Social Network Websites and E-Discovery

March 29th, 2010

Common uses of social network websites in legal investigations

An “online social network website” is an internet tool that allows people to connect with friends and acquaintances via the internet. These websites typically require users to create a user profile, and facilitate such activities as chats, instant messages, and digital photo uploading for posting on the profile. Many sites allow users to post a “status update” that informs other people in the network of a person’s activities. These social network sites have become part of many people’s daily routines, oftentimes even being used by employers as part of their daily business activities. Some of the most common social networking websites are MySpace, Facebook, Twitter, and LinkedIn.

As explained in a previous article, the content published on a user’s profile page is considered to be “Electronically Stored Information,” or ESI. According to the Federal Rules of Civil Procedure, ESI can be obtained during the discovery phase of a trial to be used as evidence against the person. In other words, what you post can eventually be used against you in a court of law. Indeed, the use of the information found on such websites in legal proceedings has become the norm rather than the exception. This is because people often post the more private details of their lives on these sites. Lawyers are now utilizing this private information in the most varied and unimaginable ways to prove guilt in a court of law. This article outlines the more common uses of social network sites in a court setting.

Criminal Proceedings

ESI obtained from social network sites are being used in myriad ways in criminal proceedings. These websites are used in proving everything from intoxication and alcohol abuse to possession of firearms. In particular, the photographs posted on user profiles can be literal treasure troves for prosecutors, since, “a picture paints a thousand words”.

The classic criminal case that one thinks of in regard to social network websites is the predator/stalker/sexual assault case. This situation usually involves two people who meet each other via a social network website. Many people often create fake profiles in order to create alter egos and false identities. Often it is the case that one person is underage, and the other may be a former criminal or an online predator or stalker. The two people end up meeting each other in person, which can lead to a sexual assault or a related crime such as statutory rape.

For example, in 2007, a Texas girl arranged such a meeting with a 19-year old man. She claimed to be 18, but in reality she was only 12. After the two met and allegedly had sex in a parking lot, her parents sued MySpace for negligence. The Texas judge denied the family’s $30 million claim, stating that the parents, not MySpace, should be held liable for the girl’s activity. This court’s ruling is typical of such cases- the parents, and not the website companies are held liable for their children’s activities. With regards to parental liability, courts have stated that it is the parent’s responsibility to raise children, not the website’s.

In the wake of such online predator cases, many social network sites have features that allow parents to track the online activities of their children and teens. For example, there are many “MySpace trackers” online that allow parents access to their children’s profiles. Many have debated the usefulness of such trackers, since many youth create fictitious accounts in the first place.

The relation between social network websites and criminal activity has become so marked that there are several websites dedicated to posting the latest news on criminal activity that is linked to such sites. An example of such a site is MyCrimeSpace.com, which posts its online news findings in a format similar to that of MySpace.

Employment Situations

Another typical use of social networks in legal cases is in an employment setting. Many employers now make it routine practice to check user profiles before hiring employees. It is also common practice for employers to regularly visit the profiles of their employees in order to verify conduct or work attendance. Imagine coming to work the week after “calling in sick”, only to be fired because the boss saw the pictures of your vacation online!

In a recent case, Spanierman v. Hughes, 2008 U.S. Dist. LEXIS 69569 (D. Conn. Sept. 16, 2008), a high school teacher was fired for the way he used MySpace. He claimed that he was using the site to communicate with his students. However, his profile page contained several inappropriate pictures, and after students complained, the school conducted an investigation and subsequently fired him. As you can see, the online conduct need not be intentional in order to prove guilt.

The main point that workplace cases raise is that one can get fired or sued even for conduct that occurred while they are away from the workplace! This means that the boundaries between private and public are quickly eroding as the internet makes more of our personal lives available for scrutiny.

School Policies and Alcohol Abuse Violations

Another favorite use of social networking websites is in the enforcement of school policies. Most users of social websites are minors and teens such as college and high school students. Many sites set an age requirement of 18 (though this is easily circumvented by a fake profile). Several schools have begun to use Facebook to enforce school policies, in particular, for enforcing underage alcohol abuse.

