Facebook Posts Mined For Courtroom Evidence

littlekorea writes "Defense lawyers are increasingly gaining permission from US courts to mine the private comments and postings on Facebook accounts to be used as evidence during trials. The first example — noted in Slashdot in September — has given way to an avalanche of new cases — and a worrying precedent that judges consider social networking content to be public data."

Comments

Well Yea

[satanicat]

I dunno, regardless of where you post, I've been brought up to believe that anything you submit online should be considered no more secure than whispering it into someones ear...

Re:Well Yea

[Anonymous Coward]

Whispering into someone's ear is pretty safe. Even if they rat you out, it's your word against theirs.

The words go out into the air and no one hears them again.

On social networking sites it's permanent.. which is why everyone should use image boards?

Re:Well Yea

[FuckingNickName]

The evidence you have that no logging and warranted monitoring occurs on image boards is...

Re:Well Yea

[Anonymous Coward]

Whispering?

Seriously, putting something on line is like shouting it at a crowd of paparazzi.

Maybe it's the rise of "reality television" where people's lives are aired for entertainment (or notoriety depending on whom we are discussing). The young may see this as a way to either get their 15 min of fame, or use it as a launchpad for a poorly conceived career exploiting bad behavior....IDK.

Re:Well Yea

[Kjella]

Yes well, except there's a third party that you don't normally consider that is storing all those whispers. If I send a SMS, the phone company doesn't keep a copy. If you call someone, the phone company doesn't keep a recording of it. At least before when I downloaded mail the server didn't keep it, that's less relevant now though since I use a webmail host. But if you message someone on Facebook, they do keep a copy forevermore. Or at least until the recipient deletes it, which may be never.

Re:Well Yea

[frozentier]

Yes well, except there's a third party that you don't normally consider that is storing all those whispers.

I thought we all learned a long time ago to assume that our conversations (and data) are stored somewhere by someone. Twenty years ago there were cases of private e-mails being read and distributed among office workers. People were even getting fired and sometimes divorced over it. That established what our expectations of "electronic privacy" should be. Now it's no different. In fact, joining a SOCIAL network, you should expect information is going to be shared. That's what a social network is.

Re:Well Yea

[csteinle]

If I send a SMS, the phone company doesn't keep a copy.

Oh yes they do.

Re:Well Yea

[rhsanborn]

The former mayor of Detroit, now a convict, Kwame Kilpatrick begs to differ:

http://www.slate.com/id/2183399/

Re:Well Yea

[JWSmythe]

      It's more like, anything you post online is as private anything you write, photocopy, and send to a few hundred people.

      I posted on my Facebook wall a little while back, that anything I write online is disinformation. I know the information is datamined. It will, at some point, be shared with someone you don't want it exposed to. There is a chance something I post is factual. It's true, right down to where my location is.

    My fictional online persona has had me drifting around various government facilities and and other remote locations (Rachel, NV; McLean, VA; Fort Meade, Maryland; Wild Goose Chase, Woombah, New South Wales, Australia; etc). Then sometimes I give my real location. Most are virtually impossible to confirm. If I were were at the NSA headquarters, is there any expectation that a random person trying to find me could ask the guard "Is Mr. JW Smythe here?" The response would range from prolonged laughing, to detainment and questioning.

    It's not just what I say about myself either. Bouncing through various proxies around the world, if Facebook were subpoenaed for something as simple as the list of IP's that I accessed from, it would be a nonsensical pattern of locations. In a day, I may log in from Moscow, Beijing, London, Paris, New York, Los Angeles, or Brasilia.

    If I already admitted that most of what I post online is a lie, and any of it was brought up in court to prove anything about me, the judge would would get tired of any line of questioning that related to my online statements, simply because I do, and frequently repeat, that many are complete works of fiction, dressed loosely as fact.

    So ya, when I go off on a government or alien conspiracy rant, it isn't because I necessarily believe it. Maybe I do. Maybe I don't. Maybe I've considered writing fictional books, and haven't had a real inspiration to sit down and write hundreds of pages of my best bullshit^H^H^H^H^H^H^H^H fiction, to submit to publishing houses and receive the string of rejections, possibly followed by one acceptance, and then have my had word become a $9.95 paperback that I'll find in the $0.50 clearance bin in just a few years. Dejected because the publisher made so much money from me, and for all the hoops I jumped through, I only made a few thousand dollars. Sad and dejected, I sit in my beachfront shack in Cuba. I admire the waves rolling in, and beautiful women on the beach, hoping an approval letter finally comes in, while I churn out more pages of mediocre fiction, knowing that the cycle will repeat endlessly until I die in a few years, with my family not caring where I went, comfortable in the idea that I went with a smile on my face and a local prostitute riding me to my final moments...

    Or maybe, just maybe, a good bit of what I write is pure fiction. Data mine that!

Re:Well Yea

[rjstanford]

Why? Seriously - why go to all that both to "hide" something that nobody really cares about? Why not just not post of Facebook if you're that "concerned" about it? I mean, we've most of us moved a bit beyond Junior High haven't we?

Re:Well Yea

[Kjella]

I thought we all learned a long time ago to assume that our conversations (and data) are stored somewhere by someone. Twenty years ago there were cases of private e-mails being read and distributed among office workers. People were even getting fired and sometimes divorced over it. That established what our expectations of "electronic privacy" should be. Now it's no different. In fact, joining a SOCIAL network, you should expect information is going to be shared. That's what a social network is.

LIFE is a social network. I guess you should just set yourself up like some new JenniCam, since you seem to have abandoned any expectation of privacy already, but the rest of us haven't. In particular that there's such a thing as private communication. In your fucked up world there's no such thing, since every communication requires more than one party. If you've told one, you've told the world. If one person has seen a private photo of you, then everyone has.

That said, properly issued warrants have always taken precedence over privacy. With them they can search you, your house, papers, effects and everything else the fourth amendment normally protects. The difference is that lots of things that used to be ephemeral are now preserved as bits and bytes on a computer somewhere.

Re:Well Yea

[Xyrus]

Yep. If you don't want you're secrets to be social, don't post them to a social networking site. Better yet, don't post them anywhere on the internet. Someone, somewhere will find them, and usually it's someone you don't want to have your secrets

You'd think that would be obvious by now.

Re:Well Yea

[Anonymous Coward]

If I send a SMS, the phone company doesn't keep a copy. If you call someone, the phone company doesn't keep a recording of it.

Yeah right.

Re:Well Yea

[ifrag]

The post is a lie... At least that's how I read it. That's the whole point isn't it? Online evidence is questionable at best and downright wrong at worst. The fact that you responded like you believed what he wrote only proves the point.

Re:Well Yea

[mark72005]

They most definitely do store copies of those messages. These records can be subpoenaed and used in a trial like any other telephone records. Many, many examples exist.

Facebook and such, I feel, should be considered public if you have any common sense. Search engines are caching this stuff, it's backed up on volumes all over the place, it's transmitted to others' computers and mobile devices.

Especially if you are one of those who doesn't bother to have privacy settings locked down, I don't feel that we have any reasonable expectation of privacy on facebook and I think judges will continue to interpret things that way.

Re:Well Yea

[JWSmythe]

You definitely got the point. I could have been lying. Since I was talking about how I lie online, it could safely be assumed that I was lying, which would then mean that either I don't lie online, or the post was complete fiction, but the fiction would mean that I told the truth. :) I'll assure you, I'm not a depressed writer living in a shack on a beautiful Cuban beach. I'm probably not at the CIA or NSA headquarters, nor Area 51. Then again, maybe I am. :)

    I think it would be hilarious if I was asked about my online personas in court, and the questioning followed what I claim online.

Re:Well Yea

[airdweller]

"If I send a SMS, the phone company doesn't keep a copy. If you call someone, the phone company doesn't keep a recording of it."
Are you sure?

Re:Well Yea

[mustPushCart]

Although this is modded 'funny' cant i do something like this? Post on my own wall once and for all that whatever i say here should not be taken as absolute or even near truth and should not be taken seriously. Whatever i say may or may not reflect my own view and may or may not be fact or fiction.

"i killed someone"

(is there a lawyer friendly way to phrase the above?)

Re:Well Yea

[Hotawa Hawk-eye]

The analogy I heard is that anything you send via email (and I suppose this generalizes to Facebook, Twitter, etc.) is as secure as if you wrote it on a postcard and sent it to the recipient.

Re:Well Yea

[the_hellspawn]

Yes, trust someone you have never met in real life that all data is not logged or stored in some other place. Also just trust that person who tells that all data is removed after page X with not giving access to outside agencies that have party vans. One last thing, just trust the person with blocking all the scrape sites that gobble all conversations, posting, and pics for you image boards. Copy-Pasta is alive and well in the internetz.

