Social Media Law

Criminal Defense and Social Media

Facebook, MySpace, Social Media

Facebook, Twitter, MySpace, Social Media

Tampa Criminal Defense

“We should be asking every client if they have a social network account, and if so, to cease and desist using it immediately.”


I have seen reports of a news article in the National Law Journal (NLJ) suggesting that people use information about clients on Facebook and MySpace as mitigating evidence. One Federal Defense Attorney suggested, “We should be asking every client if they have a social network account, and if so, to cease and desist using it immediately.”

 

The defense attorney also suggested, “It is also a good idea, if they have one of these accounts, to get access to it, just as you would get school, psych and medical records. You may learn something about the client that he didn’t tell you, which could give a good lead for other mitigation, or alert you to potentially damaging info that you may need to address.”

 

Finally an experienced federal defense attorney noted, “The [NLJ] article’s suggestion that defendants use Facebook as a “sentencing advocacy tool” by contacting all of their “friends” seems nothing short of reckless.” The attorney continued, “[T]here is arguably little value to the positive comments posted by 1000 friends who don’t really know the client either, and probably have gotten their facts from the client. Having a client post anything about his or her case anywhere is ill-advised as that information could be used against the client by the probation office or prosecutors if a friend provides it to them.

I agree with our source.

Facebook Liability

 

Facebook Civil Lawsuit Libel

Parents held liable for children’s facebook activity? #facebook #lawsuit #libel

A court of appeals has just put parents on the hot seat for libel when they ruled parents can be held accountable for a child’s activities on the social media site facebook. The distinction the court made centered upon the parent’s failure to remove or investigate the activity, even though school officials had disciplined the student. #Lawsuit #facebook #libel

“parents are not held responsible for the acts of their children, but instead for inadequately controlling their children.”

Liability arose when the adults did not tell the kid to delete the page and made no effort to determine whether the false and offensive information allegedly posted by the child could be corrected, deleted, or retracted. The Court found, “Parents may be held directly liable, however, for their own negligence in failing to supervise or control their child with regard to conduct which poses an unreasonable risk of harming others.”

Important: Once aware of the activity, parents should investigate and take corrective action.

 

Under Florida law parents are already strictly liable for the actions of minor children in operating automobiles says our source, Board Certified Civil Trial Lawyer, Alan Wagner of Tampa, Florida. Florida law also provides for criminal liability of parents for failing to have children attend school. Liability can also arise from storing or leaving a loaded firearm within easy access to a child. The Stetson Law Review has published an article on parental responsibility statutes. The legal scholar noted “[U]nder parental responsibility statutes, parents are not held responsible for the acts of their children, but instead for inadequately controlling their children.”

Alleged Facts on facebook Libel Lawsuit Case

 

Here are the facts, straight from the Court with the names of the parties deleted. ” In early May 2011, [XXXXX], who was 13 years old, and his friend, [YYYYY], agreed to have some fun at a classmate’s expense by creating a fake Facebook page for that person. [XXXXX] selected [ZZZZZ], a fellow seventh-grader, as their target, and [YYYYY] agreed. [YYYYY] , posing as ZZZZZ, created a Yahoo e-mail account to use to create a new Facebook account, and gave that information to [XXXXX]. On May 4, using a computer supplied by his parents for his use and the family Internet account, [XXXXX] posed as [ZZZZZ] to create a new Facebook account, using the Yahoo e-mail address and the password[YYYYY] supplied. For the profile photo, [XXXXX] used a photo that he had taken of [ZZZZZ] at school, after altering it with a “Fat Face” application. “

“The unauthorized profile and page remained accessible to Facebook users until Facebook officials deactivated the account on April 21, 2012, not long after the [alleged victim’s]  filed their lawsuit on April 3, 2012. During the 11 months the unauthorized profile and page could be viewed, the [parents] made no attempt to view the unauthorized page, and they took no action to determine the content of the false, profane, and ethnically offensive information that [the child] was charged with electronically distributing. “

Complete Opinion of the Court Finding Facebook Parent Liable

Video of Law School Professor and W.F. Casey Ebsary Jr on Facebook Liability Issue

 

Facebook Personal Information Disclosures in Florida Courts

 

Court Order, Discovery, Facebook, subpoena, account information, Fla. R. Civ. P. 1.280(b)(1)

Facebook, Subpoena, Fla. R. Civ. P. 1.280(b)(1)

Court Order Was Improper

What happens when employers get access to your Facebook profile? This seems to occur when disclosure is a condition of employment or part of the job interview process. Arguably, this is with consent.


What happens when an opponent in court tries to force the enemy to grant access to a Facebook page or social graph? This can occur when a Court Order directs a reluctant person to disclose their online lives. When police or prosecutors want records from social media websites like Facebook, they need only comply with this procedure and get an appropriate Court Order. When private parties want information the process is similar. You can review your own Facebook information to see what is found in your account information:  How can I download my information from Facebook?


Facebook says, “We work with law enforcement where appropriate and to the extent required by law . . . .”