To illustrate, in 2008, Emory University issued citations to a number of students who belonged to a Facebook group named “Dobbs 2nd Alcoholics”. The name referred to students who lived on the second floor of one of the residential dorms. They were reprimanded for violating dorm alcohol policies. In the past, such enforcement was not possible unless the school had direct surveillance of the students. Now, it is much easier for the academic board to issue a violation.

Other ways in which schools now use social networks to enforce activity are with regards to sports and academic teams, and student groups such as clubs, fraternities or sororities.

Businesses that Use Social Networks in the Office

Many businesses often use social network websites as part of their everyday operations. For example, many companies use the websites as ways to gain marketing access; other companies encourage their use for communication between employees. Even government entities have been known to use Facebook as a way to communicate with local citizens.

Some companies have even gone so far as to replace traditional e-mail with a website such as Facebook. This can raise interesting questions, especially when discussing financial matters. For example, if the human resources department authorizes an employer to cash a check, but sends this memo in a Facebook message, how is this to be accounted for in the company’s financial records? What if the messages are deleted or erased over time?

For such businesses, the main consideration is accounting. As with all electronically stored information, the information stored on social networking sites are subject to erasure, and often are not very well protected from hackers. To address this concern, some websites are being created specifically for businesses that contain features dealing with archiving and transferring message updates into an e-mail format.

Preserving electronic records of transactions is the main concern for businesses, since many courts have severely penalized companies for deleting or erasing business records. This is even more true if the records have been requested for trial.

So, if your business utilizes a social network as its main method of office communication, bear in mind that the biggest challenge in discovery of online information is that the encrypted data can be erased. Such information is also typically very difficult to wade through and sort out for trial purposes. This is largely because the information on these websites is in “constant flux”; that is, the posts and updates are constantly changing from minute to minute.

The best thing a business can do to protect itself from civil liability is to make sure that business records are well archived and neatly organized. There are several technological tools that the IT branch of a business can look into for such purposes.

Concluding Remarks: The “Death of Privacy”? Many authors have called the explosion of social network websites “the Death of Privacy”. While privacy is not completely dead (we still have many Constitutional rights to privacy), as mentioned before, the line between public and private is increasingly getting blurred. As the public life spills over into the private, and vice versa, what we say and do online begins to have greater legal consequences than in the past. As for the legal system, it is probably safe to say that it is experiencing a look into the private life like never before.

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Electronic Discovery - Can Contents of My Electronic Communications Be Used As Evidence in Court?

March 24th, 2010

The use of electronic internet devices such as computers, laptops, cell-phones and smart phones, has led to an explosion of readily available information. The web has become a literal smorgasbord of data - facts galore, sports stats heaven, and the latest teenage nonsense can all be accessed at the touch of a button, or the touch of a screen. The sheer amount of “stuff” can seem at times more like a virus outbreak than an explosion, or like a tidal wave that wipes out the casual web surfer.

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Running an Online Store Without Terms of Use is Risky Business

March 22nd, 2010

No one really notices them while shopping online. However, mega sites such as Amazon.com and Toys “R” Us have them, so do smaller names such as SnuggleMe.com, an online pet products retailer. These are the all-important website terms and conditions, which should be on your website too.

Website provisions are not just legalese that attorneys insist on inserting onto your website. When you set up an internet store, you are offering your customer products, services or deals. The rules that govern cyberspace shopping are the same as those for physical business transactions. You want to ensure that (i) you are getting what you are paying for (ii) at the price you agreed to, and (iii) you have options if you are not happy with what you received. The basic principles of commerce hold true whether you are selling bookkeeping services to Greenway Law Firm in New Jersey, or jewelry to Alice in Arlington. It is necessary that your customers are clear in their minds.

Internet shopping also raises a number of legal issues that you don’t necessarily see to the same degree in the “bricks and mortar” world. Because Internet law is so new, it is unclear as to how it will be interpreted. Leaving matters open to chance could be a risky proposition indeed.

What can you expect to see? Terms and conditions don’t always go by the generic name “terms and conditions.” Sometimes, terms are divided into subject areas on separate web pages, like “privacy” or “returns” or “disclaimers.” The breadth of terms you may need depends on the nature of your business. If your website is a brochure-type site that simply promotes your own services, you may not need as robust a list as a site like Home Shopping Network (hsn.com), which sells other people’s products. Consider the following categories:

1. Privacy Policy/Privacy Notices. These largely cover how you will collect and use information. Will you rent, share, or sell the personal information you capture? Will you place cookies on your users’ sites? Given the concerns about identify theft and security, you’ll want to put your customers’ minds at ease with reassurances about confidentiality and how you’ll maintain the security of the information you collect.

