Misty VanHorn, a mother of two in Oklahoma, was arrested last month for alleged trafficking of minors on Facebook by offering her 10-month old and her 2 year-old for $4,000. According to the police report, VanHorn offered the kids several times on the social network — offering the 10-month old girl for $1,000, or a package deal with the two of them for $4,000. And she apparently had a taker. 

“Just come to Sallisaw, it’s only 30 minutes away and I’ll give you all of her stuff and let y’all have her forever for $1,000,” read VanHorn’s Facebook message to the Fort Smith woman, as unearthed in the police report by the Daily Dot.

Ironically, police believe VanHorn wanted the $1,000 to bail her boyfriend out of jail. Now she’s being held on a $40,000 bond. The children are in the custody of the state’s department of human services, which alerted the police in the first place.

It amazes me the things people will say and do on social media. Last year, I reported on a woman who was arrested for allegedly attempting to hire a hitman over Facebook to murder the father of her child. This is yet another example of how what you say on social media can (and will) be used against you.

The Rules of Evidence require that evidence must first be “authenticated” prior to be admitted at trial. It requires a showing that the evidence in question is what its proponent claims. In other words, it must be reliable and overcome any reasonable question that the evidence has been fabricated. 

Social media sites present unique challenges for authentication. Since social media profiles can be easily created by anyone with an email address and some spare time, questions often arise as to whether the social media profile offered into evidence is the actual profile of a party in litigation or whether a particular communication was sent by a party as opposed to someone else who may have had access to their profile. Based on the uncertainty of the reliability of someone’s purported social media profile, admitting social media content into evidence is not as easy as pointing to someone’s Facebook profile bearing their name and photograph to establish the identity of the individual associated with the social media account.

In an instance of what Judge Glenn T. Harrell Jr. of Maryland’s highest court has described as the “technological heebie jeebies,” several recent courts have required more, expressing concern with false profiles, account hacking, and “Photoshopping.”  Recent cases illustrate that litigants may use the indelible digital trail left by users of social media, their digital devices, or obtained directly from the social media provider to help authenticate social media evidence.

The classic case of disputing ownership of social media postings and messages were addresses in two recent cases: Griffin v. State, 19 A.3d 415 (Md. 2011) and State v. Eleck, 23 A.3d 818 (Conn. App. Ct. 2011). In these cases, courts were sympathetic to claims of falsely created accounts or “hacked” messages. The Griffin court held that “the date of birth of the creator and her visage in a photograph on the site” was insufficient to authenticate the purported owner’s authorship of a message. Similarly, Eleck held that authenticity was not established by “the fact that [the claimed author] held and managed the account.”

Nevertheless, as Eleck noted, “the circumstantial evidence that tends to authenticate a communication is somewhat unique to each medium”; both cases pointed to forensic examination of devices or validation by social media providers as potential means of authenticating such evidence. As use of these methods of authentication becomes more widespread, it seems likely that courts will not look favorably upon evidence put forth without forensic support.

At the same time, traditional means of authentication, such as the distinctive content of a statement, retain force in the world of social media. In Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012), Texas’s highest criminal court upheld a murder conviction that relied heavily on postings from several MySpace accounts attributed to the defendant—despite the lack of any forensic evidence or outside authentication. After describing in detail several dozen messages, photographs, and other details linking the profiles to the defendant, the court ruled that the remote possibility “that the [defendant] was the victim of some elaborate and ongoing conspiracy” went to the weight of the evidence, not its admissibility. The Tienda court did cite Griffin, however, for the suggestion that in future cases, proponents of social media evidence would be well advised to include extrinsic proof of authenticity.

While these cases begin to provide some clarity as to what courts may require to authenticate social media content, there is still no clear standard that has emerged across all jurisdictions. These cases simply represent the tip of the iceberg. The lesson that can be taken away from these cases is that, more likely than not, courts will require more information than simply the social media user’s name, profile picture, and date of birth to confirm the authenticity of the profile. The more information to support the inference that the social media content is of the user that it purports to be, the better.

The man, Richard Godbehere, posted the clip in February under the title “Let’s Go Driving, Drinking!” to LiveLeak, a video-sharing site where users can vote on and donate to videos they like.

Even so, he appeared surprised when police showed up at his house in Kapa’a, Hawaii, to arrest him on charges of consuming alcohol while operating a vehicle and driving without a license.

Social networks offer platforms for us to share everything on the Internet, from our relationship statuses to our political leanings and photos of our pets and children. But some people are discovering that what they share on Facebook, Twitter and other platforms constitutes evidence that can be used against them in a court of law.

“It’s like that old saying,” said professor Susan Rozelle, who teaches evidence and criminal law at Stetson University College of Law in Gulfport, Florida. “Don’t put anything on your Facebook page you wouldn’t tell your mother, or the local police department.”

