/2012_13/winter/the_admissibility_social_media_evidence.html

Today’s Agenda

The Statistics of Social Media Use

Social Media and the Law: Ethics, Admissibility, and Strategy

Social Media Use in Practice

Possible Violations of Probation/After Care

• Possession of a firearm/“other dangerous weapon”

• Failure to obtain permission before leaving the state

• Use/Possession of narcotics, other controlled substances, or related paraphernalia

• Frequenting places where controlled substances are illegally sold, used, distributed, or administered

• Knowingly associating with “negative peers” or members of an organized street gang

• The “catch-all” of failure to follow specific instructions

Justin Bieber’s Probation Revocation Hearing

#8- Failure to obtain permission of your aftercare specialist before leaving the state

#11- Use or possession of narcotics or other controlled substances in any form, or any paraphernalia related to those substances

#15- Failure to follow any specific instructions provided by your aftercare specialist, specifically: No new tattoos

#8- Failure to obtain permission of your aftercare specialist before leaving the state

#16- Failure to comply with the following additional conditions of release: No negative peer association

#11- Use or possession of narcotics or other controlled

substances in any form, or any paraphernalia related to those

substances

#16- Failure to comply with the following additional conditions of release: No negative peer association

#13- Knowingly associated with other persons on aftercare release, parole or mandatory supervised release, or knowingly associating with persons who are

members of an organized street gang

#16- Failure to comply with the following additional conditions of release: No negative peer association

#12- Frequenting places where controlled substances are illegally sold, used, distributed or administered.

#11- Use or possession of narcotics or other controlled substances in any form, or any paraphernalia related to those substances

#2- Possession of a firearm or other dangerous weapon

#1- Violation of any criminal statute

Luckily, Justin Bieber was NOT subject to the terms and conditions of juvenile probation

…or was he?

Today’s Takeaways

• As social media usage grows, privacy lessens, and attorneys must stay apprised of changes to their clients’ communication patterns

• Consider whether the conduct conforms to the MPRC before interacting with clients or other parties on social media

• Advise clients to tread carefully online:• Avoid posting evidence of criminal activity or violations of institutional conditions (school,

court, programs, etc.)• Avoid posting anything that would hinder applications (job, college, background checks)• Suggest clients adjust their privacy settings and only accept requests from people they know