social media

SCOTUS Strikes Down North Carolina Social Media Restriction for Registered Sex Offenders

June 26, 2017 by Steven Kinnunen Leave a Comment

In Packingham v. North Carolina, the United States Supreme Court invalidated a North Carolina statute prohibiting certain social media use by registered sex offenders. The decision is widely regarded as the Court’s acknowledgment that social media use is a practical necessity in 21st-century American society as well as a platform for the free expression protected by the First Amendment.

At the time of his sex offense in 2002, Lester Packingham was a 21-year-old college student who was convicted of indecent liberties with a child — he had sex with a 13-year-old girl. Packingham had no prior criminal record, and received a suspended sentence of 10 to 12 months of incarceration with a 24-month period of supervised release. He was, however, required to register as a sex offender for at least ten years.

In 2008, about halfway through Packingham’s minimum registration period, North Carolina enacted its social media restrictions for sex offenders. The new statute made it a felony for a registered sex offender, if aware that minors might use them as well, to use social media websites with the following characteristics: 1) generating revenue via advertising or otherwise, 2) facilitating contact between users, 3) allowing users to create profiles, and 4) providing ways for users to communicate with each other through message boards, chatrooms, e-mail, or other means. More than 1,100 people have been charged with violating this statute in North Carolina.

It is not known whether Packingham was specifically advised of this legislative action. He had completed his probation several years previously, and he apparently led his life as a law-abiding citizen until he was stopped and cited for a traffic violation in 2010. When he showed up for the hearing, he discovered to his delight that the charge had already been dismissed. So, there was nothing else to do but post this triumph on Facebook!

Unbeknownst to Packingham, a local police officer was monitoring the social media accounts of registered sex offenders and obtained a warrant to search Packingham’s computer. It was discovered that Packingham was in at least technical violation of North Carolina’s new sex offender social media restrictions, and he was indicted and charged accordingly.

Packingham challenged the prosecution on First Amendment grounds as an unreasonable restriction on his free speech rights. The trial court rejected the challenge, the state court of appeals upheld it, and the North Carolina supreme court rejected the First Amendment challenge again, upholding the state law as “constitutional in all respects.” Packingham was ultimately convicted and given a suspended sentence. The U.S. Supreme Court granted his petition for review, and unanimously struck down the North Carolina statute.

Justice Kennedy wrote the five-justice majority opinion, which essentially points out that so many websites offer the features North Carolina prohibits for sex offenders that the statute represented an unreasonable restriction on free expression rights. Justice Kennedy observed that the statute would prohibit a registered sex offender from visiting Amazon, WebMD, or the Washington Post online. The majority opinion specifically protected the ability of states to restrict sex offender Internet use more narrowly, thereby balancing the state interest in protecting minors with the interest of past offenders in legitimate Internet use.

One of the more interesting aspects of the Packingham decision is found in Justice Alito’s concurring opinion, joined by Chief Justice Roberts and Justice Thomas. While Justice Alito agreed with the result, he criticized the majority for its “undisciplined dicta” in the form of “musings that seem to equate the entirety of the internet with public streets and parks.” Then Justice Alito indulged in some undisciplined dicta of his own:

Repeat sex offenders pose an especially grave risk to children. “When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.” (Citations omitted.)

This is simply not true, according to the Washington Post Fact Checker. Sex offenders are actually among the least likely felons to reoffend with a similar crime. Only 5.6 percent of those convicted of rape or sexual assault were arrested for another sex offense within five years after release, according to a 2014 Bureau of Justice Statistics report. Far more likely candidates for recidivism on similar charges are persons convicted of drug crimes (51.2 percent), larceny or car theft (41.4 percent) assault (34.4 percent), or fraud or forgery (29.7 percent).

If Justice Alito had used his own unrestricted access to the Internet to find this data, perhaps he would not have made such an undisciplined and ill-informed statement in his concurring opinion.

Attorneys Discuss Legal Ethics of Social Media Evidence

August 4, 2011 by Archives Leave a Comment

But before the hegemonic rise of social media, lawyers couldn’t use all evidence available to them simply because it existed. There are ethical rules that attorneys must abide by, and that doesn’t change simply because social media marks new and untested territory. Writing for the New York Law Journal, Christopher Boehning and Daniel Toal point to three recent ethics decisions that may shed a light on the future of social media use for lawyers. These ethical quandaries include the debate over social media use among jurors, propriety issues surrounding social media, and the prospect of “friending” potential witnesses.

On the topic of juror monitoring, for example, the New York County Lawyers’ Association wrote an opinion affirming that “passive monitoring of jurors, such as viewing a publicly available blog or Facebook page,” is ethical conduct, as long as the lawyer doesn’t extend this reach to direct or even indirect social contact, meaning likely that lawyers cannot friend or follow current or potential jurors on Facebook, Twitter, and LinkedIn.

