Tag Archives: Twitter

White House Correspondence: Private v. Public or Paper v. Plastic?

MP900385809 The other day, I caught this article from Politico regarding House Oversight and Government Reform Committee Chairman (R-Calif.) Darrell Issa's desire to get his committee's hands on White-House-generated emails, Facebook posts and Tweets.  Nothing unusual about that, we would agree.  But therein lies the rub; he wants personal emails, Facebook posts and Tweets.

Let's put Issa's political motivations aside for a moment and look at this objectively.  I've certainly mentioned several times that the line between public and private is becoming more blurred by the day.  None of us helps the cause, do we?  We send public email from private accounts and private email from public accounts.  Many people use Facebook for both private and public purposes with no separation whatsoever.  Same with Twitter.

Hey, even in the accounting department, they know about the rules against commingling!  The problem is, it's so easy to circumvent what would be normal auditing protocols, isn't it?  And who wants to log into – and check – multiple accounts, anyway?  Besides, as an example, you can use your Facebook account to log in to other resources, so why not?  I could even do so to write this blog – if I had a Facebook account, that is…

That's what my headline means:  It matters little whether you choose paper or plastic; either way, you're still transporting groceries

From the Vault: e-Discovery 101: Twitter MySpace Away on Facebook

[This is the 1st time I've retrieved a post from the archives.  It was my 28th, from February 4th, 2009.  The reason I'm doing so is, this seems to be the most popular article I've written, in terms of republishing, anyway.  Maybe people just like the title.  I recently granted permission for it to be reprinted for an attorney malpractice CLE course in New Jersey April 26th, and it occurred to me; I didn't really have any subscribers back then, so it's likely almost none of you have ever seen it.]

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I've been looking at Twitter, MySpace and Facebook recently…

"I hate my job!"  "I don't want to do this anymore!"  "I pay my staff too much!"

Who wrote this?  Attorneys!  I'm picking on attorneys because they should know better, but my point is simple; live your life online and it'll come back to haunt you, someday.  Hello???  You do know this stuff may be discoverable, right?

Since it's fast approaching, here's a President's Day story for you…

An underling wrote to a General – who would go on to be President of the United States – regarding an act of treason.  The underling was profligate, rambling on and on about the facts of the case, anecdotal details et al, until finally getting to the point; the request for the General to sign-off on an executive order of execution.

The General was not amused.  In his order authorizing the execution, he decided to 'send a message' when he sent the message.  His order contained two words:

"So do."

The underling got the message.  Upon execution of the order, he sent a follow-up to the General:


In the above story, the names were changed to protect the innocent (which means I couldn't find a link to provide, even though I know the story – in some variation – actually occurred.  My recollection is that the missive was sent to General Washington during the American Revolutionary War).

Are you getting the message?


Everybody's seen this on TV – the Miranda warnings.  I'm adopting two of the four Miranda rights as our new e-discovery mantra:

You have the right to remain silent.  Anything you say can and will be used against you in a court of law.

You may be dealing with an adversary who has deep pockets.  What do you think happens the moment a dispute – or threat of one – occurs?  In the old days, they'd hire a private investigator to gather data on the principals, their attorneys, their contacts, heck, even their pets! 

Now, they just do a web search.

There's an old saying; if we could be convicted for what we're thinking, we'd all be in jail!  Forget about 'conviction' for a moment.  Anything you say, no matter when you said it, may be fair game in court to show bias, prior inconsistent statement or a host of other possibilities.  You are creating a record – possibly permanently – of your thoughts.  If you think that deleting them makes them go away, it doesn't.  They can still be recovered in many cases – by someone like me.

If you are operating under the notion that this is personal – and professional litigation is separate – think again.  Anything that can be used to create a profile of how you might carry out your professional duties may be fair game.

Paranoid?  You should be.  You have to be your own filter.  Before you post, ask yourself whether you're OK with the concept that anyone on earth might see it – forever.  If the answer is yes, go ahead.  Post it.  Otherwise, keep it to yourself.

This is e-discovery 101.  Common sense.  We all possess it; we just have to execute.

e-Discovery 101: Assembly Required

MP900289894 I don’t have any children, but many of my friends and relatives do.  Nevertheless, several years ago, I advised the Los Angeles District Attorney’s Office on their internet privacy program called ‘Protecting Our Kids’.  It shocked them when I demonstrated how easy it would be for kids to circumvent all of their ‘watchdog’ procedures.

So, I thoroughly enjoyed reading this story in which a high school in Connecticut accessed students’ non-secure social media pages, then presented some of their findings at an assembly.

