Facebook Status Update Clears Teen From Criminal Charges

From Gizmodo, Facebook Status Update Clears Teen From Criminal Charges:

Rodney was arrested on October 18 as a suspect in two crimes. He declared himself innocent and Robert Reuland—his defense lawyer—found the key to free him: “Where’s my pancakes?”

That seemingly inconsequential Facebook status update proved crucial when the Californian company confirmed that someone wrote it from his father’s Harlem apartment computer, using Rodney’s user and password at around the time of the alleged crime: Saturday October 17, 11:49am.

So Facebook actually got this guy out of Prison. Very cool.

The most interesting thing in this case, however, is that this seems to be the first time in which social networking has been used to save the ass of someone, rather than nailing a really stupid thief. Some people believe that Facebook and other sites will become part of criminal cases across the country, as they get deeper under society’s skin. Personally, I can’t wait till we are all monitored by automagical retinal scans, and naked bald people in funky swimming pools decide who is a criminal and who is not. Can’t wait, I tell you. [Fort Greene]

People have been cleared because they were filmed on Jumbotrons, but this is pretty interesting. But what presents someone else with the Defendant’s password from forging an alibi?

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No Tweeting in Federal Court, and why I think the Supreme Court should get on Twitter

Apparently sending Tweets during a trial is considered “broadcasting” and the Court can ban it according to Federal Rule of Criminal Procedure #53. From United States v. Shelnutt (M.D. Ga. Nov. 2) (H/T Volokh),

A reporter for the Columbus Ledger-Enquirer newspaper has requested that he be allowed to use his handheld electronic device (e.g., a BlackBerry or cellular telephone) during the trial of the above-captioned criminal case to send electronic messages describing the court proceedings directly from the courtroom to his newspaper’s “Twitter” website. The messages, called “tweets,” would then be available to any member of the general public who accessed the newspaper’s Twitter website….

The Court finds that Rule 53 of the Federal Rules of Criminal Procedure prohibits “tweeting” from the Courtroom and that Rule 53 does not unconstitutionally restrict the freedom of the press under the First Amendment to the Constitution….

Rule 53 states in relevant part: “[T]he court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.” The Court finds that the term “broadcasting” in Rule 53 includes sending electronic messages from a courtroom that contemporaneously describe the trial proceedings and are instantaneously available for public viewing. Although “broadcasting” is typically associated with the dissemination of information via television or radio, its plain meaning is broader than that. The definition of “broadcast” includes “casting or scattering in all directions” and “the act of making widely known.” Webster’s Third New International Dictionary (Unabridged) 280 (1993). It cannot be reasonably disputed that “twittering,” as previously described, would result in casting to the general public and thus making widely known the trial proceedings. Moreover, it appears clear that the drafters of Rule 53 intended to extend the Rule’s reach beyond the transmission of trial proceedings via television and radio.

Prior to the 2002 Amendments to Rule 53, the Rule specifically prohibited the “taking of photographs” and “radio broadcasting.” The 2002 Amendments eliminated the modifier “radio” from broadcasting, leaving a prohibition against “broadcasting” generally and not just “radio broadcasting.” This change was purposeful, and although the Advisory Committee’s notes state that the Committee did not consider the change to be substantive, the notes do reveal that the Committee made the change with the intention that additional types of broadcasting would be covered by the Rule. See Fed.R.Crim.P. 53 advisory committee’s note (“Given modern technology capabilities, the Committee believed that a more generalized reference to ‘broadcasting’ is appropriate.”)

Based on the foregoing, the Court finds that the contemporaneous transmission of electronic messages from the courtroom describing the trial proceedings, and the dissemination of those messages in a manner such that they are widely and instantaneously accessible to the general public, falls within the definition of “broadcasting” as used in Rule 53. Therefore, this type of broadcasting is prohibited under Rule 53, unless the application of Rule 53 is unconstitutional because it unduly restricts the freedom of the press under the First Amendment.

It is well settled that the restrictions contained in Rule 53 do not restrict the freedom of the press in an unconstitutional manner. The press certainly has a right of access to observe criminal trials, just as members of the public have the right to attend criminal trials. In this case, the press will be able to attend, listen and report on the proceedings. No restriction is being placed upon their legitimate right of access to the proceedings. Accordingly, the Court finds that its application of Rule 53 in this case does not violate the First Amendment.

I still think the Supreme Court should start a Twitter Feed. Here are a sampling of some possible tweets:

  • Cert granted = Petr FTW!
  • Cert denied= Petr FTL!
  • Dismissed as Improvidently Granted = Cert Fail
  • Call for the Views of Solicitor General = @SG, What up?
  • Per Curiam Reversal = Epic Fail!
  • Reverse and Remand to 9th Circuit: Srsly @CA9, not again, get it right!

Any other tips?

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NLJ: Professor wants law students to think before they tweet

From NLJ:

Drake University Law School professor Melissa Weresh is on a mission to get law students and young attorneys to think twice before they hit send on an e-mail, post a photo to their Facebook pages or update their Twitter accounts. New technology has made communication faster than ever before, but also has led to a widening gap in the way younger and older generations communicate and differing opinions on what is professional and appropriate. “They way [law students and young attorneys] are accustomed to communicating is just so different,” Weresh said. “Everything is immediately available, and they’ve almost been exclusively communicating through electronic mediums in ways that older generations may see as inappropriate.”

Of more interest is Professors Weresh’s comments regarding how Twitter may affect the attorney-client privilege.

Yes. I think about Twitter, and how there are no jurisdictional lines over Twitter. Could you have a dialogue that rises to an attorney/client relationship? Are there jurisdictional issues there? I don’t know, but as we continue to morph the way we communicate, it takes a while for the law to catch up to the technology. As each new mechanism develops, we really have to keep an eye on how this relates to ethics and how it might change the way we are perceived.

I’m not sure who would have any sort of private conversation on Twitter, as tweets are generally open for the entire world to see, but if people are totally desensitized to the nature of private communiques, this may be a prevalent issue. I am working on an article, tentatively titled The Law of Twitter. Law 2.0 for Web 2.0. I’ll have that ready to shop around beginning of March-ish. Stay tuned.