The New York City Bar is more accepting when it comes to the prospect of contacting potential witnesses via social networks. An attorney can, they ruled, “use her real name and profile to send a ‘friend request’ to obtain information from an unrepresented person’s social networking website without also disclosing the reasons for making the request.” NYC attorneys cannot, however, contact witnesses under a false name or create a profile “tailed to the background and interests” of the witness in order to gain information.

There’s another important social media and law dilemma that goes unmentioned in Boehning and Toal’s article: the question of whether lawyers should be permitted to connect with judges through social media. So far, this question has been monitored on a state-by-state basis, with little input from the American Bar Association (although, the ABA says it is weighing the issue carefully). Here in California, judges and lawyers don’t have much to work with, aside from a 2010 California Judges Association opinion, which warns judges to be careful. “In short, notwithstanding the explosion of participation in online social networking sites, judges should carefully weigh whether the benefit of their participation is worth all the attendant risks,” the opinion concludes.

Of course, that doesn’t mean lawyers have ceased debating the subject. “It’s a poor idea for judges to participate in social media because you don’t know who’s reading what you post,” says San Jose federal Judge Jeremy Fogel. Northern District Magistrate Judge Paul Grewal takes the opposite approach, and accepts social media as mostly harmless. “It allows you to personalize yourself and reveal facets of your life and personality to a broader range of people,” he says. “Judges, I think, are at an unfortunate disadvantage because we are somewhat constrained in taking advantage of reasons to be on a social network.”

Investigation into the defendant or plaintiff’s social networking profiles has notoriously become a part of divorce law and employment law. In the past, lawyers have been caught trolling a spouse’s profile for an indication of adultery, and employers have caught employees betraying their false use of sick days. Everyone should be careful when using social networks like Facebook and Twitter, understanding that nothing you post online is ever fully private. But that doesn’t mean that lawyers have full reign to collect evidence without regulations.

Photo Credit: GJELblogger

Role of Technology Debated in Distracted Driving Accidents

July 21, 2011 by Archives Leave a Comment

If you drive, it’s likely that you’ve talked, texted, or typed on your smart phone while behind the wheel, and it’s even more likely that you’ve seen others drive distracted. But despite the overwhelming prevalence of technology, a new report by GMAC Insurance suggests that people are starting to get the message about the dangers of distracted driving. In fact, nearly 75 percent of teenagers, the demographic most likely to text and drive, have said they have stopped using their cell phones in the car altogether. The report credits awareness programs, state laws prohibiting distracted driving, and technology that have made cell phones safer.

Despite the reduction in distracted driving rates, though, about 50 percent of total drivers admit to using their cell phones behind the wheel. And as distracted driving causes nearly 6,000 car accident deaths and 500,000 injuries each year, it’s clear that state and national officials will need to get much tougher on distracted drivers in order to make a serious dent in the dangerous practice.

A new report by the Governors Highway Safety Administration notes that distracted driving is a leading cause in 25 percent of total car accidents nationwide, but questions whether state cell phone bans have contributed to a reduction in these accidents. That’s likely because many state laws against distracted driving list it as a secondary offense, meaning the driver must be pulled over for another infraction in order to get a citation for texting while driving. Many states have also implemented laws that only target the use of hand held phones. That means that drivers can continue to carry on conversations with their cell phones, which the National Highway Transportation Safety Administration has deemed nearly as dangerous as texting and driving.

To address this problem, safety advocates have said that police must get stricter on with multi-tasking drivers, and state laws should make it more difficult, not easier, to drive distracted. One example of an appropriate technology solution is a smart phone application that blocks incoming calls and text messages while the car is in motion, and sends an auto-reply that the driver will respond when he or she reaches the destination safely. Instead, many car companies and cell phone providers have jumped out ahead of the issue with dangerous distracted driving technologies that actually make it easier to talk or text while zooming down the highway.

OnStar has developed a clear example of technology that should be avoided: a voice-activated system that would update the driver’s Facebook status while in transit. And Ford has been an advocate for distracted driving laws as long as they include a loophole that allows hand-free tech devices – like their Ford Focus My Ford Touch system, which New York Times Personal Technology Editor Sam Grobart deemed even more distracting. Though they appear safe, tech-based distracted driving solutions should so far be avoided. “Studies show hands-free devices provide no safety benefit,” writes the anti-distracted driving group Focus Driven on its webpage. “It’s the conversation, not the device, that creates the danger.”