I really hope you are kiddin'

Re:Well Yea

[jc42]

... Sad and dejected, I sit in my beachfront shack in Cuba. I admire the waves rolling in, and beautiful women on the beach, hoping an approval letter finally comes in, while I churn out more pages of mediocre fiction, knowing that the cycle will repeat endlessly until I die in a few years, with my family not caring where I went, comfortable in the idea that I went with a smile on my face and a local prostitute riding me to my final moments...

Heh. Very nice.

I've long had a number of FAQs on my site, that I cycle among randomly. I've thought of adding code that picks one at random, but I've never gotten around to it.

The one that gets me the best replies is my admission to what I'm doing here on Earth: I'm actual a visiting anthropologist, studying humans. I go in to an explanation of why it turns out there's no "non-interference" police that prevents me from openly admitting this. Experience shows that, even (especially?) when you're completely honest about such things, humans invariably think you're just kidding or making up a fictional story.

So I can be as open as I like, secure in the knowledge that people will at most chuckle at my story. It helps that there's enough variability in humans that it's fairly easy for "humanoid" aliens to disguise themselves as human. And most humans are so unaware of their surroundings that it doesn't actually take a very thorough disguise, since humans rarely examine you in any detail. This is especially useful among us "visitors", since we can easily identify each other at sight, while the humans around us think we're also humans.

Now that humans have the Internet, we also know that it's quite safe to talk about this online, for all the same reasons. It's even harder for humans to identify aliens online, since there's little in the written forms of human languages that's a good tipoff. It does help if you mispell a word or two in everything you post, to add to the human image.

Re:Well Yea

[JWSmythe]

    I posted this:

For those who wonder, I'd like to remind you that my online presence is completely for disinformation purposes. Anything that may appear to be truthful probably isn't, and items that seem impossible could be true.

I'm not paranoid, but I know those who would like to find me. I prefer them looking in places that I'm not. If I'm in the US, you can likely eliminate one of the 18,500 cities.

    Your quote "I killed someone" can be taken many ways. If you are a murder suspect, and posted it just after the murder, that's bad. It could relate to a video game. I slaughtered an entire base full of people. Not that I really harmed a single real living creature, nor do I intend to. If it were stated outside of a human context ("I killed the bastard"), it could have been a fly, or a mouse, or some inside reference to something else, such as you made a "bastard burger", consisting of 10 pounds of hamburger, and other assorted goodness. "killing" the "bastard" would mean that you are the whole thing, and you are now being rushed off to the hospital. :) ... and back to my statement, there are some folks trying to find me. Not cops, thugs, or hitmen. Just casual annoyances. It's easier for them to not know where I am, than to publicize anything factual. Online acquaintances don't really need to know where I am, unless they'd like to come visit. If they're invited to see me, they'd already know where I really am.

Re:Well Yea

[NotSanguine]

Long before social networking sites were a twinkle in their creators' eyes, good sense dictated that nothing should go into an email that you wouldn't want to see on the front page of your local newspaper. As far as I can tell, that goes triple for social networking sites.

Re:Well Yea

[HungryHobo]

My hard disk I consider private, the inside of my mailbox I consider private(and I don't like that this one has been eroded somewhat) but what I post on a social networking site is almost by definition not private.

I'm shouting it to the world or at least to a big crowd of people who have every right to keep their own copies through a third party who by design has to have a copy.

Your facebook page is not private.
If you want something to stay private don't stick it on your facebook profile.
It's really easy.
If you're going to court don't stick comments up on facebook reading
"heh! I am so conning those guys good, and the judge is guillible enough that I've got him hook line and sinker"

Just like it's not a good idea to post the same up on your local community noticeboard or on the wall of a clubhouse.

Re:Well Yea

[Duradin]

Never write when you can talk. Never talk when you can nod and never, ever, put anything in an email. -Elliot Spitzer

Re:Well Yea

[Anonymous Coward]

Admit it, you wrote that from your mother's basement, and you are pretty much the opposite of online James Bond, you can't even avoid your mom when she wants you to take out the trash.

Which is quite a coincidence since I'm writing this from my mother's basement and she wants me to take out the trash right now.

Re:Well Yea

[sabt-pestnu]

The problem is, many people don't recognize something as a secret until after the fact.

Moreover, one person's secret is another person's everyday life is a third person's incriminating evidence. Many examples exist of photos on a facebook 'friend's page being the evidence in question.

Re:Well Yea

[Anonymous Coward]

I was brought up to believe that anything you post online is a private as anything you spray-paint on a wall or staple to a telephone pole. I other words if they can link you to the item then it isn't private.

Re:Well Yea

[Anonymous Coward]

But they do keep a copy of your text messages and also your picture messages. IT IS ALL LOGGED!!! Believe me I used to work for multiple phone carriers. But these things will only be accessed if a warrant for them has been issued (but it didnt stop us looking at your picture messages!!! "for troubleshooting purposes" of course), since then the carriers have locked the systems down considerably, but rest assured its all logged somewhere, waiting for the day a judge asks for them to convict you!

Re:Well Yea

[beerdini]

You'd like to think most of us have moved beyond Jr. High, but judging from the number of people on Facebook and what they post...No, we haven't moved beyond it.

Re:Well Yea

[atheos]

Whispering is still safe, that's just hearsay.

Re:Well Yea

[JWSmythe]

Hey, welcome to the planet. Have you been here long? You don't happen to have a working exit, do you? I've been stuck here for a long time. They commemorated my arrival with two coin coins (1 2), which was very nice of them. I never did get around to finding out what they said. I didn't actually land until I was on the next large landmass, that they now call "America". Well, land may not have been the correct term. Swimming for an Earth day to reach land, because my landing pod is at the bottom of the Pacific Ocean is more accurate. I was very lucky some locals some locals saw it, and came out with their small wooden boats to help me. They were an interesting bunch. Too bad relations didn't go so well with another indigenous group a bit later on.

    I'd ask where you're from, but in my travels I've learned it's impossible to know or have visited even a fraction of what's out there. The humans are starting to understand though. They've come a long way in the last 100 years. In the next 1,000 years, they should really start understanding their place in the universe.

    Even though I've been here a while, I'm still learning how to behave like one. The ones close to me are quick to identify that I'm not one of them, regardless of how well it seems I emulate their behavior. Thanks for the tip on spelling. I always thought their errors were due to their limited utilization of their available mental capacity, or due to their strange concept of different linguistic patterns by area. I wasn't aware that it was a cultural behavior to show their humanity.

    How is this? "The refraction of light through your atmosphere has rendered a very nice colour this evening."

Re:Well Yea

[dave87656]

What's an image board?

Re:Well Yea

[sglines]

So your signal to noise ratio is so low that it's imposable to pull a signal from the noise. What good is that?

Well...

[XxtraLarGe]

a worrying precedent that judges consider social networking content to be public data.

Aren't they?

Re:Well...

[Abstrackt]

No, private comments aren't public data.

Re:Well...

[commodore6502]

Not in the European Union:

ARTICLE 8

1. Everyone has the right to the protection of personal data concerning him or her.

2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.

3. Compliance with these rules shall be subject to control by an independent authority.

Re:Well...

[Anonymous Coward]

Legally they are not private. Once you tell a single person something it is no longer 'private'. Legally, private does not mean 'stuff you want to control', it means 'stuff no one other than yourself knows'.

Re:Well...

[JackOfAllGeeks]

Some might argue that sex is a social activity (especially if multiple partners are involved) but few would argue that this makes it public fare.

Re:Well...

[Lev13than]

Some might argue that sex is a social activity (especially if multiple partners are involved) but few would argue that this makes it public fare.

It is if you post the results on Facebook.

Re:Well...

[JackOfAllGeeks]

Legally, private does not mean 'stuff you want to control', it means 'stuff no one other than yourself knows'.

Citation needed, since you're invoking some special legal definition of private.

Re:Well...

[Anonymous Coward]

Are you saying that sex tapes have never been used in courts?

Re:Well...

[JackOfAllGeeks]

Some might argue that sex is a social activity (especially if multiple partners are involved) but few would argue that this makes it public fare.

It is if you post the results on Facebook.

Well played.

Re:Well...

[Lev13than]

Actually, your original point is relevant. In many jurisdictions sexual activity involving more than two people has no expectation of privacy, regardless of the circumstances.

In Canada this went all the way to the Supreme Court, which ruled in 2005 that if the adults are consenting and there is no "harm", any activity involving more than two people is a private matter and none of the state's business.
http://www2.parl.gc.ca/Content/LOP/ResearchPublications/843-e.htm#indecency

Re:Well...