What people say and do on social media can certainly be used against them in civil and criminal proceedings. While there are legal hurdles to introduce social media evidence in court, such as proving the evidence is “authentic” and not inadmissible hearsay, more and more courts are allowing social media evidence to make or break a party’s case (or, as we see here, provide the grounds for an arrest). 

The defendant in a murder trial accused of stabbing his girlfriend to death received clothes from his family to wear during trial. When Miami-Dade corrections officers lifted up the pieces for a routine inspection, his public defender snapped a photo of the defendant’s briefs with her cellphone. While on a break, the lawyer posted the photo on her personal Facebook page with a caption suggesting the client’s family believed the underwear was “proper attire for trial.”

Although her Facebook page is private and can only be viewed by her friends, somebody who saw the posting notified Miami-Dade Judge Leon Firtel, who declared a mistrial the Herald reported. The public defender was immediately fired.  A new trial date, with a new lawyer, has yet to be set.

This case serves as yet another reminder of how attorneys must use social media responsibly in their cases. I attended law school with the public defender in this case. This situation demonstrates that even bright and talented attorneys can derail a successful legal career in a moment of poor judgment. Law firms must continue to educate their attorneys, staff, and clients how social media can severely impact their cases and careers, both inside and outside the courtroom. 

Pierre Domville, a criminal defendant, moved to disqualify a trial judge and submitted an affidavit averring that the prosecutor handling the case and the trial judge are Facebook “friends.”  Domville further averred to believe that the judge could not “be fair and impartial,” and attributed adverse rulings to the judge’s Facebook relationship with the prosecutor. The trial judge denied the motion as “legally insufficient” and Domville appealed.

The Fourth District Court of Appeal quashed the trial court’s order denying Domville’s motion to disqualify in light of a recent Judicial Ethics Advisory Committee (JEAC) prohibiting such “friendships.” Florida Code of Judicial Conduct Canon 2B  states that “[a] judge shall not . . . convey or permit others to convey the impression that they are in a special position to influence the judge.” In JEAC Op. 2009-20 (Nov. 17, 2009), the Committee concluded that the Florida Code of Judicial Conduct precludes a judge from both adding lawyers who appear before the judge as “friends” on a social networking site and allowing such lawyers to add the judge as their “friend.” The Committee determined that a judge’s listing of a lawyer as a “friend” on the judge’s social networking page — “[t]o the extent that such identification is available for any other person to view” — would violate Florida Code of Judicial Conduct Canon 2B.

Specifically, the Committee concluded that when a judge lists a lawyer who appears before him as a “friend” on his social networking page this “reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.” The Committee emphasized that ”a judge’s activity on a social networking site may undermine confidence in the judge’s neutrality. Judges must be vigilant in monitoring their public conduct so as to avoid situations that will compromise the appearance of impartiality.”

Applying this JEAC advisory opinion to the allegations contained in Domville’s motion and affidavit, the appellate court held that Domville ”alleged facts that would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.” The Court therefore quashed the order denying disqualification of the trial judge and remand to the circuit court for further proceedings.

The aforementioned case is styled Pierre Domville v. Florida, case no. 4D12-556 (Fla. 4th DCA Sept. 5, 2012).

In part seven of Privacy v. Discovery: The Battle for Social Media Information, I analyze cases where courts have created unique solutions seeking to balance each party’s interest in privacy and discovery without setting precedent one way or the other:

In Barnes v. CUS Nashville LLC d/b/a Coyote Ugly Saloon, 2010 WL 2265668 *1 (M.D. Tenn. 2010), the defendant subpoenaed a slip-and-fall plaintiff and her friends’ Facebook pages for any messages or photographs discussing or depicting the plaintiff dancing atop the bar prior to her injuries.

When the parties could not reach an agreement on the scope of social media discovery, the judge created his own Facebook account solely for the case. In his chambers, he reviewed the photographs, captions and related comments. After providing the parties with the pictures that the judge deemed relevant to the case, including the metadata provided by Facebook, he stored the material under seal pending their use at trial.

The court in Gallion v. Gallion,  2011 WL 4953451 (Conn. Super. Ct. 2011), arrived at another unique solution when it ordered the lawyers representing a couple in a divorce proceeding to exchange passwords to their clients’ Facebook and dating website profiles. The court provided counsel with specific instructions to ensure each party would not obtain access to the other’s personal online information. This procedure allowed the lawyers to discover relevant information to support their claims without exposing the clients to the embarrassment of placing their entire profiles in the hands of their former spouses.

Barnes and Gallion illustrate the blurred line separating privacy and discovery. In Barnes, the judge took it upon himself to sort through the social media site content to ensure the parties’ access to relevant information.While this method provided an unbiased review and distribution of information, it precluded the lawyers from exercising their own judgments about what social media content could be relevant and helpful to their clients’ case. It also exposed the plaintiff’s and her friends’ entire social media profiles to the judge, including portions irrelevant to the slip-and-fall case.

