New York Bar approves evidence mining on social networks like Facebook, with some caveats
It’s kind of interesting (albeit a little scary) to watch legal precedents develop around technology we’ve all already been using for years.
We’ve posted before about lawyers regarding Facebook as an “evidentiary goldmine” in divorce cases, and everyone has likely read a story (or knows someone personally) who has been fired from a job for information posted on a social networking site or their personal blog. We’ve even seen Facebook provided alibis keeping people out of jail, and jurors who were punished by a judge for bragging of Facebook about unethical conduct related to a case.
Until a recent decision by the New York State Bar Association, however, admissions in court based on Facebook postings or similar web-based emissions have always raised a bit of dander on the ethics of such evidence. Not much precedent had been officially set regarding how legal counsel should approach the issue of using these technologies to extend you the rope needed to hang your ass.
As stated in a press release, New York State Bar Association’s Committee on Professional Ethics made a determination that “an attorney representing a party in pending litigation may access the public pages of another party’s social networking website for the purpose of obtaining information about that party.” Opinion 843, handed down by the Committee on Professional Ethics, lays some groundwork for the proper usage of the treasure trove of potentially incriminating information just floating around the internet on Facebook and Twitter.
An interesting caveat is that while the Committee ruled that openly shared information is fair game, friending a party for the sole purpose of gaining access to data that could land them in court, jail or other kinds of trouble should not occur. Also not ethical- using non-lawyers as a workaround at the direction of lawyers to obtain another party in litigation’s private data:
“A lawyer who represents a client in a pending litigation, and who has access to the Facebook or MySpace network used by another party in litigation, may access and review the public social network pages of that party to search for potential impeachment material.
“As long as the lawyer does not ‘friend’ the other party or direct a third person to do so, accessing the social network pages of the party will not violate Rule 8.4 of the New York Rules of Professional Conduct (prohibiting deceptive or misleading conduct), Rule 4.1 (prohibiting false statements of fact or law), or Rule 5.3(b)(1) (imposing responsibility on lawyers for unethical conduct by non-lawyers acting at their direction).”
The opinion is unique to New York for now, but it will be interesting to see how this affects or influences the handling of evidence obtained via social networking in other states, or indeed other nations. Consider, for instance, the couple locked in a bitter custody dispute where one parent posts pictures of extensive alcohol or drug consumption of a child-free weekend- would mutual friends of the former couple leak such information to opposing counsel, to cast doubt on the person’s character? If you are on disability but post pictures of yourself water-skiing or doing keg stands, will it nullify your claim or get you prosecuted?
Assuming that just not posting data to such sites will protect you is risky and chances are high that we will see cases emerge in coming years that defy any logical anticipation of prudent personal use of social networks- so don’t fall into the trap of thinking you’re safe because your Facebook privacy settings are high. What about other people’s Facebooks? Merely being out in public around people who know your name and can tag you in a photo could come back to haunt you in later years, and that’s not scratching the surface of data gathered by apps and games applications. (Will someone, somewhere be jailed for an ironic result on a “which murder weapon will you use to kill your cheating spouse?” quiz?)
Have you ever been involved in a legal action where Facebook or a similar service was namechecked in court? Do you worry about the amount or relevance of data you’ve leaked onto the internet over the years?