[Culture20]

Not really, and the judges seem to actually be thinking of the conversations as private but non privileged conversations (unlike with your lawyer or your priest). Which is what they are.

Re:Well...

[demonlapin]

I think he meant to say "something in which you have a reasonable expectation of privacy" is something that you've told to nobody else. In which case, he'd basically be right. As a broad rule (and IANAL, so it's going to be a broad rule), as soon as you tell someone - anyone - some piece of information, you can no longer have a reasonable expectation of privacy in it. Exceptions may exist between you and your lawyer, but don't count on them applying between you and your doctor or priest.

Re:Well...

[gsslay]

If the court can subpoena the data it makes not one iota of difference if its public or private. It can be used as evidence.

Re:Well...

[demonlapin]

some other legitimate basis laid down by law

That's a legal loophole big enough to drive an articulated lorry through.

Re:Well...

[Asic Eng]

I don't think that "social" is by definition part of the public, no. "Social" could refer to communication within a group of friends, in which case it should be protected. On the other hand it's quite possible to post something on social networks so that it's accessible by all - that must be deemed public.

Obviously, when investigating criminal matters and with reasonable suspicion, the police have the right to investigate private communication as well. Just as they'd be able to get a search warrant to search a person's private papers. Normal evidence gathering rules should apply.

Re:Well...

[JackOfAllGeeks]

I think he meant to say "something in which you have a reasonable expectation of privacy" is something that you've told to nobody else.

Wikipedia is a suspect source, but according to them, a "reasonable expectation of privacy" is just what society at large would consider private. That includes more than just "things no one knows."

As stated by others elsewhere, though, this appears to be about discovery, in which case privacy isn't strictly speaking an issue. The Cops may not be able to search your diary/home movies/email without a warrant/probable cause, but it can still be sought as evidence if it could be pertinent to the case.

The title and summary are misleading; Facebook isn't being "mined" for evidence.

Re:Well...

[sabt-pestnu]

There are some exemptions (eg Kansas "penitent communications") for priests. But as I understand it, that merely means they can't require the priest to testify. It doesn't mean that (eg the prison) can't listen in.

Re:Well...

[sabt-pestnu]

> Facebook isn't being "mined" for evidence.

The images that produces...
... vast wastelands of strip-mined social networks...
... database collapses, trapping a dozen IT workers at work for hours...
... data leeching ponds polluting nearby news sources, requiring EPA-Internet "Superfund site" declarations...

Re:Well...

[mr_walrus]

it bothers me that a judge can issue orders of any kind based on a PRESUMED belief of privacy.
if the stuff is truly not private, no orders are needed to get it.
if orders are needed, then obviously it's private.

Helpful tip

[JamesP]

Treat all information posted on social networks as public

It is anyway, after a court order, or a systems invasion, or a dodgy employer.

Public data.

[Anonymous Coward]

I've always treated it as public data and it appears time and time again that this is how it should be considered.

Well ... for the most part

[CuriousGeorge113]

Well, for the most part, it is public data. The majority of facebook accounts are left on the default privacy settings, which means pretty much the whole world can see everything you post online.

I'm just failing to see the privacy implications. You post something on a public website, it's public information, and should be available in a court room....

Re:Well ... for the most part

[JackOfAllGeeks]

I guess the question is how "public" is Facebook? Facebook isn't as public as, say, Slashdot. If I gave you a Facebook URL, you can't just wander in there unless you're on the approved list (or do some manipulation). In that sense, it's more like an exclusive nightclub than a public park.

Re:Well ... for the most part

[jeff4747]

Conversations in an exclusive nightclub aren't private either, in the sense that they can be used in court too.

Re:Well ... for the most part

[aesiamun]

But that's not true. You can search for a name and chances are, if they didn't make any privacy changes, you can read whatever they posted on their profile.

Re:Well ... for the most part

[JackOfAllGeeks]

if they didn't make any privacy changes

And if they did?

I'm not arguing that things that are marked as Public are somehow Private, but I am saying that things which are access-controlled aren't Public.

Comments below note that this is about the Discovery process in a case, which changes the actual scenario a bit, but I don't feel it changes my point here.

Re:Well ... for the most part

[demonlapin]

You're confusing the everyday understanding of "that's private, only me and my friends know" with the legal term of art entitled "reasonable expectation of privacy". The two are quite different.

Re:Well ... for the most part

[JackOfAllGeeks]

You're confusing the everyday understanding of "that's private, only me and my friends know" with the legal term of art entitled "reasonable expectation of privacy". The two are quite different.

That's probably true; IANAL.

However, what I can quickly find online about "expectation of privacy" relates mostly to searches; since this is discovery, that's not really relevant. As someone elsewhere said, this isn't about Public vs. Private, it's about whether what's sought is relevant to the case.

The title and summary are misleading, I think; Facebook isn't being "mined" for evidence.

Well...

[Lev13than]

Isn't an activity that's labeled "social" by definition part of the public domain? I'm all for protecting privacy rights, but you have to be an idiot these days to think that logging into Facebook is anything other than an explicit waiver of those rights.

what's the diff?

[Anonymous Coward]

so what's the difference between my posts on facebook and posts in my gmail account?

serious question.

i've locked down my facebook account as much as possible so to my mind it's just another messaging system and i don't consider it "public" in the same way i would for a forum.

while i understand the fact that once something on the internet it's out of my control i don't think it's wrong to have an expectation of privacy when i've explicitly and actively pursued limiting my audience to a select number.

Re:what's the diff?

[alphax45]

Same - mine is locked down as well. Granted I don't live in USA (Canadian) but this does kind of worry me as well.

Re:what's the diff?

[XxtraLarGe]

i've locked down my facebook account as much as possible so to my mind it's just another messaging system and i don't consider it "public" in the same way i would for a forum.

How many friends do you have? If you post something on your wall and it's seen by hundreds of people, it's hart to call it non-public.

Re:what's the diff?

[Americano]

Very little. If the court issues a subpoenas your records, they'll get access to your gmail just as fast as they'll get access to your facebook.

People seem to think that prosecutors have some sort of magic login to facebook allowing them to read any post. That's not the case. If they want the records, they ask a judge to issue a court order that the records be made available.

If you don't want a court to be able to subpoena the records, don't put them on facebook or gmail or any other online service.

Emails can be subpoena'd

[boxwood]

how is this different? Oh wait it isn't.

Re:Emails can be subpoena'd

[fl_litig8r]

Your diary (as long as you didn't create it upon the advice of your lawyer -- making it work product) can be subpoenaed. Your personal photo albums that you never posted online and never showed to anyone can be subpoenaed. Whether your facebook postings are "public" isn't relevant. Discovery isn't limited to public documents. In fact, if it were, there would be no need for it. Of course, protective orders (judge limits what info can be obtained and/or how it is used) and in camera inspections (judge reviews the materials before they go to the requesting lawyer to weed out irrelevant or privileged materials) can be used to control abuse.

As you can see...

[Haedrian]

"As you can see your honour, the defendant is innocent.

This comment "I'm innocent" posted this morning has received 100 likes already.

I rest my case"

Re:As you can see...

[zildgulf]

Rebuttal, your Honor?

I have a Facebook comment that states the defendant is guilty as sin and that comment has 300 likes on that.

That beats consul's 100 likes, your honor.

The state rests it's case.

Re:As you can see...

[coolsnowmen]

And I object, I object that he interrupted me while I was watching OW! MY BALLS! Plus he talks like a fag.

Internet == Public Data ???

[rwv]

If you don't want some kind of information to be made public, don't post it on the Internet. Even if all your privacy settings are selected correctly in Facebook (so only friends can see your posts), there is no guarantee that one of your friends won't "re-tweet" (or whatever the kids are calling it these days) your personal information.

Re:Internet == Public Data ???

[JackOfAllGeeks]

This is true.

However, there's a bit of a differencve between an authorized user (your "friend") divulging your private communiques in a public forum, and some unauthorized third party reaching in from the outside and taking them. What's being discussed here is that latter case, not the former.

Re:Internet == Public Data ???

[Anonymous Coward]

i don't know that this has officially been decided and
encoded in the rules of evidence, but a retweet should
be inadmissible as hearsay.

Re:Internet == Public Data ???

[jeff4747]

It's a court. They are not unauthorized. They can authorize themselves.

Re:Internet == Public Data ???