So while it’s incredibly tempting to text a friend, check email, or even talk on the phone while driving on city streets or highways, remember that you’re likely unaware of how distracting these innocent actions can be. No one thinks that they will become an accident statistic, but everyone can take steps to assure that their actions don’t lead to dangerous driving decisions. So instead of relying on technology to keep you safe in your car, putting down the phone is the best way to stay safe.

Visit Secretary of Transportation Ray LaHood’s Faces of Distracted Driving webpage for some true, tragic stories about the impact of distracted driving on real families across the country.

Photo credit: Lord Jim

Google Plus Advice For Lawyers

July 11, 2011 by Archives Leave a Comment

Just weeks ago, Google launched its response to social media giant Facebook, and speculation has already soared. Some have predicted that the Google Plus Project could be a “Facebook killer,” while others say it’ll fail like the search giant’s past social flops, Buzz and Wave. It’s most likely that Google+ will fall somewhere between those two fates, but what’s certain is that lawyers who have embraced other social media platforms are sure to join. To help out with the move to Google+ some of the best legal blogs out there have offered best practices advice. Take a look, and let me know what you’ve noticed in the comments section.

Lawyerist: Google Plus Offers Better Sharing

For Lawyerist.com, legal marketing consultant Karin Conroy writes that Google+ should benefit from a strong connection to accounts users already have with Google owned products like YouTube, Gmail, and Picassa, creating endless sharing possibilities. In addition to making sharing easier, Google has figured out how to enable users to limit what information they want to share with specific groups of friends, with the “Circles” function. “Whereas with Facebook and Twitter all connections and content are equal, here your content will be targeted and then filtered to the appropriate audience,” writes Conroy. “That way you can post about your Saturday night activities without your boss seeing all the details.”

After discussing the benefits of Google Plus for professionals, Conroy tackles the two major obstacles the social media newcomer will have to address in order to succeed: being “different enough” from Facebook, and being the anti-Wave, Google’s past failed social experiment. Despite a profile page that “bears a striking resemblance to Facebook,” Conroy writes that Google+ has developed a full interface that passes the originality test. As for Wave, which “none of us could ever wrap our heads around how to make it work, Google+ has clear benefits and obvious functionality,” writes Conroy.

Adrian Lurssen: Professional+?

JD Supra co-founder Adrian Lurssen asks whether Google+ is an appropriate professional setting for lawyers, separating the litmus test into three standards: connections, communication, and reputation. Lurssen notes that there’s no doubt that Google+ will be teeming with connections once the word gets out, and points to an early study suggesting that it may be the fastest growing online platform ever, with 20 million users expected by the end of the week. Lurssen gives Google+ an anemic 7 of 10 rating for connections, likely because there just aren’t too many lawyers on there yet.

Lurssen is much more optimistic about Google+’s communication potential, which he rates 11 out of 10. “The stream of updates is so spectacularly real-time that in the early days I equated it to freebasing lab-grade cocaine,” he writes. “Might feel amazing at the time, but you aren’t sure your body is going to survive.” Lurssen adds that in the midst of commenting on updates, he’s been bumped by a deluge of activity, knocking him off the stream. So in this sense, the communication success of Google+ could end up as a negative.

Lurssen concludes that when it comes to professional development, LinkedIn will likely remain the community standard. But Google+ is clearly a player, and the outreach potential alone is sure to attract lawyers as the word continues to spread.

Kevin O’Keefe: Be Patient

In his blog post for Real Lawyers Have Blogs, Kevin O’Keefe writes that Google+ is clearly here to stay, but that “Facebook is unlikely to go the way of MySpace.” O’Keefe notes that over time, social media platforms have a way of evolving and becoming something unique for specific groups of people. So the Google+ benefits O’Keefe mentions, like its incredibly intuitive usability, will help the social media newcomer remain popular and attract new users until the main utility of Google+ becomes more clear in the coming months and years.

O’Keefe also notes that lawyers may be reluctant to dive in to Google+ as opposed to Twitter and Facebook because their base of potential clients has not yet immigrated. But he adds that “incluencers and amplifiers,” a group that “may be more important than networking with clients/prospective clients/referral sources” are already on Google+, and there’s a clear benefit to building your profile and making connections early. “Though there is a heavy population of Tech/Media/Mar-com people now on Google Plus,” he writes, “you can expect early adopters in every vertical and profession on Google Plus very soon, if they are not already.”

FutureLawyer: Mind the Googleverse

Over at FutureLawyer, “Future Technology for the Lawyer of Today,” the choice boils down to applications, and the blog states that Google+ simply does more than Facebook. “Those of us who live in the Googleverse have used Facebook like a separate part of our computing lives, a diversion from our Google computing,” Future Lawyer writes. “Now, we can integrate that social and professional contact experience and conversation into the Googleverse.”