 

You may wonder; Does Facebook tell you that someone else is trying to get your account information? The answer is not always. The company tells us, “Facebook may notify users before responding to legal process as permitted by law.” See https://www.facebook.com/help/473784375984502 . The exception occurs when certain laws allow companies to respond to subpoenas in secrecy.

 


“Facebook may notify users before responding to legal process as permitted by law.”


Uncovering a witness’ past using social media is a common tactic. These disclosures are granted under Florida law’s fairly broad standard that the person must disclose relevant information or information reasonably likely to lead to relevant evidence. However, one court in Florida in a traffic accident case drew the line and called efforts by Defendants overly broad and probably amounted to a fishing expedition.


Facebook Court Order

One Florida Court ordered a user to produce information on:

  1. Counseling or psychological care
  2. Photos, “likes” or videos
  3. Relationships with her other children, both prior to, and following, the accident;
  4. Relationships with other family members,  boyfriends, husbands, and/or significant others,  both prior to, and following the accident;
  5. Mental health, stress complaints, alcohol use  or other substance use, both prior to and after,  the accident;
  6. Postings relating to any  lawsuit filed

Case Ruling:

“Under the basic principles for evaluating discovery in Florida, the party seeking discovery must establish that it is (1) relevant to the case’s subject matter, and (2) admissible in court or reasonably calculated to lead to evidence that is admissible in court. Fla. R. Civ. P. 1.280(b)(1); Langston, 655 So. 2d at 94. We agree . . . Defendants have not met this burden as to the requested discovery.”

 


Why did this Court decide the Facebook information was not relevant?

The court observed, “the requested discovery constitutes a fishing expedition. The defendant’s attorney stated, “These are all things that we would like to look under the hood, so to speak, and figure out whether that’s even a theory worth exploring.” Even the magistrate acknowledged that relevancy might be a problem, noting that “95 percent, or 99 percent of this may not be relevant.”
Source: https://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2014/February/February%2005,%202014/2D13-3205.pdf

Five Legal Questions Answered Here:

What happens when an opponent in court tries to force the enemy to grant access to a Facebook page or social graph?

What happens when employers get access to your Facebook profile?

Does Facebook tell you that someone else is trying to get your account information?

How can I download my information from Facebook?

Does Facebook tell you that someone else is trying to get your account information?

Feds on Facebook | Social Networking and Law Enforcement Tactics

W.F. “Casey” Ebsary, Jr.

Tampa Criminal Defense Expert, W.F. ”Casey” Ebsary, Jr., has suspected that cops use “fake identities” to “trick” users into accepting a government official as friend or otherwise provide information to the government. We believed that the feds watch Facebook, MySpace, Twitter, Flickr and other online social media and use the information for investigative (criminal or otherwise) or data gathering purposes.

A recent public records request by the EFF sought more information including:

 

Guides, manuals, policy statements, memoranda, presentations, or other materials explaining how government agents should collect information on social networking websites: how or when government agents may collect information through social networking websites; procedures government agents must follow to collect information through social networking websites; agreements with social-networking companies: using any visualization programs, data analysis programs or tools used to analyze data gathered from social networks; purchase orders for any visualization programs,data analysis programs or tools used to analyze data gathered from social networks; describing how information collected from social-networking websites is retained in government databases or shared with other government agencies.
How to be a Fed on Facebook
18 U.S.C. § 2702, Computer Crime and Intellectual Property Section, ECPA, EFF, Electronic Communications Privacy Act, Facebook, LinkedIn, Twitter, Yahoo
Prosecutor’s Obtaining Evidence From Social Networks
Training Materials

The feds produced a 33 page record. We just took a look at it and it appears to be a training program. The document was titled, “Obtaining and Using Evidence Social Networking Sites from Facebook, MySpace, Linkedin, and More.” It was authored by John Lynch, Deputy Chief, Computer Crime and Jenny Ellickson, Trial Attorney of the  Computer Crime and Intellectual Property Section.

The outline covered an Introduction to Social Networking Sites and an Overview of Key Social Networking Sites. Not suprisingly, buried in the training materials is the question: Why go undercover on Facebook, MySpace, etc? The answer in short succinct bullet points was to “Communicate with suspects / targets” and “Gain access to non-public info” and to “Map social relationships/networks.” The training session begins:  “Most social-networking sites allow users to:

•    Create personal profiles
•    Write status updates or blog entries
•    Post photographs, videos, and audio clips
•    Send and receive private messages
•    Link to the pages of others (i.e., “friends”)”

How can Law Enforcement Obtain data from these sites?

•    Some info may be public
•    Use ECPA to get info from providers
•    Undercover operations ”

The ECPA is the Electronic Communications Privacy Act (ECPA) and it sets out the provisions for access, use, disclosure, interception and privacy protections of electronic communications. The feds use this information to:

•  Reveal personal communications
•  Establish motives and personal relationships
•  Provide location information
•  Prove and disprove alibis
•  Establish crime or criminal enterprise

How do the Feds get information from Facebook?

Since the Facebook Data is organized by user ID or group ID they use these resources: Data productions using the Fed’s Law Enforcement Guide includes Neoprint, Photoprint, User Contact Info, Group Contact Info, and IP Logs. The feds noted that “Facebook has other data available.” and that Facebook is “Often cooperative with emergency requests.” That means that the feds can claim urgency and shourtcut the time frames that are usually present when legal production of this information is sought.