[Anonymous Coward]

I agree. If you didn't say it and someone else says "hey he said this" there should be no way that should be entered into evidence. The security on Facebook is there for a reason. It is not public data. If that is the case, then the things you store on "the cloud" if you buy a new computer should be considered public data. who cares if it contains your tax information, social security number, where you live, your home security code, etc. I would never put things like that on "the cloud" or a webserver somewhere, but many people do and the companies supplying that maintain that it is very secure, not public data. Now if you go onto a forum like this and spout a bunch of crap that could get you in trouble, that is a different story. For example displaying the PS3's encryption keys, that will get you in trouble. :)

Re:Internet == Public Data ???

[JackOfAllGeeks]

They're personal-injury lawyers, who are unauthorized, requesting and recieving court-compelled authorization from the account owner. The question is less about authorization and more about whether it's proper for the courts to be compelling these authorizations.

Re:Internet == Public Data ???

[Asic Eng]

That's good advice to implement, but that can't be a basis for a legal position. It's sensible to use a high-quality lock on your front door, but if you use a cheap easy to break lock, the cops still need a search warrant.

If the content is set to private, then it's sufficiently protected so that a court order should be required.

Re:Internet == Public Data ???

[jeff4747]

Well, the court can also compel access to traditional letters, diaries, journals, etc. How is a FB page different than a diary you keep locked at home? The latter is far more private, yet courts routinely compel access.

Re:Internet == Public Data ???

[JackOfAllGeeks]

I concede the piont: the summary and title are, I believe, misleading. This isn't "mining" Facebook for evidence, and seems to be legitimate Discovery (rather than some kind of fishing expedition).

The courts can compel discovery if the particular items are believed to be relevant to the case in progress; they couldn't compel discovery of unrelated letters or journals, etc. Private vs. Public is only meanigful in the question of searches, not court discovery proceeedings, and I thought we were talking about the former.

Public they are

[mangu]

...but can they be used as evidence?

In a courtroom one must take an oath to tell the truth, the whole truth, and nothing but the truth. The standards for a social network are considerably lower in regard to accuracy.

Re:Public they are

[w_dragon]

Yes, but they aren't using them as sworn testimony (I assume). There's no reason not to treat them the same as a letter or diary that is entered as evidence.

Re:Public they are

[Richard_at_work]

Forensic traces at a crime scene dont have to swear an oath either, and they can be used in court as evidence - you seem to be misconstruing testimony and evidence.

Its quite simple - if the network in question can provide enough information to suggest "this account posted this text on this date from this address" and the lawyers can provide enough corroborating evidence to allow a reasonable person to accept that as a truth, then its good enough to be used in a court. If you dont want it used, dont post it - or dont allow a third party to hold it.

Re:Public they are

[Idarubicin]

In a courtroom one must take an oath to tell the truth, the whole truth, and nothing but the truth. The standards for a social network are considerably lower in regard to accuracy.

In general, the cases cited employ social-networking-derived evidence to impeach the credibility of plaintiffs. That is, defendants are comparing plaintiffs' statements and testimony made as part of legal proceedings to statements (and other evidence) they've posted on social networking sites.

The legal value of this information (as presented in the article) varies. It ranges from the somewhat plausible (one defendant claimed a serious injury cost him "the enjoyment of life", but described online a fishing vacation in Florida and a trip to the Daytona 500) to the utterly bizarre (a plaintiff argued that a defendant didn't really suffer "serious permanent personal injuries" because - in part - her MySpace postings still regularly include smiley emoticons).

Re:Public they are

[Vectormatic]

so now the plan is

1) murder person
2) immediately use your smartphone to remote desktop into your home computer, 4 hours drive away
3) post "OMG, so wasted LOL" with a pre-prepared (and timestamp rigged) pic of yourself doing tequila shots to facebook
4) alibi?

Re:Public they are

[CohibaVancouver]

...but can they be used as evidence?

"Mr. Jones, you testified that Mr. Smith has never been to Las Vegas, and he has never met you. However, Mr. Smith's facebook page indicates that on April 15th he was in fact in Las Vegas, meeting with you. Is this true? Remember, you're under oath."

Re:Public they are

[mangu]

if the network in question can provide enough information to suggest "this account posted this text on this date from this address" and the lawyers can provide enough corroborating evidence to allow a reasonable person to accept that as a truth, then its good enough to be used in a court

Normally courtroom evidence needs to do more than "suggest".

Things posted in a social network are somewhat equivalent of an unsigned typewritten text. The best you can assume is that this was written in a specific machine, not that it was written by its purported author.

Also, as in any informal document, you cannot assume that it was intended to be interpreted as the truth. People have been writing fiction, have been writing under pseudonyms for thousands of years and it has never been a crime to do so.

If people need to be constantly alert for the possible interpretations of their words we would be back to the Middle Ages, when anything you did could be considered as evidence of heresy and witchcraft.

Re:Public they are

[FatdogHaiku]

so now the plan is

1) murder person
2) immediately use your smartphone to remote desktop into your home computer, 4 hours drive away
3) post "OMG, so wasted LOL" with a pre-prepared (and timestamp rigged) pic of yourself doing tequila shots to facebook
4) alibi?

Well, I hope you never get accused of a major crime because you just crapped all over one defense strategy and also opened the door on malice aforethought...

Re:Public they are

[peragrin]

Your smartphone will leave logs/ traces that contradict your statements. Remember the phone and the towers it connects to are logged.

Better to drive 2 hours away setup a laptop with a script to log you in and upload your information at a preset time(it can be off by 15-20minutes). Steal a car do your crime ditch first car near crime scene. Have an accomplice drive you back to the laptop/car and party for real.

Re:Public they are

[Vectormatic]

even worse, i dont have a facebook account at all, now where will the defense get me an alibi?

Also, i dont live in the US, so whatever US judges are doing doesnt directly concern me

Re:Public they are

[davev2.0]

Public statements can be used as evidence, just as public pictures can be used as evidence.

The difference between testimony and what they are getting from Facebook is the difference between someone saying one was lifting bricks to pave one's patio when one said one could not work because of a back injury (that is testimony and requires the person to swear to tell the truth) and the defense showing a home video that was acquired by subpoena, one made of one paving one's patio. Or, written accounts of one's bad acts in one's own diary. Or, as happened here, a video of one and one's friends vandalizing homes and cars.

Evidence does not have to swear to tell the truth, people do. In this case, the person swearing to tell the truth is the person who gathered the evidence. But the evidence itself (Facebook postings, etc) speaks for itself.

Re:Public they are

[davev2.0]

Things posted in a social network are somewhat equivalent of an unsigned typewritten text. The best you can assume is that this was written in a specific machine, not that it was written by its purported author.

Um, no, not quite. Social networking sites generally do not allow anonymous posting. The post came from an account, and that account is associated with a person.

If there is a Facebook account that purports to be for person A, and has a lot of information about person, with posts from A's computer and pictures taken by and of A and A's friends with communications that appear to be between A and A's friends, it would be for the jury to decide if that account was really A's account. A's friends would be called to testify as to whether they believed the account belonged to A. It would be trivial to show that an account on Facebook belongs to a specific person.

It would be the same as a type-written letter which has been matched to a specific machine, owned and in the sole possession of a specific person, said machine having only said person's finger prints on the machine and that friends of said person have received letters written on the same machine.

Re:Public they are

[davev2.0]

The question in your comment may not be very convincing but consider the following:

"Mr. Jones, you testified that Mr. Smith has never been to Las Vegas, and he has never met you. However, Mr. Smith's facebook page indicates that on April 15th he was in fact in Las Vegas, meeting with you and there is a picture of you and Mr. Smith in front of the fountain of the Bellagio Hotel in Las Vegas dated April 15. How is this possible? Remember, you're under oath."

Something else to consider: who is on trial? Is it Mr. Jones or is it Mr. Smith? The Facebook posting is evidence and the testimony of Mr. Jones is denying that the meeting took place. If it is Mr. Jones who is on trial for something that happened to Mr. Smith, then his denial may not carry much weight. But, if it is Mr. Smith who is on trial and is trying to use the supposed meeting with Mr. Jones as an alibi, then the testimony of Mr. Jones will carry more weight.

Re:Public they are

[sjames]

Sure there is. People tend to tell the truth to themselves in their diary. I would say facebook posts to friends are more like crap you told the girl in the bar you wanted to pick up or fish story you told your buddies over a few beers. That is, likely to contain significant factual errors, mostly intentional.

Re:Public they are

[w_dragon]

Fair enough, but unlike whatever you told that girl in the bar they are lies in writing, there is no he said/she said/hearsay issues. There's still no major difference between facebook posts and anything else you put in writing and leave somewhere it could be subpoenaed.

Re:Public they are

[sjames]

Agreed that it isn't hearsay, but care is needed to make sure it is understood to have the informality of speech in most cares.