In Gallion, the court removed itself from equation and placed the burden of balancing discovery and privacy on the lawyers. By shifting responsibility to officers of the court, the judge guaranteed that each party’s attorneys could collect the social media information they deemed relevant without exposing the opposing party’s sensitive personal information to the other party. On the other hand, the opposing party’s lawyers were able to view information that exceeded the scope of what may have been discoverable through traditional means, given that the other side’s client’s entire social media profiles would generally not be relevant to the case.

Each of the unique solutions implemented in Barnes and Gallion underscores the notion that the boundaries of discovery and privacy in social media are not black and white. While these cases offer a few examples of how a court may balance privacy and discovery, neither solution was perfect because of the uncertainty inherent in this evolving gray area.

In my final post tomorrow, provide commentary on the uncertainty inherent the crossroads of privacy and discovery in the realm of social media.  A complete analysis of this this topic is discussed in my article titled Social Media Crossroads: An Analysis of the Law at the Intersection of Discovery and Privacy in the Realm of Social Media, first published in Westlaw’s Computer & Internet Journal, Volume 29, Issue 23. 

In part six of Privacy v. Discovery: The Battle for Social Media Information, I continue my analysis of the line of cases holding that certain social media information behind privacy settings may be shielded from discovery:

In Tompkins v. Detroit Metropolitan Airport, 2012 WL 179320 *1 (E.D. Mich. 2012), the court held that social media content “limited from public view” is entitled to a certain degree of protection. The airport asked a slip-and-fall plaintiff to sign an authorization releasing records from her Facebook account to investigate her ability to work and enjoy life, but the plaintiff objected to producing the “private” content.

The court sustained the objection, rejecting the airport’s request to “rummage at will” through information that the plaintiff had specifically concealed from the general public. Before the court allowed the defendant to “engage in the proverbial ‘fishing expedition,’” it emphasized that the airport first must show the private content is reasonably calculated to lead to the discovery of admissible evidence. Without this threshold showing, the court denied the defendant’s motion to compel the plaintiff to execute authorizations for her private Facebook content.

Unlike the first set of cases (Simply Storage & Romano, discussed earlier this week), both Crispin and Tompkins stand for the notion that the Stored Communications Act shields social media sites from disclosing private social media messages that only the sender and recipients can view.

Moreover, these cases suggest that Facebook wall and MySpace comments hidden from the general public may not be discoverable unless the party requesting the information can show that such content will likely be relevant to the claims or defenses in the action. Accordingly, these cases demonstrate the steps a user may take to try to ensure private online information remains private. 

In tomorrow’s post, I will report on cases where courts have created unique solutions seeking to balance each party’s interest in privacy and discovery without setting precedent one way or the other.  A complete analysis of this this topic is discussed in my article titled Social Media Crossroads: An Analysis of the Law at the Intersection of Discovery and Privacy in the Realm of Social Media, first published on Westlaw’s Computer & Internet Journal, Volume 29, Issue 23. 

In part five of Privacy v. Discovery: The Battle for Social Media Information, I analyze the seminal case holding that social media information behind privacy settings is shielded from discovery. As explained below, the Central District of California demonstrates that federal law shields certain social media content hidden from the general public through privacy settings from discovery.

The seminal case holding that “private” social media content is shielded from discovery is Crispin v. Christian Audigier Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010). In an action for breach of an oral license, the defendants served Facebook and MySpace with subpoenas seeking the plaintiff’s “basic subscriber information” and certain private communications. The plaintiff moved to quash the subpoenas, arguing that they violated his privacy rights by seeking electronic communications prohibited from disclosure under the Stored Communications Act, 18 U.S.C. § 2701(a)(1).

Congress passed the SCA as part of the Electronic Communications Privacy Act to prevent Internet service providers that store their users’ private communications from releasing them to the public, the court explained. Specifically, the SCA creates a “zone of privacy” that protects Internet users’ personal information from third parties, the court said.

 In part four of Privacy v. Discovery: The Battle for Social Media Information, I continue my analysis of the line of cases holding that social media information behind privacy settings is discoverable:

In Romano v. Steelcase Inc., 907 N.Y.S.2d 650 (N.Y. Sup. Ct., Suffolk County 2010), court held that a plaintiff lacked a reasonable expectation of privacy for information published on social media sites.

In Romano the plaintiff sued for personal injuries she allegedly sustained in an accident, placing her physical condition in controversy. According to the opinion, she specifically claimed she could no longer participate in certain activities as a result of the incident.

During her deposition, the public portions of her Facebook and MySpace profiles revealed that she still participated in these activities. As a result, the defendant requested the plaintiff execute written authorizations so that it could obtain full access to her social media profiles. The plaintiff refused to provide the requested authorizations on account of her “right to privacy.”