social media

In today’s culture, people post information on social media that can be shocking and revealing. Behind a screen, users seem to feel safe and protected from the consequences of their publicly shared stories, photos and videos, even if they are illegal.

This raises the question of whether you can be legally liable for what you say on social media? Is a photo, video or status enough evidence for law enforcement to deem your action illegal?

While it depends on the case, the answer is yes. If what you post on social media is illegal, you have a significant change of essential incriminating yourself.

Whitney Beall, a 23-year-old from Florida recently received a DUI after live streaming herself driving drunk on Periscope. Police were able to track her location and arrest her while committing the crime. Hawaii resident Richard Gerlad Godbehere, Jr. wasn’t live streaming but similar to Beall’s actions posted a video of himself online driving while drinking. After the police were informed of the video, Godbehere was arrested for Possessing Liquor While Operating a Vehicle as well as Driving Without a License.

In cases such as Godbehere, although police didn’t physically catch him breaking the law, the video presented substantial evidence revealing illegal actions. This was also the situation with Jacob Cox-Brown, an 18-year old Oregon resident who posted a photo on Facebook of a parked car he had crashed into while intoxicated then left behind.

He captioned the photo “Drivin drunk…classic;) but to whoever’s vehicle I hit I am sorry. :P”, complete with careless character faces. Facebook friends of Cox-Brown soon informed authorities and due to his posted evidence, he was later charged with failure to perform the duties of a driver. Cox-Brown was not charged with drinking and driving though as the photo posted did not prove the teenager’s physical state at the time of the incident.

There have been several of these cases and the outcomes are typically similar, if you are presenting evidence of a crime you committed online in a public virtual setting, it’s essentially the same as you presenting the evidence to a law enforcement officer in person.

The digital age is still evolving and now more than ever, the online community is consistently growing. Law enforcement uses Facebook and other social media channels to solve cases, catch criminals and gather evidence for prosecution. A confession is still a confession, no matter where it takes place.

We all know that privacy settings are essential on social media sites. We try our best to protect ourselves, keeping in mind that what we post, like or comment on could hurt our family or friends or even cost us a job opportunity. What we don’t consciously think about while tweeting, instagramming or posting is that we could face legal ramifications for our social media actions.

How Could I Be Engaging in Incriminating Actions?
There are multiple ways in which you could be engaging in incriminating actions. For example, the most obvious way to engage in such actions is to incriminate yourself directly. Stating openly or even posting a related picture on social media implying that you had any connection with a crime can and will be used against you. A social media post can be viewed as an admission, so if you feel that you may have made a social media connection with a crime, consult your attorney.

Connections and associations will also be taken into consideration when law enforcement agencies are investigating a crime. Even if you had absolutely nothing to do with the crime, being Facebook friends with a suspect could lead to trouble for you. If you aren’t consciously aware of your association with a potential suspect of a crime and tell police enforcements that you do not know them, they can see if you are affiliated with them via social media and you could face charges for perjury.

Location is a social media setting which we are not typically aware of but could cause a great deal of trouble. If you were to post a photo or status in which the location can be traced then your location can be pinpointed by anyone who you are digitally connected with, or even law enforcement. You do not have to be at the scene of the crime to be a suspect, but if you checked in somewhere else a few miles away, it is possible for them to launch an investigation on your whereabouts. While you can avoid using location services on social media for your own protection, you should be cautious and know that many apps are continuously tracking you on your phone and can share locations with your contacts.

While you may argue that you have the right to privacy and have secured your social media profiles to the best of your abilities, there are ways for law enforcement to access your profiles and go through them. It is crucial be aware of what you are posting whether a large crime like a drug ring busted in New York via Facebook, or even if you are petitioning for custody of your children.

What Your Lawyer Might Tell You About Social Media
Your lawyer may advise you to monitor your social media profiles even for court disputes that are not crime related like injury suits or divorces. An insurance claim investigator may view your photos and attest that your injury isn’t related to an accident that an insurance agency or other client may have to cover, but something else that they saw you were engaged in via your social media sites, like skydiving. Similarly, if you are in the middle of a divorce and fighting for custody of your children, your spouse could easily use posts or photos which portray you in a negative light. Your lawyer may advise you to shut down your accounts so make sure to speak with them and see what they feel is the best way to protect you from your own social media accounts.

Other Social Media Crimes
You may be reading this and think that none of the situations described above apply to you. Can you still be affected by what you say or do on social media? Absolutely. It is important to know that while we enjoy the freedom of speech, we could face trouble if we take that freedom too far. For example, any form of harassment, menacing behavior, threatening behavior or offensive comments could lead to ramifications. You may claim that your rants are “therapeutic” like Anthony Douglas Elonis who was arrested for threatening comments he made against his ex-wife.