It isn't public, but it isn't private

[Anonymous Coward]

While I understand the knee-jerk reactions in comments so far that say "duh, it's online, it's not private" and "they do this for email, so no big deal"...

I don't give every person I can find a friend invite. I have a small circle of people I actually know, and are friends with. The interactions I have with them may be public due to their settings, but anything I post on my own wall is NOT.

If I wanted the world to see what I say there, I'd set my privacy settings so that they could. I don't want some octogenarian out of touch baby boomer deciding that the INTARWEBZ facebooks must be my podium to the world, so it's not private.

Re:It isn't public, but it isn't private

[Haedrian]

don't want some octogenarian out of touch baby boomer deciding that the INTARWEBZ facebooks must be my podium to the world, so it's not private.

Does whoever is selling your personal data to advertisers count as an "octogenarian[...]baby boomer"?

We all know its not private, friends or no friends. Don't put anything private in there. If you want to take drugs, kill someone, or drive a car without a license, don't put incriminating information there. Not so hard is it?

Re:It isn't public, but it isn't private

[Anonymous Coward]

No, it's not difficult to do that.

It also doesn't mean that the information present can't be used against me in some other way.

If I gave permission to 5 people to see the information, then by golly those 5 people should be the 5 that are permitted to see it.

Facebook just happens to be USED as a public forum by a plethora of people - it doesn't mean it has to be public all the time.

Can they obtain my personal diary, or a journal shared with friends? (IANAL) If it's a public journal, they don't need a subpoena - they can just read it directly. But if they can't see it at all . . . I'd call that, by definition "NOT PUBLIC".

Re:It isn't public, but it isn't private

[jeff4747]

Why did you expect more privacy rights from a post on Facebook than a real-life conversation with these people? If you only talked about [nefarious deed] in person, the people you talked to can be compelled to testify against you.

Re:It isn't public, but it isn't private

[jeff4747]

Can they obtain my personal diary, or a journal shared with friends?

Yes. They can even force your friends to testify against you about it.

Re:It isn't public, but it isn't private

[Anonymous Coward]

But then when they testify, they are using their own words, and recollections - not my direct communication.

This is about using my direct communication, and thus, me incriminating myself - I had a reasonable expectation of privacy in that communication, since it wasn't posted on a publicly viewable page. It was private - between friends.

Re:It isn't public, but it isn't private

[jeff4747]

No, the friends testify in order to authenticate your diary/journal. What you wrote would be used as evidence.

You only have 5th amendment protections against the government forcing you to incriminate yourself. If you voluntarily incriminate yourself to strangers, friends or most family members, you generally have no protection. (As with anything in the law, it gets complicated and varies between jurisdictions)

There is a very small number of people with whom you can have truly private conversations. 1) your spouse. 2) your lawyer. Conversations with clergy and doctors are generally private, but sometimes courts rule those conversations admissible. And if a 3rd party is present during any of these private conversations, generally the legal privacy is broken.

You'll note that "friends" does not appear anywhere in that list. Any conversations you have with friends, electronic, in person or on paper, are admissible in court.

next boom of worthless jobs...

[Anonymous Coward]

...just like the flood of "social media gurus" that promise that they will get you noticed on the web, should we now expect a slew of Social Media lawyers?

Re:next boom of worthless jobs...

[GameboyRMH]

I think all this social media crap is about to hit a bust point. I hope I'm right. I'm just kind of sad I didn't get in on the second web bubble.

Ask yourself This Question:

[Rinnon]

Can someone other than the person I am conversing with, read this exchange? That is to say, is this conversation readable by more than just the people taking part in it? If the answer is yes, there is a good chance this is not private data. That's my way of looking at it at least.

....next worthless job?

[chubachub33]

...just like the flood of "social media gurus" that promise that they will get you noticed on the web, should we now expect a slew of Social Media lawyers?

it's not about public facebook postings

[nomadic]

This isn't about publicly available information, it's about information you can't see unless you're on a person's friend list, or even private messages between two people. The defense attorneys are getting courts to compel the plaintiff to sign a form allowing them access, then attaching them to subpoenas. Still don't see what the big deal is, though, this is information that in online form you'd just get through a subpoena anyway.

Re:it's not about public facebook postings

[zildgulf]

I always follow the advice of "if I don't mind screaming the comment in a crowded theater full of my worst enemies then it is OK to post the comment".

Always assume that all of your Facebook comments can and will be read by everyone from now until the end of time itself.

A worrying precedent?

[MikeRT]

I have to wonder how daft some of these commenters and commentators are if they believe this is new. If you're a 15 year old girl and your little brother reads your diary and notices that you confessed to filing false rape charges against your neighbor, his defense counsel could seize the diary as evidence if the brother told them about it. There is no "right to privacy" under the constitution in this respect. You have a right to not incriminate yourself. You have a right to not be subjected to overly broad or general searches and seizures. You have no right to a special place where you can say and do anything you want and it's all off limits to the courts.

I'm all in favor of making it tough for the police to get initial access to the data. I can't believe anyone would be worried that this would happen in the middle of a trial in front of a jury.

Re:A worrying precedent?

[locallyunscene]

It's worrying to someone who is innocent, that they're going to get smeared all over the place with this data that may or may not be relevant to the case which is then going to be on the public record.

You're right though, if you're in court the state has to have fulfilled it's burden of proof to look into your private life. I disagree with calling social networking "public data" unless it's accessible without logging in as that person's "friend".

Re:A worrying precedent?

[Anonymous Coward]

But this is not how the legal system works in most cases. There are rules of evidence in place and a judge should keep it out of trial. OK, you say, then the attorneys can leak what they found to the press. A) How many people actually have to worry about that? B) If they do, their case may be thrown out or, at least, their attorney will be severally reprimanded for the release of information. Attorneys worry about this because they have to work with the judges again.

Re:A worrying precedent?

[Nidi62]

You have no right to a special place where you can say...anything you want and it's all off limits to the courts.

Unless you are married in the US, then you have spousal privilege. Although, I wonder, would that hold up if it were a private message sent on facebook between a husband and wife? Or would they consider facebook's storage of it as a 'third party", therefore voiding spousal privilege?

Re:A worrying precedent?

[Anonymous Coward]

But your analogy fails as these are simply fishing expeditions - there is no 'diary' with some compelling confession seen by another party and reported to police.

Re:A worrying precedent?

[DerekLyons]

It's worrying to someone who is innocent, that they're going to get smeared all over the place with this data that may or may not be relevant to the case which is then going to be on the public record.

Which is why we have things like rules of evidence and rules of relevance. The defense attorney already has all the tools he needs to prevent this from happening.

Re:A worrying precedent?

[Anonymous Coward]

You have no right to a special place where you can say and do anything you want and it's all off limits to the courts.

Actually, there is such a special place. It's called talking to your lawyer.

Generally speaking, anything you say to your lawyer can't be disclosed.

There are a couple exceptions, like telling your lawyer that you plan to commit a murder in the future.

But telling your lawyer that you committed a murder in the past is completely confidential.

Re:A worrying precedent?

[Anonymous Coward]

You have no right to a special place where you can say and do anything you want and it's all off limits to the courts.

People have some funny ideas about these things.

At my university, students tell each other that the cops "aren't permitted" to enter the student quad area, and so it's considered to be a safe place to openly consume drugs, for instance.

These clowns have been told many times that they're wrong, that the police have the exact same rights of access there as anywhere else, and that the only reason we don't see cops busting the dope smokers is because they have higher priority work elsewhere, but those students remain convinced that the quad is a police exclusion zone.

Re:A worrying precedent?

[Anonymous Coward]

In those cases suspicion exists first and then a reasonable search and seizure occurs. In these cases it's not necessarily obvious what the significance of the facebook data is prior to discovery. in other words the prosecutor is fishing and it's being repeatedly allowed because people are mistakenly stating that facebook is public data despite the terms of service stating quite obviously that third party access is a termination worthy offense. Many users feel that facebook communication, like email, is private, and therefore should be protected by the fourth amendment as much as your diary if it protected by a lock and key, would be protected by the fourth amendment if a search warrant was issued for your apartment for any other object.

The prosecutor should be free to use whatever is discovered from his own or any other account he or the police have access to. anything else should require a warrant or the cooperation of a known associate with access to that data.

Public data but what about....

[Anonymous Coward]

While I completely agree, what is on the internet is public domain (including this post) what I have issue about is other people placing your private info on the web, and you have no control over this. This defeats my personal efforts to have as few footprints on line as possible.

For example, a decade ago, a friend sent me a LinkedIn request. I quickly refused the request. To this day, my name and past employment are associated to LinkedIn. I didn't put my info out there, someone else did, and because I have no account to LinkedIn, I'm going to have to provide info to LinkedIn to get them to remove my data.