2. Legal/Terms of Service. These cover a lot of the legal ground rules about acceptable behavior on the site. If your site has any kind of community forum, you’ll want to be sure that everyone “plays nicely in the sandbox”: no offensive language, no harassing, no infringement of other’s intellectual property, etc. Terms of Service provide the meat of the contractual terms so that your customers can’t come back and say, “I didn’t know… I didn’t agree to this…” or find some other way to weasel out of the purchase they made. And, because lawyers like disclaimers, they also state that you have no responsibility for what people may find when they link through your site to 3rd party sites.

3. Payment and Returns. These terms focus on your financial arrangement. What will you charge? Under what circumstances will you change your pricing? Do you have a return policy? What forms of payment will you accept? Credit cards? PayPal? Personal check? Cash? Each one of these has its costs and inconveniences so choose what makes sense for you.

4. Copyright and Intellectual Property Policies. Your site contains valuable intellectual property (yours, certainly, and possibly other people’s). These terms cover the procedure for handling intellectual property infringement claims, and what actions are permissible (or prohibited) on the site.

Wow — what a list!! Now you see why website terms and conditions are an important part of your arsenal of protection - and why it’s not wise to put these together yourself. These provisions can vary depending on the nature of the product or service being offered, so make sure to review your terms with an attorney so that they are relevant for your business and provide you with the protection you’ll need!

Nina Kaufman, Esq. demystifies legal mumbo-jumbo to save small businesses time, money, and aggravation. She’s an award-winning business attorney and columnist/blogger for Entrepreneur Magazine online. Learn more about her user-friendly business law resources at http://www.GreatBusinessLawResources.com. For her free Contracts & Collections Info Kit, go to http://bit.ly/freecontractlaw

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Parameters For Regulating Electronic Commerce

March 16th, 2010

Regular contractual principles, especially those pertaining to distance sales, may also be applicable to electronic commerce, albeit with some modifications. However, in this regard it immediately becomes relevant to draw some distinctions between whether the product or service is to be delivered via traditional means or whether it may in fact be delivered electronically, and whether the goods or services in question are intended for commercial or private consumption.

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Cyber Law and the Internet

March 8th, 2010

With all the information that is exchanged on the internet it makes it an easy target for crimes to be committed. You are exchanging personal information every time you shop or join a social network. Strangers are consistently trying to access this personal information about others so it can be used in other ways.

Since the internet is drawing in more people daily for using, it is also drawing crime in. The crimes on the internet are mounting daily. There are many different kinds of crimes that are done for different reasons. Some crimes like hacking are done so a person can have bragging rights. Other crimes are done in order to get a person personal information so it can be resold on the black market.

Let us take things a step farther so you will understand the different types of internet crimes. There are computer intrusions which mean bots, worms, viruses, spyware, malware and hacking. Computer intrusions have been known to take down complete systems in many different organizations. Sometimes it is another organization knocking the competition out for a while. Other times it is someone wanting to brag that they hacked into a major system and disrupted things and made the system crash.

Child pornography is growing at a rapid place on the internet. With the child pornography there are more pedophiles that are showing up on the internet. The pedophiles are trying to lure children in to meeting them. If a child is going to be on the internet it is always best to take precautions and restrict where they can and cannot go. This will help to keep them safe from lurking criminals.

These are just a few of the internet crimes that are committed around the clock. There are laws in place to handle internet crimes. These crimes are dealt with just like a crime that was not committed on the internet. There will be steep fines and even jail time if a persons is caught doing any type of crime on the internet.

A thing to remember is the person will have criminal records if they are charged with an internet crime. Criminal records follow a person around for the rest of their lives and can make it hard to do certain things. People have many reasons to look at persons records from curiosity to jobs. The records are easy to view online any time of day or night. A person only needs to know where to go in order to search criminal records and they can see every crime a person has ever committed.