I think you can already imagine the reaction of some of the students who were featured

But the creators of the presentation took care only to use images that would not embarrass or offend anyone.  Had they done otherwise, that would be another story.

As it stands, my comment to the offended students – and their parents – is, sometimes, we don’t realize the favor someone is doing for us.  If those same students think twice the next time they’re about to post an item, then the school has accomplished its goal.

Besides…did the message really get through?  Here’s what some of the angry students did first:

They complained on Twitter.

Twitter? Free. True Cost? $430,000 (+ Interest)!

MP900313815 Love don't cost a thing…love means never having to say you're sorry…stop me when you've heard enough…

Just after the new year, I posted about a defamation suit filed against Courtney Love.  Well, that suit has been settled by Love for $430,000 plus interest, as noted in the headline.

Think about this for a moment, folks.  Love creates a free account on a service that didn't exist a few years ago.  She proceeds to use it to defame (according to the plaintiff, anyway) and ends up settling for what most of us would consider to be a very painful sum.

It used to be if you were angry at someone, they'd tell you to go home and punch your pillow.  Heck, there was always Primal Scream therapy.  No matter how foolish it may have been for Love to take to Twitter with her rampage, I doubt it ever crossed her mind that this would be the end result.

Technology has provided no shortage of outlets.  What we need are a few more inlets.

Love Birds? No, Courtney’s Tweets

MP900315682 I keep telling myself I'll just pick out & post only the most egregious misuses of technology to make my points.  The problem is, it's pretty much becoming a daily occurrence.  It's the same way with privacy.  I wasn't even going to bother with this latest example, except that it has some juicy issues for lawyers – if you're interested in defamation claims, that is.

The facts are simple.  Courtney Love tweeted a bunch of nasty stuff about Dawn S., who claimed Love owed her money.  Love was sued for defamation by Dawn S.

In the United States, it's extremely difficult for a public figure to sue for defamation.  There's this legal terminology called "actual malice" that may factor in.  Naturally, a term like that gives rise to the obvious query; is there such a thing as imaginary malice?  A prof of mine said to think of it as "Constitutional malice", which was a little easier to get my arms around.  But I digress…

What's interesting about this case is that the arguments go to the very basis of whether Love qualifies as someone with enough influence to damage Dawn S.  Should we reasonably believe – or rely on – what Love says, especially when the form of broadcast (in this case, Twitter) is at issue?  So much for "The medium is the message"…

Also, I'll wager you've never heard the term, "Insanity defense for social media".  Get used to it…I have a feeling we're going to be hearing it a lot in the future.

The Sheppard, the Fugitive & The Twitter Defense!

MP900442461 If you’re a lawyer, you’ve probably come across “The Twinkie Defense” at some point in your studies.  But what about “The Twitter Defense”?

I suppose it was inevitable, but defense attorneys in a heinous Cheshire, Ct. rape and murder trial intend to argue on appeal that – among other issues – the jury succumbed to the undue influence of over 140,000 inflammatory tweets about the case that were publicly available.

If you’re me (which I am), the entire premise is fascinating because of where the issues take us.  How often do you think you’ll hear a Supreme Court decision from 1966 (specifically, Sheppard v. Maxwell) cited in support of a claim incorporating Twitter in 2010?

To me, it boils down to whether one believes that the tail is wagging the dog or vice versa.  Does the use of “new media” such as Twitter require new court rules?  Will the judges who consider the appeal even know what Twitter is or how it functions?

That’s ok; I guess they’ll just ask their young associates…

To Tweet, or not to Tweet? That is the Question…

MP900403638 I'm a realist.  Anyone who reads my posts for any length of time has figured that out.  I warn about the security dangers of the "cloud", yet understand your operation may need the cloud.  I warn about social networking, yet understand that it's tough to survive in the modern business world without social networking.

Heck, if I hate cars (which I don't), I'd still have to drive to work every day…

So, I came across this debate about whether lawyers should use Twitter, and I think it serves its purpose; not to discourage you, but to make sure that if you do, you think about what you're getting into with eyes wide open.  For example, almost none of my tweets stand alone.  The bulk of them are simply links back to this blog.  That's how I decided to use it.

Fear of technology is not a viable excuse to avoid it; especially since a lot of your competition won't.  Look in your rear-view mirror (we were already on the automobile metaphor) at all of those bright-eyed, bushy-tailed associates who are coming up.  They're using all the gadgets.  The question is, are they using them intelligently?

