In February 2011, I wrote a post highlighting the relationship between social media and legal ethics. More than a year later, some judicial guidance might finally be coming in a particularly fuzzy area. A three-judge panel in the 3rd District Court of Appeals is about to decide whether a jury foreman who posted Facebook status updates about the trial can be forced to turn over his social media data for the months during which the trial took place.
At its essence, the case is a microcosm of the shift toward social media as a primary form of interpersonal communication in the digital age. The real question that judges—both the ones in this case and judges in general—need to answer is whether free speech and privacy go out the window just because there’s a digital record of many of our conversations.
Before social media, of course, jurors talked about cases with their friends and loved ones, but they did so verbally, beyond the eyes of attorneys and judges. Judges could—and can still—sequester juries, but they would never proactively seek to monitor jurors’ discussions outside the courtroom with a wiretap or a well-placed bug.
Yet that’s exactly what’s happening. Aside from the 3rd District case at hand, other judges have actually monitored jurors’ social media activity during the trial. I have heard (without proof) of judges actually demanding jurors’ login information (something some employers apparently think they can demand from job applicants, too).
On their own, the juror’s actions in the 3rd District case weren’t even that provocative. According to his claims, all he did was note that a section of testimony relating to cell phone records was boring and occasionally update that he was still on jury duty. If that’s true, it’s a far cry from the case I noted last year, when a juror in a death penalty case tweeted, “OMG! jdg picked me 2 decide doods f8! Looks gil-t frm here ;-).” But that didn’t stop the trial judge from demanding the Facebook records.
There’s no question jurors should not share information about cases online, so the issue is how far we are willing to go to ensure they do not. Should social media present a different situation from legacy modes of gossip just because it’s digital? Is the right to privacy in our personal communications somehow different if we choose to conduct them online?
It’s a difficult question to answer. Certainly there’s a stronger possibility of outside influence when jurors open themselves to comments from the greater world of webizens, but that’s not always the case. In the 3rd District, for example, the juror’s profile was private and only his friends could see the updates. True, that might end up being more people than anyone’s flesh-and-blood social circles, but times are changing.
Maybe the answer lies in a broader question that the 3rd District panel doesn’t seem particularly keen on answering (because, well, it isn’t at issue in the case): What, exactly, are our general privacy rights in the digital world? Are my direct messages on Twitter or Facebook the equivalent to sending a letter, or are they an open book for anyone wearing a badge or a robe to see? It’s still something of a mystery.
As it stands, law enforcement agencies haven’t been shy about subpoenaing social media and other Web records without search warrants. Heck, courts aren’t even settled on how laws such as the Stored Communications Act relate to cloud-based e-mail. Until there’s some clarity on when our digital communications are actually private, the incentives are strong to keep anything really personal or potentially controversial offline—much more so if you’re sitting on a jury with a judge possibly looking over your shoulder.
And that’s a damn shame. Inherently, digital communications will never offer the same privacy protections as physically whispering something in someone’s ear, but they need to have something. Technology is changing the world, and we can either fight it tooth and nail or accept it, let it flourish, and learn how to live with it. In the name of progress, I will choose the latter.
Also from GigaOM:
The Capex Connection: Why We Pay for Privacy on the Web (subscription required)