And with more and more companies requesting that you post your resume via the web, you're being forced to relinquish your right to privacy if you want any sort of work. Businesses are becoming only on-line entities, and if it's a product you require, you may only make your purchase through on-line transactions.

Now I would have to ask, if more and more banks press customers to "bank on-line" does this mean because it's data that we once again lose our right to privacy?

Sadly, I would have to say yes. This is why I'm finding these rulings by judges to be too open ended. The more the public is using the web as a form of business and communication, the more the system of law needs to consider privacy issues of the people in what is reasonable and what is not.

Re:Public data but what about....

[Americano]

There is a right to privacy in your financial records.

There is no right to not be subpoenaed. If your finances are relevant to your court case, then the court can issue a subpoena for those. Same applies to facebook.

If you post it on facebook, it may become public through the actions of another. If you post it on facebook, it may still be subpoenaed by a court even if it's so private that nobody on facebook has ever seen it. "Privacy" does not grant you some sort of immunity from prosecution and subpoenas.

Re:Public data but what about....

[mlts]

You hit the nail on the head. When I graduated college and started looking for work, when HR people asked what my Myspace/FB/Twitter/LinkedIn accounts were, and I told them that I had none, I got told, "Why should we hire you? By not having a presence on social networks, you have shown yourself to be a fossil with no ability to adapt. No FB account is just as bad as not having an E-mail address." Even when I remarked that having an admin who doesn't spill his/her guts for the world to see if a good thing, I got the glazed-eyes look from the HR droid, and the "thank you for letting us interview you, don't call us; we'll call you" crap.

This happened during interviews for a few times until I created dummy profiles on the networks with a random article or two, so they didn't look blank.

So, unless one is getting a job as a door to door vacuum bed salesperson, a lot of employers I have personally encountered don't just want to know that you are on social networks, they actually ask your user IDs to see your public profile. A guy who graduated with me actually had to have his employer added onto followers/friends as a condition of employment. (Even though it technically is a TOS violation, he ended up keeping two sets of accounts, one under his name, one under his AKA.)

With job seekers essentially having to have a social media presence, it would be nice that some privacy laws other than, "if it is on the service, it is searchable and usable in criminal/civil courts" would apply. But realistically they don't, so one always has to remember that, when writing a post, assume there is someone there reading it who wants to stick handcuffs on someone, or sue into bankruptcy.

Re:Public data but what about....

[Lumpy]

and if you DO have online social junk you ALWAYS create two on each.

1 is your professional side you keep professional and squeaky clean.
2 is your nasty dirty real life one that has NO information to link the two.

My twitter and Linked in are super professional.
My facebook is my personal and has ZERO info to link me to it. my real name is not there only my nick-name that is changed a bit so it's not easy to grep if you knew it.

If you Google my real name all you get is professional stuff of mine and some smattering of line noise (no I'm not a drummer for a punk band, and I am not missing in Iraq) It's called maintaining your reputation, and for some reason college kids cant understand this. You will not get that Marketing director job if they find photos of you doing keg-stands while taking a bong hit, It's the equivalent of getting "EAT ME" tattooed to your forehead.

Hacking Facebook to Plant Evidence

[OneThousandOneWebs]

And how can anyone prove that account has not been hacked in order to plant "evidence"? By those standards Mark Zuckerberg is guilty of promoting the ‘social business' philosophy of Nobel Price winner Muhammad Yunus, no?

Re:Hacking Facebook to Plant Evidence

[jeff4747]

You are welcome to bring evidence of such hacking to discredit "your" post.

Re:Hacking Facebook to Plant Evidence

[OneThousandOneWebs]

Maybe I didn't explain it well. If Facebook posts are being used as evidence to incriminate someone, then by hacking that someone's account and posting illegal stuff on his/her behalf, that someone could get into a lot of trouble. How can Mark Zuckerberg prove he didn't post himself that ‘social business' stuff linking to Nobel Price winner Muhammad Yunus? What f it had linked to illegal stuff, is he responsible for that, since it originates from his account?

Re:Hacking Facebook to Plant Evidence

[jeff4747]

How can Mark Zuckerberg prove he didn't post himself that âsocial business' stuff linking to Nobel Price winner Muhammad Yunus? What f it had linked to illegal stuff, is he responsible for that, since it originates from his account?

In such a case, the prosecution would presumably make the claim he posted it, since it was on his account. In a real case, they'd also provide evidence to back up that he posted it - such as the logged IP was from his office.

The defense would then provide evidence that his account was hacked. Say the logged IP was from Bulgaria and Zuckerberg wasn't in Bulgaria at the time. Alternatively, they could provide indirect evidence that he did not make the post. For example, he was in a meeting, or on a plane at the time the post was made.

It would be up to the jury to decide whether or not to believe that the post was legit or a hack.

Re:Public

[TaoPhoenix]

Well,

I'd consider "private" comments behind logins and passwords and invite-only friends lists to be "private". I'd think it is the same category as when you're not supposed to be recording people's phone calls - Facebook is succeeding getting people to "open up" because it's "private".

If courts are going to go all miranda on your "private" posts, then there's another ratchet in the big engine of the police state.

What does 'public' have to do with anything?

[Nevo]

Since when can the courts only use 'public' information as evidence? This whole thread is based on a flawed premise.

Re:What does 'public' have to do with anything?

[mounthood]

It's not a "flawed premise" but an acknowledgement that the internet is changing things: People now write (or text) where they used to speak on the phone or face to face. Many political, religious and other opinions used to go unrecorded, and even now people use false (or partial) names to avoid exposing their sentiments. The courts may be playing by the same old rules, but the internet has changed what's available. Maybe the rules of evidence and exploration need to be changed for the new environment, similar to Copyright.

Re: say and do anything you want

[Anonymous Coward]

You have no right to a special place where you can say and do anything you want and it's all off limits to the courts.

Except in conversations with your solicitor (lawyer, counsel, advocate, whichever term applies) and in many jurisdictions in confessions to a priest, among other.

Darn

[Anonymous Coward]

What am I going to read if people stop posting silly personal sh*t on Facebook ?

vet this stuff

[TaoPhoenix]

Combo-Expert gamers needed to vet this stuff! (My own viewpoint comes from a MTG background, but I'll accept MMO/other analogies as well.) We keep getting these weird little pieces of trouble, and the media seems to deliberately ignore the effect of batching them up.

Remember last month's entry that someone wanted Facebook to be the Gateway to the Web?

Really, what we have is a giant case of world wide Cabin Fever, that effect that used to drive people into crazy things from lack of perspective. Except because through the net we're "all staring at each other", it's structurally here until some watershed event changes our take on things.

Private doesn't matter

[gnasher719]

This was discussed before, and again there is a deep misunderstanding what is going on.

This is about people suing a company, for example after an accident, to get compensation. This turns into a court case, and in a court case we have discovery. In discovery, both sides have to turn over relevant information. Whether that information is private or not doesn't matter one bit. What matters is whether it is relevant to the case or not. If you went to a restaurant, and claimed that you became impotent after eating their food and sue them for damages, then some very, very private photos could be relevant to the case and would have to turn over.

If you claim that you are unable to walk because of an accident, then the company you sue can rightfully demand that you turn over private videos that show you playing beach volleyball in the nude after the accident because it is relevant to the case. That's when the evidence is in your possession. If the evidence is in someone else's possession, then they still can rightfully demand the evidence. You have the right to refuse to help them; in that case for example Facebook wouldn't turn over such evidence, and the court would assume that the evidence that you withheld would speak against you.

Re:Private doesn't matter

[Hatta]

If you claim that you are unable to walk because of an accident, then the company you sue can rightfully demand that you turn over private videos that show you playing beach volleyball in the nude after the accident because it is relevant to the case.

That is, if they know you have a video of yourself playing beach volleyball. Suing someone doesn't give them carte blanche to rifle through your collection of home movies, nor should it give them carte blanch to read your personal conversations.

Re:Private doesn't matter

[Anonymous Coward]

No it could not, lack of evidence is not evidence.

Re: say and do anything you want

[statusbar]

Hmmm.. So if a real Priest put a "Private Confessional Booth" on facebook, would the confessions be private?

I'm doing this right now

[kronosopher]

About a year ago I lived in an two-bedroom apartment with two other people. My first roommate let the second move in the downstairs living room without consulting me. Eventually I agreed under the condition that the new roommate would pay us $300/mo, of which I'd receive $150. The new roommate turned out to be a total degenerate psychopath, who routinely stole from us and never paid his rent. He was also disposed to episodes of violence, rationalizing his behavior as a type of entertainment at our expense. After about 6 months and a sequence of increasingly severe incidents, I eventually drove him out.