In another post, FutureLawyer notes that Google+ gives the user far more options so that everyone can use their profile differently, but with equal success. This starts with privacy options, one reason that Google+ has been dubbed “the Anti-Facebook.” Google+ “allows you to decide what should be shared, and with whom; it gives you control over the third parties who have access to your data, and so on and so on.” It’s also important to note that Google’s privacy policy has promoted an “Opt-in security system, rather than the Facebook Opt-out (if you can figure out how) system.”

For the reasons described above (and more), FutureLawyer says opening a Google+ account is smart for lawyers, once they can get an invite. But there’s no question that Facebook, with 750 million users, continues to dominate the social media universe. So even if you’re going to open a Google+ account, writes FutureLawyer, keep your Facebook identity active… at least for now.

Legal Practice Pro: Network Effect

Over at Legal Practice Pro, Jay Fleischman has collected a set of resources explaining the many functions of Google+. As for his own take, Fleishman notes that whether Google+ is truly a “Facebook Killer,” or whether it flops, “it is likely to have an impact on the future of how we interact on the web.” That said, Fleischman isolates a key obstacle for Google+, which he calls the Network Effect. “If enough people join Plus and start using it then it could be fantastic, what with the ability to silo your contact groups and direct conversations to the right people.” This is a great point and gets to the heart of why I think Wave failed so spectacularly. A party is only as fun as the people who show up, and since no one could figure Wave out, no one showed up to the party. For this reason, Google may benefit from lifting its invitation-only status in order to get more people on Google+ and making connections.

Don’t Worry, No Hurry

Many individual lawyers are already hopping on Google+ as an alternative to Facebook. It’s important to note that Google has said that while Plus is developing a platform for businesses, the current product is designed for individuals only. “How users communicate with each other is different from how they communicate with brands,” said Google+ Product Manager Christian Oestlien. “The business experience we are creating should far exceed the consumer profile in terms of its usefulness to businesses.”

Social Media For Lawyers Still a Hot Topic in California

June 30, 2011 by Archives Leave a Comment

There’s no doubt that the stunning rise of social media has left an indelible impact on most professional industries. But few industries have been as troubled by ethical questions following the rise of social media platforms like Facebook and Twitter as the legal industry. Many lawyers embraced social media in their personal lives, but professional conduct has proven to be a completely different story, especially when it comes to connecting with other lawyers, or even judges. While the American Bar Association has not yet set clear guidelines for ethical social media use among lawyers, the issue has sparked a spirited debate here in California and throughout the country.

“Whereas before I was much more free to post about my family, my kids’ baseball games, where I was,” San Jose Federal Magistrate Judge Paul Grewal told the San Francisco Recorder, “as a judge you have to be a bit more restrained in sharing those types of personal events.” This closely follows the advice of the California Judges Association, which ruled in 2010 that judges should always be cautious online. “In short, notwithstanding the explosion of participation in online social networking sites,” the advisory reads, “judges should carefully weigh whether the benefit of their participation is worth all the attendant risks.”

Many judges, like San Jose Federal Judge Jeremy Fogel, think that even Grewal’s relatively modest approach to social media leads to ethical questions. “It’s a poor idea for judges to participate in social media because you don’t know who’s reading what you post,” he told the Recorder. “And even if you’re just a passive viewer, you’re probably hearing and seeing things that you shouldn’t.”

Over the past year, the ABA has been reviewing its client development guidelines for lawyers, and this week released a report which stopped short of implementing clear rules, but seemed to suggest that Judge Fogel’s concerns are unlikely. The report’s cover letter states that “the commission concluded that no new restrictions are necessary in this area, but that lawyers would benefit from more guidance on how to use new client development tools in a manner that is consistent with the profession’s core values.”

Still, many observers agree that preventing lawyers and judges from using social media could raise first amendment issues. “The social media platforms are stretching the ethical ideas way beyond what has been thought about before,” said legal ethics expert Diane Karpman in an interview. But, she adds, “Putting regulations on social media is a violation of freedom of speech.” Karpman’s first amendment concern is likely a primary reason why the ABA would steer of blocking lawyers from social media. And this is a good thing. If a lawyer wants to act unethically, he or she will find a way with or without the help of Facebook. So when it comes down to it, the main impact that social media will have on the legal profession will be to increase transparency and make it easier for consumers to interact more directly with their attorney.

So if you’re a lawyer or judge, don’t seat the online stuff. If you’re careful not to betray your clients by leaking confidential information or harm an ongoing lawsuit, then the chances are that you can navigate social media without accidentally acting unethically.

Photo Credit: GJELblogger