What do the Feds Think about MySpace?

The feds noted that MySpace is owned by Fox Interactive Media and was the most popular Social Network; was passed by Facebook in 2008; True names are less encouraged than Facebook. Feds are noting there is Messaging through messages, chat, friend updates. MySpace has a Young user base,has a history of child safety concerns, and Privacy is currently less granular than Facebook. Cybercrime defense attorney notes that Granular Privacy Controls in social networks allow authorization profiles – the user gets to decide what data to show to other friends in the network.

How do the Feds Get Info From MySpace?

The Feds know that many profiles have public content and thatData is organized by Friend ID. Notably, MySpace requires a search warrant for private messages or bulletins that are less than 181 days old. MySpace considers friend lists to be stored content and there are fixed Data retention times for User information and stored files. MySpace retains IP logs indefinitely and information for deleted accounts is kept for a year.

What the Feds believe about Twitter?

Twitter is the market leader in “micro-blogging.” Most Twitter multimedia is handled by 3d party links. Twitter allows both public or private updates. On Twitter Direct messages are private and the sender can delete these messages. the feds noted that short URLs used to serve malicious links and code.
How do the Feds Get Information from Twitter?

The good news for the Feds is that Most Twitter content is public and Private messages are kept until the user deletes them.

The bad news for the Feds is that Twitter only retains the first login IP, there is no user contact phone number, Twitter Will not preserve data without legal process, and Twitter has a stated policy of producing data only in response to legal process.

The Feds frequently use a 2702 request to short cut Search Warrant requirements. On the other hand, as of 2010, Yahoo has the following policy on 2702 requests from cybercrime investigators:

“Under 18 U.S.C. §§ 2702(b)(7) and 2702(c)(4) Yahoo! is permitted, but not required, to voluntarily disclose information, including contents of communications and customer records, to a federal, state, or local governmentalentity if Yahoo! believes in good faith that an emergency involving imminent danger of death or serious physical injury to any person requires such disclosure without delay.”

What about LinkedIn?

The feds use LinkedIn to identify experts and check the background of defense experts. The Privacy model is similar to Facebook and Profile information is not checked for reliability.

Federated Identity Issues Concern the Feds

The Feds note an upsurge in federated identity schemes. Social networking sites are increasingly adopting federated identity schemes such as OpenID, Facebook Connect. They write of concerns that Facebook, MySpace, Yahoo!, and Google authenticate identity and signin across platforms.

 

They give the following Example: A user can log in to a Facebook account using Google credentials. After a link is established between two accounts, Google will check and vouch for identity of its user. Authentication information split from activity information. In turn, a Facebook login may be used to authenticate.

 

The feds note that “If attribution is necessary, must determine identity provider – not simply the domain.”

Terms of Service TOS and Privacy Policies

The Federal Agent Training materials we reviewed after the EFF Freedom of Information Act FOIA Request noted that Social networks have extensive terms of service and privacy policies, most permit emergency disclosures to Law Enforcement. All specify exceptions to respond to legal process and protect service against fraud/damage

 

U.S. v. Drew addressed the failure to follow TOS and whether access to a network was unauthorized under 1030? Drew addresses whether allowing a violation of a website’s Terms of Service to constitute an intentional access of a computer without authorization or exceeding authorization would “result in transforming section 1030(a)(2)(C) into an overwhelmingly overbroad enactment that would convert a multitude of otherwise innocent Internet users into misdemeanant criminals.”

Criminal Penalties for Law Enforcement Officers for Violating the Privacy Protection Act

The feds also are concerned about the growth of social networks and the questions it raises about the breadth of the PPA. This author notes that the Privacy Protection Act provides for criminal penalties against federal officials who willfully disclose a record in violation of the Act, 5 U.S.C. § 552a(i)(1).

Busted on Social Media – Police Video

facebook, youtube, social media, crime, busted, criminal defense, criminal defense attorney, witnesses

Criminal Defense Attorney Needed

Busted on Social Media

Gang busted on Social Media. According to police: The gangs were taunting on Facebook, bragging about shootings online. The gangs allegedly used social media to intimidate witnesses and others, calling them snitches and stating that if they cooperated with law enforcement  they would be “taken care of.” Possible 25 year penalties for the 25 that were busted using social media. Social media led to their demise, as cops monitored and befriended the suspects.


 


Previous  Facebook Articles on Centrallaw

Need To Know Facebook Personal Information Disclosures!

www.centrallaw.net/2014/07/facebook-account-information-court.html
Facebook Circuit Trial Court Order was too intrusive says FloridaCourt

Feds on Facebook | Social …

www.centrallaw.net/2010/10/criminal-defense-attorney-feds-on.html
We believed that the feds watch Facebook, MySpace, Twitter, Flickr and

Courts and Social Media | facebook

www.centrallaw.net/2010/10/criminal-defense-and-social-media.html
Finally an experienced federal defense attorney noted, “The [NLJ] article’s suggestion that defendants use Facebook as a sentencing resource ..

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