Episode 29: Facebook, Twitter, and the Laws of Social Media

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Welcome to another edition of the Legally Easy podcast, presented by Rocket Lawyer. With the Anthony Weiner scandal dominating the headlines, we delve deeper into social media law, how it’s used and authenticated in court, what precedents govern social media in court, and what “privacy” actually means in an increasingly public world.

Let’s dive in.

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00:00- Introductions and salutations; Charley is again joined by Sasha Volkov.

1:00- Charley gives us an update on Weinergate. As we recorded on Thursday this week, our show was happening during the press conference in which Anthony Weiner quit the House of Representatives. We talked about some of the issues surrounding his sexting scandal last week but had since learned that Weiner was also messaging a 17-year old, though he claims nothing explicit was exchanged between them. While the erstwhile New York Congressman stepped down yesterday, this certainly isn’t the last time we’ll see Twitter and other social media as a focal point of an investigation.

4:02- After learning of another trademark dispute involving Apple Computers, we recap their sordid history of infringement claims. Cisco, Fujitsu, the original iCloud, and the Beatles have all sued the Cupertino computer company and though Apple usually settles out of court, this seems to be a part of a larger pattern.

6:21- Sasha recounts the tale of a New Mexico man’s inflamatory pro-life billboard while Charley worries about our shrinking sense of personal privacy. We look into what “private” actually means on Facebook and discover that it really doesn’t mean all that much, at least as far as the courts are concerned.

10:40- With that, we give our guest Bradley Shear a call. Brad has a private practice in Maryland and blogs extensively at Shear on Social Media Law.

12:56- After giving us a little background on how he became interested in the issue, Brad forecasts an exponential increase in social media as evidence in court. If you use Facebook or Twitter or really any social media, you’re essentially creating evidence. He also bemoans the fact that Weiner claimed he was hacked. Hacking and fraudulent online posting are serious, growing issues and the more people who falsely claim they were hacked, the less valid the defense will be in instances where it actually occurred. We discuss a case in Maryland in which the court found that authentication of social media evidence is imperative.

17:45- Charley finds that Maryland case interesting. He says it proves, even as interconnectivity with technology increases, we’re still leaning on tried and true evidentiary techniques. Sasha asks what sort of laws currently govern social media and the privacy issues surrounding it. Our expert says that Congress has actually been recently debating those very issues, while the Do Not Track bill in California just stalled with a 16-16 vote a few weeks back. In other words, these law are being written as we speak. Social media will likely push to have very little changed, while Europe seems to be pushing forward with more stringent privacy controls.

21:00- Do privacy settings actually matter in court? Brad gives us the classic law response: “it depends.” He recalls a case in California where privacy settings held up and one in New York where they didn’t. He cautions that a lawyer can pretty much always find a way to get social media into evidence so if you’re worried about that potential, you should avoid posting incriminating information. Brad has seen this evidence used in all manner of cases from divorce to intellectual property to defamation.

26:18- Brad’s take away tip? “Don’t be a Weiner.” Anything you create online could be used against you at some point. Be smart about what you post. Your privacy settings may not help you keep anything private.

27:56- And with that, it’s Rocket Docket time. Our question this week concerns whether social media should be admissible in a court of law. Sasha says, as a personal user, she wishes it wouldn’t, but as a citizen, she understands the necessity. Charley agrees and he disagrees. He thinks we should treat social media as we treat other evidence. An example? We should treat online photo albums the same way we’d treat a photo album in someone’s home. It should be subject to the same evidentiary laws.

What do you think? Should what you post online be admissable in court? Are there any exceptions? Tell us about it on our Facebook page, via Twitter, or in the comments below.

Thanks for joining us!

Related articles

• Social Media: Why “Private” Isn’t Private (legallyeasy.rocketlawyer.com)
• Legally East Episode 28 — The Curious Case of Anthony Weiner (podcast.rocketlawyer.com)
• To Tweet Or Not To Tweet, That Is the Question (sociablelawyer.org)