The next time you are online and thinking about doing something to another person, you better think twice. Just because another person cannot see you or does not know who you are does not mean they cannot track you. Everything on the internet can be tracked one way or another. A crime will be dealt with even if it was committed on the internet. There could be steep fines and even mandatory jail time. It just depends what the person is being charged with.

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The Risks of Internet Chat Rooms (II)

March 3rd, 2010

It will be so invaluable if we can be aware of the fact that; it is not only teenagers that are at risk in internet chat rooms. Studies have revealed that adults are also affected by this baleful act. A cyber sex offender, using smooth speech to tell a woman what she wants to hear can lure such into cyber-sex. You will not dispute it that several women have fallen victims of this ugly development in the society today. I guess the reason women are so vulnerable generally is because of their tender nature. This however, is not tenable for being green. I believe the society still have a lot of works to do for normality sake.

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Is Your Online Contract Enforceable?

February 25th, 2010

In order to decide if a contract is procedurally unconscionable, courts consider factors such as how the contract was entered into, whether the parties had adequate time to read and understand the contract, and whether important terms in the contract are conspicuous. Under the Uniform Commercial Code of many states, a term in a contract is conspicuous if it is presented in a manner “that a reasonable person against which it is to operate ought to have noticed it.” Courts interpreting this definition have looked to see whether the presentation of contract terms include any means to set it, or its heading, apart from the rest of the content displayed, such as difference in color, size, or font.

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Cyber Security - 4 Things to Do to Improve Computer Cyber Security and Prevent Cyber Crime Attacks

February 19th, 2010

In this article, you will learn to avoid all the silly mistakes most computer owners make and expose their computers and personal information open to cyber attacks. You’ll also discover why is it important to change your passwords frequently and have up-to-date firewall and antivirus program.

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Computer Crimes - Five Things You Must Know to Protect Yourself

February 15th, 2010

There are all sorts of computer crimes. Some involve actually hacking into someone’s computer in order to destroy or otherwise misuse it, while others involve just using someone’s personal information online. Identity theft can also be construed as a computer crime, if the person’s identity is stolen online.

So that you can protect yourself from computer crimes, here’s a list of common ones:

  • Hacking: Hacking involves illegal or unauthorized entry into someone’s computer. This could be a personal computer at home or a computer or computer system belonging to a big corporation or government entity. What hackers do is gain entry into the computer system then either maliciously destroy or alter information, or they download information (social security numbers, for instance), and sell that information to criminals. One of the most insidious hacking crimes that are popular right now are hacking IP addresses. With your IP address a hacker can essentially pretend to be surfing from your computer. This allows the hacker to assume a false identity online and essentially blame their crimes on you.
  • Phishing: Phishing is the practice of sending fraudulent emails to online users. People see these emails which purport to be from their bank, for instance, for from online payment processors like PayPal, and they answer these emails giving away their sensitive information like usernames and passwords.
  • Computer viruses are one of the main forms of various computer crimes. Viruses infect computers, replicate, then destroy the hard drive or other mechanisms in the computer. Criminals don’t really gain anything from viruses in terms of money.
  • Identity theft is one of the most prevalent computer crimes in the world. It involves stealing someone’s identity, such as address, social security numbers, etc, and using this information to impersonate the person online or offline.
  • One of the newer computer crimes is cyberstalking. Cyberstalking involves tracking someone online, sending them unwanted emails, and generally following their movements. Cyberstalkers can also spread false information about someone online and also issue threats.

As you can imagine, computer crimes are on the rise. Knowing what form they take is the first step in protecting yourself against them.

Next, you need to learn how to prevent internet identity theft. You can do so by visiting this website, Prevent Identity Theft Now!

Lee Cole is an successful internet businessman who runs a number of informative websites online. To learn more about preventing identity theft, take a look at his website, today!

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International E-Discovery Compliance - Privacy First

February 12th, 2010

The United States is, well, different. In America, we play football, other countries they play soccer (which they call football). Soccer for much of the world is more than just a game. Fanaticism over the sport is feverish, even hysterical. Here, professional soccer leagues struggle for audiences. While the rest of the world thinks it a bit barbaric, Americans have stuck steadfast with obscure measurements that the rest of the world long eschewed. We measure in feet and inches while they measure in centimeters and meters. We do things differently in the United States. There’s nothing wrong with that. But when it comes to the law, it’s important to know that the principle applies there as well. With regard to navigating the privacy legislation, the landscape in the US is different than that of the rest of the world. Personal data may be protected form disclosure but, if properly protected, it can be sent anywhere in the world.

