In a society that has embraced cell phones, text messaging and blogging, it was only natural that the desire to communicate and connect with each other would expand into full-blown web profiling. Social networking services make available details about the lives of millions through emails, blogs, stories, photos and video clips. And the trend shows a rapid rise in the creation of adult user profiles and daily site visitors. See generally Pew Internet Project Data Memo: Adults and Social Networking Websites (Jan. 14, 2009); New Numbers on Social Network Usage, CNET News, Feb. 10, 2009.
The activities of users and the information being posted on these sites are having wide ranging effects on the administration of justice, law enforcement investigation, prosecution and defense. This article provides a snapshot of many of the novel and varied uses of social networking evidence in the field of criminal justice. The resources listed below explore basic concepts about social networking online, the use of materials found on profiling sites for investigation and their impact on criminal litigation.
Concepts
Social Networking (Wikipedia)
“A social network is a social structure which facilitates communication between a group of individuals or organizations, that are related by one or more specific types of interdependency, such as: a special or common interest; shared values; visions, ideas, or perhaps ideals; financial exchange, friendship, kinship, dislike, conflict or trade.”
Social Network Service (Wikipedia)
“A social network service focuses on building online communities of people who share interests and/or activities, or who are interested in exploring the interests and activities of others. Most social network services are web based and provide a variety of ways for users to interact, such as e-mail and instant messaging services.”
Social Network Sites: Definition, History, and Scholarship, 13 J of Computer-Mediated Communication No. 1 (2007)
“Social network sites (SNSs) are increasingly attracting the attention of academic and industry researchers intrigued by their affordances and reach. This special theme section of the Journal of Computer-Mediated Communication brings together scholarship on these emergent phenomena. In this introductory article, we describe features of SNSs and propose a comprehensive definition. We then present one perspective on the history of such sites, discussing key changes and developments. After briefly summarizing existing scholarship concerning SNSs, we discuss the articles in this special section and conclude with considerations for future research.”
Sousveillance (Wikipedia)
“Sousveillance (IPA: [suː’veɪləns], original French [suvɛjɑ~s]) as well as inverse surveillance are terms coined by Steve Mann to describe the recording of an activity from the perspective of a participant in the activity,[1] typically by way of small portable or wearable recording devices that often stream continuous live video to the Internet.”
Sousveillance: Inventing and Using Wearable Computing Devices for Data Collection in Surveillance Environments. Surveillance & Society 1(3): 331-355 (2003)
“This paper describes using wearable computing devices to perform ‘sousveillance’ (inverse surveillance) as a counter to organizational surveillance. A variety of wearable computing devices generated different kinds of responses, and allowed for the collection of data in different situations. Visible sousveillance often evoked counter-performances by front-line surveillance workers. The juxtaposition of sousveillance with surveillance generates new kinds of information in a social surveillance situation.”
Social Networking in Plain English (Commoncraft 2007)
This Youtube video provides a very clear, fundamental description of how social networking services work and their benefits.