A blessing and a curse…

e-Evidence Insights: Paris Las Vegas

MP900433045 I'm making this another category.  First of all, let me tell you that personally, I found evidence – whether civil or criminal – to be one of the most fascinating subjects in law school.  It was also one of the most complex.  As much as I wanted to get my JD and become an attorney, the problem was that I was in my 40s by the time I took evidence class.  That means, I'd had 40 years to think like a layman; re-programming to think like a lawyer was no mean feat.

But, as eDiscovery professionals, I can't think of anything more important to our clients than how we handle evidence.  It's the basis of everything we do, and not just the collection and processing of it.  There's chain-of-custody, authentication, contamination, etc.  I'm not just referring to physically handling the stuff, I'm referring to how the appropriate professionals should have in their mind a methodology for handling it even before it exists.  One false move and this opens the door to impeachment.

So, it is with great fanfare that I reveal that Paris Hilton has finally made it; to this blog, that is!  Why?  Because of how, as a layman, she handled her arrest for cocaine possession.  Not since OJ Simpson and his "ugly-ass" Bruno Magli shoes has someone – figuratively, this time – put their foot so firmly in their mouth; and in doing so, provided us with another outstanding example of how a bunch of seemingly-unrelated statements, photos and social networking posts may ultimately do her in.

Paris claimed – initially – that the Chanel purse wasn't hers.  What contrary evidence is out there?  Her Twitter post with a snapshot of the identical Chanel purse, exclaiming how happy she is with "my" new purse.  Does this definitively prove it's the same purse?  No; when it comes to criminal proceedings, nothing is that simple – nor should it be when someone's liberty is at stake.  However, if she's convicted, Twitter, TMZ and Radar Online may deserve the lion's
share of the credit.

[This story changes by the minute, but the latest appears to be that Paris now admits it was her purse, but the coke wasn't.  Oy…]

Don't ever tell me that "all publicity is good publicity" and expect me to agree with you…I defer to Miranda and the 5th Amendment.  I – and I suspect Ms. Hilton's criminal defense attorney – wish people would exercise their right to silence more often…

Take a Picture…It’ll Last Longer…

J0433115 Privacy is taking another hit to the chops.  A Swedish firm named The Astonishing Tribe has created an application called Recognizr which allows you to snap a picture of a total stranger, then it crawls the web to find information about that person.

Stalker's dream, anyone? 

Well, if you believe the sensationalist media, yes, but in reality, not quite.  It's an opt-in service so what we're really talking about is, people who don't understand the implications voluntarily opting-in (e.g. singles who think it would be a fun way to meet people), unscrupulous entities that opt you in without your consent, or perhaps an employer demanding that their staff opt-in.  You think not?  I saw an ad seeking an employee for Best Buy that required the candidate to have a Twitter account and at least 250 followers.

Based on what we see with social networking, plenty of people don't seem to be too concerned about their privacy so there'll potentially be plenty of 'volunteers' from the 1st group.  My guess is that the 2nd group would quickly be discovered, lambasted from one end of the Web to the other and quickly shut down (Google Buzz, anyone?).  As for the 3rd?  That's a question for the future.

As a lawyer, I certainly can envision practical uses for the application.  I've been to trials where there's a person who sits at the back of the courtroom every day, I know they have an interest in the case (e.g. insurance carrier's attorney) but they won't tell me who they are or why they're there.  Wouldn't I love a tool that would tell me for them…

The Verdict is In: Social Networking is a Drug, and Facebook, Twitter, et al, are Enablers

J0321155 I'm rarely surprised by the things I read.  However, while reading an article on Time.com about something I've covered several times, jurors using PDAs during trials, a portion of the last paragraph floored me:

"The temptation to hop online is so great, and the habit so ingrained,
that, as Keene notes, a burglar in Pennsylvania ended up getting caught
because he stopped to look at his Facebook page on the victim's
computer, leaving an online trail for the police to follow."

Granted, assuming the burglar wasn't an IT expert, he wouldn't know he was leaving an online trail, but you'll recall I also posted about a felon who boasted on MySpace about committing a murder.

Maybe I've been discounting the possibility that there is a positive side to social networking.  After all, we know that most people can't keep their mouths shut, and in fact, if all bad-actors simply didn't talk (the opposite of what we always see on TV, where everybody talks and talks and talks before asking for a lawyer) the reality is, a much lower percentage of crimes would be solved.

I'm curious, going forward, to see if we start experiencing a marked increase in crimes being solved through this type of evidence.  It's something to watch in 2010.