Both my original roommate and I decided from there that we would keep as far away from him as possible, despite having a number of mutual friends. As much as it would have been utter ecstasy to see him in jail, we came to the conclusion that he would eventually destroy himself without our help and left it at that.

Ever since then, said individual has posted numerous messages on Facebook explicitly threatening to murder us. This culminated in a particularly threatening message last week where he stated something to the affect of "we better watch out, he's coming for us." Both myself and my former roommate have decided that despite our desire to remove ourselves from the situation, we cannot ignore it any longer and have contacted a lawyer. Our lawyer has arranged a preliminary hearing next week where we and a number of friends will testify as character witnesses and using his Facebook posts as evidence hopefully can convince a judge to incarcerate him.

Re:I'm doing this right now

[Anonymous Coward]

Yeah dude - in the U.S it's called 'Terroristic Threats' - call the police immediately and he will be arrested. My wife works in the county attorney's office and sees this crap all the time.

Re:I'm doing this right now

[Anonymous Coward]

...or was it something like this...

You better watch out,
You better not cry,
You better not pout,
I'm telling you why,
Psychopath is coming for you...

Seriously a friend is not a friend if they are still friends with that dude. Time to find some new one's and quite using Facebook.

Re:I'm doing this right now

[Anonymous Coward]

Post a fake obituary and disappear for a week or so. Not to hide from him, but strictly for the lulz. I wonder if he'd end up in jail.

Re:I'm doing this right now

[rednip]

So, six months of passive aggressive maneuvering has driven a man from his home (a.k.a. your living room), now he's pissed; I wonder how that happened. While statistically, it's most likely that he's just blowing off steam, it's never a good idea to ignore a threatening message. However, I wouldn't count on a judge sending him to jail (unless he is already on probation). Either way, I suspect that he will hate you even worse, sorry.

Re:I'm doing this right now

[Anonymous Coward]

If he is a sociopath, in the real sense, and it sounds like he is, then there is nothing else they can really do. 6 months of obsessively attempting to communicate threats and trying to secure their attention for the purpose of fear for that length of time is definitely out of the bounds of "normality", statistically. This must be dealt with as swiftly as possible or he can become a very real threat to not just them, but others as well.

Re:I'm doing this right now

[horza]

Doubt they will incarcerate him, but you should be able to get a restraining order. It's good you went the legal route rather than taking more direct action. Back on topic, how did you see those messages on Facebook? Did you not un-friend him after the first death threat?

Phillip.

Re:I'm doing this right now

[Anonymous Coward]

Now his defense team gets to use your Slashdot post in his defense. You had it in for him when you first met him.

Re:Public

[jeff4747]

Did you think your friends could not be compelled to testify against you?

There's only 3 people you can talk to who can't be forced to recount the conversation in court: Your doctor, your priest and your spouse. Posting on Facebook never granted new privacy rights.

Why did you call a lawyer?

[multipartmixed]

I don't know where you live, but in Canada, this constitutes uttering a death threat. This is a serious matter -- you call the police, they arrest him.

Re:Why did you call a lawyer?

[Anonymous Coward]

Sounds like a lawyer is a good idea - they'll want someone on their side to make sure the cops actually do their job.

Re:Why did you call a lawyer?

[zildgulf]

Because here in America, although a death threat is a potential felony in most states, the police response to such threats can vary between completely effective all the way down to "I don't care", and even worse, to looking at you for dirt for them to fabricate a story that makes you look like a potential suspect (i.e. blame the victim cubed).

Here is it always a good idea to talk to a competent lawyer before getting the police involved if possible.

Re:Why did you call a lawyer?

[Anonymous Coward]

That's not how it works in the US. I can threaten to kill just about anyone I like... and the cops won't do anything until you have been battered (actualy physical contact). Anything less that that won't get you anywhere.

What's more insane is that if I punch a guy for threatening to kill me, I will go to jail. Same if my wife uses every hurtful word in the dictionary... whoever lays the first fist gets in trouble.

This was also true in the military. It was funny because there were guys that were basically bullies because they knew if you stood up, you would be the one with an Article 15.

We are a bunch of pussies. We have decided that we never want to be punched in the face for the outrageous things we say.

Re:Why did you call a lawyer?

[nomadic]

Yeah, I had the first impulse too, "why did you call a lawyer?", and I AM one. The problem with guys like this is they are not always the greatest respecters of civil court restraining orders.

Re:Why did you call a lawyer?

[Anonymous Coward]

Yep; where in the world would this be a matter for which you'd call a lawyer? This is criminal, plain and simple.

Public != Subpoenable

[mbone]

IANAL, but emails have been subpoenable for a long time (except for lawyer-client and doctor-patient communications) and I see no reason why (say) Facebook posts would be any different. That doesn't mean that they are public, just that a judge can authorize lifting the veil.

Re:Public != Subpoenable

[davev2.0]

Exactly. One's right to privacy ends where another right to justice begins.

No Secrets in Court

[Anonymous Coward]

I was involved in a court case where the defense subpoenaed the plantiff's psychiatric records. So to the people saying that doctor-patient relationships are somehow immune to being brought up in court, you're wrong. The only steadfast principle is that

This news story is silly and wouldn't be one if people understand the way litigation works.

Re: say and do anything you want

[drinkypoo]

Hmmm.. So if a real Priest put a "Private Confessional Booth" on facebook, would the confessions be private?

No, because they would have already been made to Facebook, and any reasonable person should expect that Facebook will leak all their "private" data all over the internet.

Unlike

[ks9208661]

Unlike! Dang, there's still no Unlike button...

There's no excuse

[supersloshy]

Well, yeah... You sign up for Facebook and everything you post there is on Facebook's servers. Why wouldn't they allow incriminating data to be searched for by the authorities? If you do something illegal (depending on your local definition of illegal of course, which may or may not be a good definition) and you put it on Facebook of all places, there's no excuse. I'd expect decent criminals to be smart and make sure it's not so easy to be caught... right?

Why do people agree to use real names on FB?

[dennish00a]

I think that part of the reason FB appears relatively frequently in such stories is the ease of associating FB information with real names. I am fascinated and amazed by the success FB has had in getting people to use their real names. I don't know if it is a generational or personal thing--but I just wouldn't put my real name out there like that. The fact that 500,000,000 people have apparently done that is mystifying to me. I'm not saying that I need to be totally anonymous, but I much prefer the quasi-obscurity of an online handle.

Re:Why do people agree to use real names on FB?

[networkBoy]

Ironic no?
I use my real name on FB as well. The difference is that I guard what I post and who I friend very very closely. Largely I'm on there so family can find me (we're spread over the globe), other than that I don't use it for anything.
What worries me are the people that use their real names *and* spew loads of rather personal info into a public forum.
-nB

It's pretty simple isn't it?

[epp_b]

If the information is available publicly (ie.: without signing into Facebook or conning your way into a friend-request acceptance), it's public. If it's marked as private, it's private, unless permission is otherwise given by the owner(s) of said information.

Does it really need to be more complicated than that?

Equivilence to "normal" conversation is worrying

[swb]

What's worrying to me is that we are making Facebook posts 'equal' with normal language and communication.

My sense from being 40 and using Facebook for a couple of years is that people are (like in any non-face-face posting/forum/communication) prone to posting things that they would not otherwise say.

Furthermore, I think the "culture" of Facebook rewards provocativeness and certain amount of outrageousness. A posting of "Woke up with a headache, showered, ate a smoothie and drove to work" would be ignored while "Woke up with a ringing hangover and on the drive just about got run off the road by some asshole that I wanted to kill" might attract responses.

The problem is that while both statements are right, the former more likely represents the person's actual life, general personality and likely attitude towards others; the latter represents a more "gonzo" version that will attract attention but doesn't really represent the person well.

I think this is different, too, than the usual "smoking a bong on Facebook" because that represents a real action, not just an exaggerated version of normalcy.

Re:Public

[bsane]

Exactly. People may be more prolific on FB than say writing old fashion letters to friends, but both could be used as evidence in court. The only change I see is that FB posts are easier to find and subpoena, but the privacy of the conversation hasn't changed at all.

Moral of the story?

[Lumpy]

Dont be a MORON and brag about your crimes online.

100% of all "hackers" that brag about their exploits get nailed.
100% of all thieves that brag about their exploits get nailed.

Keep your mouth shut. Cops catch crooks because the majority of crooks are stupid as a box of rocks.

You dont write down you exploits in your memoirs, you dont tell friends, you tell nobody, you never type it, speak it or think it.