What you say, or even repost could get you into trouble. Social media monitoring may feel like a violation against your rights, but in the long run it protects against negative outcomes like bullying and harassment. Be aware of the repercussions of what you are posting via social media. You may want to leave that thought for your diary rather than your digital profile, which will follow you around forever.

A new state law in Delaware is making it possible for estate executors to access a deceased account holder’s digital assets, which includes social media and email accounts. While some internet groups have lobbied that the act violates consumer privacy, legislators who support the Fiduciary Access to Digital Account Act feel it is important for estate executors to have access to digital accounts after the account holder’s death, with or without a court order.

Delaware has passed the law and 18 other states are reviewing the act and may make decisions soon. Delaware has made it possible for trustees residing in the state to access the information even if the account holder does not live in the state. Meanwhile, social media sites are taking necessary precautions to protect the privacy of their users.

How Facebook Helps Protect Your Profile
Facebook launched a setting which enables users to appoint a “legacy contact”. This contact is the sole person who will granted limited access to an account holder’s Facebook account, unless the account holder makes other arrangements. The legacy contact is able to write a memorial message, respond to new friend requests, update public pictures like the profile and cover photo, and with the permission of the account holder, download any public profile information like pictures and posts. The legacy contact will not have access to private messages. While Facebook is protecting their users’ privacy, the law still allows estate executors to access other accounts like email.

Protecting Private Email Accounts
Emails are much less filtered than letters since email account holders trust that their digital mail is secure. The act does grant access to these forms of digital communication which may be necessary to handle other accounts such as financial or joint family accounts. However, family members could potentially find information that they had not expected through email which was meant only for the account holder.

What Does the New Law Mean to Family Members?
The law has made its way to the Southwest, in New Mexico, and it is important to be prepared. Family members should consider that even if they have the username and password to an account, they may be violating federal law by accessing the account after the account holder has died.

In order to avoid legal ramifications, account holders should specify who they want their accounts to be accessed by, and how they want their accounts handled or disposed of. Digital accounts may include valuable assets, from financial information to legal documents, family photos and memories. Collection of these files should be designated to a specific person and account holders should talk to their attorney about how to best protect themselves and their loved ones against violation of privacy and information and/or identity theft.

Police around the country are using instant messages, text conversations, posts, photos, videos and more to aid criminal investigations, in addition to creating their own department accounts to reach their communities with alerts and updates.

Such investigation methods have come a long way since the days when phone records, followed by text messages and then emails proved to be powerful evidence as police investigations evolved over time. Today, communication and information sharing goes beyond calls and texts with social media, and police departments are utilizing this technology as a tool for fighting crime.

When a South Carolina man was shot in 2013, police used his personal social media account to find that he was recently feuding with two men online.

With that information, police were able to gather a list of suspects as well as potential witnesses who saw the conversations and posts, Greenville Online reports.

Using this information in accordance with video surveillance footage from a nearby building where the shooting took place, police put together the start of an investigation using social media as the building blocks.

Traditionally popular social media platforms like Facebook and Twitter aren’t the only helpful online resources for police, although they are the most frequent with 92 percent of departments using Facebook and 65 percent on Twitter, a 2013 social media survey by the International Association of Chiefs of Police found.

Pinterest helped a California police department re-unite a woman with jewelry stolen from her home during a burglary in 1983. The bracelet, with the names and birthdates of the woman’s three children, was discovered thanks to posts on the department’s Facebook, Twitter and Pinterest page for recovered property.

Police departments are also creating their own social media profiles to keep in touch with their communities. The City of Phoenix Police Department, for example, posts breaking news, alerts, safety tips and more on its Facebook page to keep residents informed.

In some instances, social media helped build a relationship between police and the community. USA Today reports that posts have brought residents and officers together online to identify photos of suspects, name shoplifters and find the owners of lost pets.

In fact, the same 2013 the International Association of Chiefs of Police survey found that more than 73 percent of law enforcement agencies believe social media has improved community relations.

The widespread participation and constant availability of social media sites such as Facebook, Twitter, Instagram and MySpace is practically yesterday’s news.

Social media has had such a great presence for several years now, constantly evolving to find a place in society’s daily activities. Most social media apps and sites allow users to communicate with others, upload photos and check into locations at any moment both privately, for friends’ eyes only, and publicly for the entire internet to see.