Those places to which our data can be sent, though, hardly reciprocate in the burgeoning arena of data transfer. The subject is important to study and understand, especially for businesses that move large amounts of data across borders. International data transfer is mired by its incredible complexity: the issue is so complex and convoluted that it has been known to perplex even the most astute federal judges. They frequently default to U.S. procedural rules, placing the non-U.S. company in the unenviable position of dividing whether to risk criminal sanctions here for violating a U.S. judge’s order to produce data outside the U.S., or to chance a jail sentence for violation of privacy laws in his or her home country.

Outside of the United States, international data transfer laws are governed by regional, local privacy, and data protection laws. Multinational businesses must understand the implications such laws have on e-discovery. The first order of business is understanding the distinctions between laws in the United States and other nations. For example, when we are discussing “personal data” in the US, we are referring to such things as financial and medical data. Within the European Union, such data as email is referred to as “personal data” as well. Each region within the EU has its own rules as to what can be tied directly to a person.

In the US, data transfer is not so unwieldy. There is little in the way of laws regulating the transfer of data over borders. Yet, the E.U. Privacy Directives and enabling legislation hold that personal data (again, all email), may not be sent outside the European Economic Area (the E.U. member states plus Switzerland, Liechtenstein and Norway to any country with lesser data protection than the E.U. There are only a few nations that meet the EU’s standards for data transfer: Canada, Switzerland and Argentina. But such laws are not endemic to the European Union. Countries like Chile and Venezuela have similarly draconian restrictions.

The effect of all this upon in-house counsel trying coordinate collaboration across the enterprise, which often depends, say, on a U.S. engineer obtaining emails between his German colleagues, or a Human Resources manager in Kansas faced with a need to investigate hostile workplace claims between employees in Germany is starkly obvious, but outside counsel in litigation my find herself stymied as well. An attorney’s first instinct will probably be to put into place a global litigation hold as is common place with regards to dealing with e-discovery law within the US. Yet, the European Union’s Privacy Directives again broaden terms U.S. lawyers use commonly, in order to maximize privacy protection. “Processing” of data includes any manipulation of data, including steps taken to protect it from deletion. The Directives also hold that “processing” may only be performed for a permitted purpose, and European Commission opinions have held that U.S. litigation is not a purpose for which processing may be performed.

Blocking Statues, however, may make things worse than they seem Such laws can prevent the transfer of any data that is to be used in foreign judicial proceedings - a possibly devastating prohibition. Blocking statutes in Switzerland and France carries criminal sanctions.

In light of such stringent privacy and data protection provisions, how is a company in which collaboration depends on almost daily international data transfers to function? One method, for data from the European Union, is enrollment in the U.S. Department of Commerce Safe Harbor Program. The program requires the U.S. company to file a Privacy Statement summarizing how it will protect personal data from the E.U., and in which it agrees to adhere to seven principles of confidentiality and data protection. There are also some contractual agreements that can be put together to deal with potential problems with regard to data transfer. Recently, many companies have implemented Binding Corporate Rules, in effect corporate codes of conduct for personal data protection. In Asia, Canada, South America and elsewhere, data transfers require compliance with local data protection laws, or permission from or notification to local data protection authorities. These are complex agreements, and counsel that has a relationship with counsel that is located in the host country is essential.

Unfortunately, not any of these are a panacea for a lawyer who regularly deals with international data transfer issues. None of these solutions lets personal data be transferred onward. Should the data be required for court proceedings, oftentimes, it is required that the attorney obtain permission under the guise of local data protection laws. Should counsel fail, however, they can seek to obtain an Protective order, citing “Hobson’s Choice”, though United States courts have tended not to be very sympathetic to such a line of argument. One solution, then, is to educate the adversary to the issues and negotiate time extensions of other agreements as to the non-U.S. data, perhaps in exchange for e-discovery concessions form the adversary if the litigation is symmetrical. It is up to a good attorney to educate a judge who may find these laws unwieldy, convoluted, and unfamiliar. It is a must otherwise a company will have to decide whether to violate a judge’s order or risk jail time and/or sanctions.

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