Re:Moral of the story?

[demonlapin]

This, FTW.

Sad

[PNO]

It's sad that each new generation has to relearn this lesson over and over again. Nothing on the web is "private". It's too bad our species couldn't have evolved a genetic memory. Would eliminate so many "duh!" topics like this.

Re:Sad

[GameboyRMH]

Genetic predisposition to certain tendencies can work sort of like genetic memory, but it's useless unless people doing the undesirable thing fail to reproduce, and Facebook INCREASES the chances of reproduction.

Um, this is your reality check

[rickb928]

"and a worrying precedent that judges consider social networking content to be public data."

Define 'public'. Meaning those you allow to see it is the more accurate, and operative, definition. Even if that is one.

If you post on Facebook to your ONE friend, you might make a case that it's not 'public'.

If you post on Facebook to your TWO Friends, you are on more tenuous ground.

If you have more than TWO friends on Facebook, you are no longer so 'private'.

Benjamin Frankline once posited:

"Three can keep a secret, if two of them are dead."

I've read of several cases where facebook posts were used in court, to the significant disadvantage of the poster. Some of the examples are genuinely disappointing, and the complaints about abuse and lack of privacy are shallow and not convincing.

If you have a secret, you should consider keeping it a secret. Really. Postings on any retrievable media are going to be sought for, and if they are found, you're stuck with them.

Perhaps the most significant impact of the Internet and the eas of sharing information is in the area of public records, which before the Internet were actually anything but 'public'. Now court records, tax and real estate records, and more are a few clicks away. Turns out, 'public' records are not so appreciated when it's your ox that is gored. Not that this attitude is anything new.

Forget 'nothing on the web is "private" '. Nothing you write and leave somewhere else is private. Nothing you do in the presence of another is private.

I don't see the problem.

[JustAnotherIdiot]

People who do something illegal and are stupid enough to post about it on facebook deserve to go to jail for stupidity.

Re:I don't see the problem.

[Anonymous Coward]

People who do something illegal and are stupid enough to post about it on facebook deserve to go to jail for stupidity.

Just wait, someone is going to be labeled a "sex offender" for life because some lawyer convinced a court to compel the defendant to hand over
access to the private parts of their social media world or go to jail for contempt of court for as long as the judge wants with no recourse and they find
a picture of the defendant's children playing naked in the bath tub. Anyone over 40 probably has multiple pictures of themselves as children and of their children playing naked in the bath, but today about half the legal community will charge that person with trafficking in kiddie porn.

Re:I don't see the problem.

[GameboyRMH]

Yeah I know my grandmother has a huge stash of child porn just sitting there on her coffee table tray. Nobody suspects the computer-illiterate old lady...

Re:Public

[demonlapin]

Actually, it's just two: your spouse and your lawyer. Your conversations with your doctor and your priest may be private, or may not, depending on how a judge rules. Be careful out there.

Smoke signals

[Sir Realist]

Ohmygod! Information you send to your friends by scribbling in 6-foot-high letters on the worlds largest billboard is public? Who knew?

Next you'll tell me that my smoke signals aren't secure either...

Enemy of the State

[Requiem18th]

Enemy of the State said it best for the government the only privacy that's left is the inside of your head. Maybe that's enough. I'm pretty damn sure it won't be enough once we have mind reading technology.

faceBOOK?

[Anonymous Coward]

Okay, here is my thought on this.
If the RIAA goes after anybody for music infringement (be it valid or not) then why shouldn't everyone else be able to jump on the band wagon.
We are talking about face book here..right?
If the lawyers want to extract written text from a faceBOOK account then they should have to pay the author for the rights!
I'm just sayin...
It's your own autobiography through social networking what are you going to do with it?

Re:Public

[davev2.0]

And, your private diary can be used as evidence if it is subpoenaed.

Re:Public

[Anonymous Coward]

Your lawyer too.

This is not new nor is it news.

[davev2.0]

So many people here miss something very important. Almost anything, whether it is public or private, can be used as evidence in a trial, whether civil or criminal, if it is properly subpoenaed and collected.

Your diary, your Facebook postings, the contents of your computer and cell phone, and your mail, it doesn't matter what it is as long as it is properly subpoenaed and collected.

There is no story here. It has been like this for centuries. The court can order access to almost everything considered private.

Heresay

[Anonymous Coward]

How is this not heresay?
("A statement made out of court that is offered in court as evidence to prove the truth of the matter asserted.")
Maybe you were joking.
Maybe somebody hacked your account and said it.
Maybe you were lying to get a response from someone.
Maybe you were high.
So anything on your Facebook page is gospel in a US court of law?
When the hell did this happen?
So If I testify in open court "Suzie told me last week that she stole the money",
Suzie's attorney objects-"Heresay",
Sustained.

But some idiot types the same thing on Facebook and it's admissable?
B.S.

McLean, VA is a remote location?

[wiredog]

I went to high school there! On G'Town Pike.

...but it IS public data

[Palshife]

Why is it worrying that judges consider social media content public data? If you don't want someone to know about it, don't put it on a publicly accessible website. The Internet is not a toy. It's real life.

DEFENSE subpoena?

[bbsguru]

OK, I can see how the prosecution might want to use this kind of information in a criminal case. Makes sense, and all that. But the Defense?

"Oh, your honor, my client was playing Angry Birds at the time, and could not possibly have been at the scene of the crime. Yes, it was on a cell phone, but you can see he had already UnFriended the co-defendant at the time of the robbery..."

Re:DEFENSE subpoena?

[DragonWriter]

OK, I can see how the prosecution might want to use this kind of information in a criminal case. . Makes sense, and all that. But the Defense?

First, this isn't mostly about criminal cases, its about civil cases (where there is also a defense.)

Second, even in a criminal case, Facebook material could be useful to the defense. (In fact, any kind of evidence that could be useful to the prosecution could be useful to the defense, because any class of evidence that the prosecution could use to support the idea that the defendant committed a crime could be used by the defense to raise reasonable doubt, if nothing else by using the same kind of evidence pertaining to a different person to show that that other person could have committed the crime.)

I say

[McTickles]

it is high time that people stop using facebook and fuck them over by inserting useless data.

seriously how much more do people need to realize that Suckerberg and his goons are fucking them over and over and over again...

--
www.twilightcampaign.net

this is why...

[Anonymous Coward]

precisely why regardless of policy for the site i never use my own name on my entertainment social network sites
even with FB 1 should have 2 profiles
1. that is legit if you need a legit means of networking
2. is totally bull -- using your pron name based on like "bob kickbut" (note i made this name up if it is someone's real name no infringement or anything is intended)
    or something totally out there - and use an email address thats also with false info and isnt used on your resume's or anything that connects the 2 persona's

Divorcing Stupid People

[RobertB-DC]

It didn't happen in my case, but my attorney posted on her own Facebook about using Facebook in a divorce case. I don't recall the details, but I think the ex-wife needed to prove that her ex-husband was not deserving of joint custody with the kids. His Facebook posts went a long ways towards helping her case -- they were full of rants about "that bitch", and pictures of him and his new girlfriend in non-family-friendly situations. The judge was not pleased with the ex-husband -- and getting dressed up and talking purty in court doesn't mean a lot when you're known to be a thug IRL.

Obviously, the dangers of hacking a FB to make someone look bad are real, and judges probably don't know a lot about IP address tracing (even if it is something FB does, which I don't know). But for most of the family law cases out there, where it often boils down to he said vs. she said, Facebook is a dream for the good guy's (or gal's) lawyer. Not so much for the other side.

Why do they want Facebook posts to explode ?!?

[Anonymous Coward]

From Merriam-Webster dictionary:

mine [verb]

Definition of MINE

to place hidden explosive devices in or under (the troops hurriedly mined the field before relinquishing it to the enemy)

Synonyms booby-trap

Related Words blow up, bomb; ambush, snare, trap; attack

It most certainly is public

[Anonymous Coward]

If you use Facebook, everything you put into it is public. Facebook's made it painfully clear this is the case, so it's only you who thinks stuff you put in there is anything other than available to the entire planet for a fraction of a cent or a subpoena, or to anyone working at FB.

Stupid has a price

[beerdini]

This has been happening for a while. I've had some lawyer friends of mine ask me about some Facebook stuff as they are dealing with a custody issue where a mother wants more alimony from the father. The father's lawyers are mining the FB updates because every weekend that the mother has custody she is updating that the kid at wherever it was dropped off so she can go out with the girls, go out with they new guy, get drunk, whatever...

And I don't really have a problem with FB being used like that. If you're stupid enough to be using FB and post stuff like that out there you deserve what is coming.