What is notable about social media’s growing establishment in everyday behavior is the impact these sites are having on law enforcement, acting as both a help and a hindrance.

Locational information as well as public photos and comments have provided police, prosecutors and investigators with new forms of evidence that can act as catalysts to punish criminal behavior.

Many suspected offenders have been caught with the help of social media that was intentionally used as a platform to document their crimes, like a Vietnamese man who surrendered to Ho Chi Minh police shortly after confessing on Facebook that he killed his girlfriend, or a Delaware woman whose vehicular manslaughter sentence was increased due to incriminating photos and messages that portrayed her glamorizing alcohol abuse, The New York Times reports.

Many other cases exist where social media has proved helpful to law enforcement, and with 80 percent of an estimated 500 agencies using social media in criminal investigations, according to a 2013 survey by the International Association of Police, it would seem as though the vast amount of available information social media provides is a crime fighting miracle – but there’s a catch.

Social media is just as challenging for law enforcement as it is helpful.

The expansive amount of online information is overwhelming. Anyone with internet access can have an online identity, and with credibility on the web still a developing phenomenon, investigators must learn to work with false tips and anonymous online confessions that could turn a case upside down and cost agencies time and money for information that may or may not be of value.

There’s also the issue of the Fifth Amendment, which gives citizens the right to not incriminate themselves. Judges and jurors are supposed to base their conclusions on evidence that is, “authentic, reliable and relevant,” said law professor and social media expert for Chicago-Kent Institute of Technology, Lori B. Andrews in The New York Times.

Sometimes posts and comments on social media are taken out of context and misunderstood, resulting in unfortunate outcomes for those involved. For example, Andrews said that photos of people jokingly flashing gang signs have been used by courts to prove actual gang affiliation, and sexualized photos of women have been used against them in divorce and child custody cases.

What’s even more difficult to manage is the use of social media by jurors and those involved in investigations and cases.

In the past, lawyers have been known to hire private investigators to research jurors in order to create a more persuasive and well tailored argument. Today, social media is an online biography displaying personal information making it easy for lawyers to evaluate a jury.

Jurors themselves are increasingly causing issues in court due to their social media use while serving jury duty. Restrictions banning or controlling technology use while in court vary from state to state, so instances of live tweeting during testimonies and Facebook updates revealing highly sensitive information have resulted in mistrials, appeals and overturned verdicts.

http://www.nytimes.com/2014/02/16/sunday-review/social-media-a-trove-of-clues-and-confessions.html?_r=0

A Virginia appellate court recently ruled that “Liking” on Facebook is protected as free speech under the first amendment.

The new ruling stems from a lower court case in which Sheriff’s Deputy Daniel Ray Carter was fired for “Liking” the campaign page of his employer’s opponent in a race for re-election as sheriff.

Brian Fung of the Washington Post reported that the issue in question was whether or not Carter’s action in “Liking” a post on Facebook could be construed as speech and therefore protected under the first amendment.

The case caused national attention and controversy worldwide. The court viewed the “Like” button on Facebook as positive speech, hence the symbolic agreement. Some Facebook users would disagree, recognizing that “Liking” something on Facebook does not necessarily mean supporting a page or post, but simply engaging in the conversation or choosing to follow future commentary on the post.

Regardless, the case revolved around the question of whether Sheriff B.J. Roberts of Hampton Va. violated his employee’s right to free speech when he fired Carter.

In deciding that Carter’s right to free speech was violated, the court ruled that using the “Like” button on Facebook is protected under the first amendment, citing the 1994 case City of Ladue v. Gilleo, in which a political campaign sign was ruled as free speech because it was a symbolic expression of opinion.

What are the consequences?

Now reporters and individuals are questioning what this means for other electronic forms of communication like the share button, retweets or pins. Are these forms of symbolic expression, too?

From a legal perspective, this ruling can impact the concept of hearsay in court cases. The language from the court seems to specifically address the concept of hearsay – that a statement can be a symbolic representation of an opinion (shaking your head no is still hearsay even without saying anything).

As criminal defense and family law lawyers, this case could have an interesting impact on Arizona cases, especially family cases where parties research Facebook pages and internet searches for anything and everything they can use against one another.

Could your liking of craft beers or medical marijuana Facebook pages end up being allowed in court?

As we see it, that depends. On one hand, the court is saying that liking those pages actually communicates something (making it relevant) but on the other hand, the fact that the statement was made out of court makes it hearsay.

In family court, hearsay doesn’t automatically apply unless one of the parties files a motion with the court to follow the strict rules of evidence – a decision that the family law attorneys at Corso Law Group can help you make based on this decision.