Social Networking Sites
List of Social Networking Websites (Wikipedia)
List of Defunct Social Networking Websites (Wikipedia)
Social Networking Websites Services Review (TopTenReviews 2009)
Criminal Justice
Investigation
America Online Compliance & Investigations
How to Capture a MySpace Page for Investigative Purposes (Search 2008)
Is This Lawman Your Facebook Friend?, Boston Globe, Jan. 11, 2009
ISP List (Search)
Maine Police Use Facebook, MySpace to Solve Crimes, FirstCoastNews.com, Feb. 20, 2009
Murder Most Wired, Newsweek, Dec. 3, 2008
MySpace.com: Official Law Enforcement Officers Investigators Guide (2006)
Use of Social Network Websites In Investigations (Wikipedia)
Victim Uses Facebook To Finger Suspect, CNN, Sept. 28, 2007
Prosecution
Colorado Man Faces Criminal Charge In Libel Case, Los Angeles Times, Dec. 4, 2008
Guilty Verdict in Cyberbullying Case Provokes Many Questions Over Online Identity, New York Times, Nov. 27, 2008
Guilty Verdict In Myspace Suicide Case Could Chill Internet Speech, Christian Science Monitor, Nov. 28, 2008
MySpace ‘Friend Request’ Could Violate Protection Order, New York Law Journal, Feb. 14, 2008
MySpace Page Used Against Gang Suspect, Buffalo News, Jan. 23, 2009
MySpace Reveals Probation Violation, Chicago Tribune, Oct. 12, 2006
State Arrests MySpace User: Sex Offender Accused of Violating Parole, Hartford Courant, June 1, 2007
Defense
Bar Brawl Indictment Dismissed, Albany Times Union, Feb. 18, 2009
Judge Clears Myspace In Sexual Assault Case, Gets Free-Speech Protection, Bellville News-Democrat, Feb. 18, 2007
Lack of Internet Access Muddies Case Against Sex Offender’s MySpace Site, Law.com, Nov. 6, 2006
Myspace Profile Sets Convicted Felon Free, CNET News, Nov. 30, 2007
Social Networking Puts the Bite on Defendants, Law.com, July 22, 2008
What Lawyers Need to Know About Social Networking Sites, Dallas Bar Association Headnotes, Feb. 2009
Discovery
MySpace, Facebook Pages Called Key to Dispute Over Insurance Coverage for Eating Disorders, National Law Journal, Feb. 1, 2008
MySpace, Facebook Privacy Limits Tested in Emotional Distress Suit, New Jersey Law Journal, June 14, 2007
Witness Background
Litigation Clues Are Found on Facebook, National Law Journal, Oct. 15, 2007
MySpaced-Out Cops: NYPD Eyes Web Pages of Recruits/a>, N.Y. Post, Jan. 21, 2009
What’s On Your Witness’s MySpace Page?, ABA Litigation News Online, March 2008
Jury Selection
Jury Duty? May Want To Edit Online Profile, Los Angeles Times, Sept. 29, 2008
Social Networking Sites Help Vet Jurors, National Law Journal, Aug. 13, 2008,
Trial Consultants Add Facebook/Myspace to Juror Research Toolbox, ABA Journal Law News Now, Sept. 29, 2008
Due Diligence
Due Diligence With Social Networks, Law Technology News, Dec. 12, 2008
Found in (My)Space, American Journalism Review, Oct./Nov. 2007
Making Internet Searches Part of Due Diligence, Los Angeles Lawyer, Feb. 2007, at 46,
When Reporters Go Into MySpace, News & Observer, Dec. 31, 2007
Research and Analysis
Dredging up the Past: Lifelogging, Memory, and Surveillance, 75 U. Chi. L. Rev. 47 (2008)
“The term ‘lifelog’ refers to a comprehensive archive of an individual’s quotidian existence, created with the help of pervasive computing technologies. Lifelog technologies would record and store everyday conversations, actions, and experiences of their users, enabling future replay and aiding remembrance. Products to assist lifelogging are already on the market; but the technology that will enable people fully and continuously to document their entire lives is still in the research and development phase. For generals, edgy artists and sentimental grandmothers alike, lifelogging could someday replace or complement, existing memory preservation practices. Like a traditional diary, journal or day-book, the lifelog could preserve subjectively noteworthy facts and impressions. Like an old-fashioned photo album, scrapbook or home video, it could retain images of childhood, loved-ones and travels. Like a cardboard box time capsule or filing cabinet it could store correspondence and documents. Like personal computing software, it could record communications data, keystrokes and internet trails. The lifelog could easily store data pertaining to purely biological states derived from continuous self-monitoring of, for example, heart rate, respiration, blood sugar, blood pressure and arousal. To the extent that it preserves personal experience for voluntary private consumption, electronic lifelogging looks innocent enough, as innocent as Blackberries, home movies, and snapshots in silver picture frames. But lifelogging could fuel excessive self-absorption, since users would be engaged in making multimedia presentations about themselves all the time. The availability of lifelogging technology might lead individuals to overvalue the otherwise transient details of their lives. Furthermore, the potential would be great for incivility, emotional blackmail, exploitation, prosecution and social control by government surrounding lifelog creation, content and accessibility. Existing privacy law and policy do not suggest meaningful limits on unwanted uses of lifelogging data. This parry of the costs and benefits commences a fuller discussion of lifelogging’s ethical and legal implications.”
MySpace, Your Space, or Our Space? New Frontiers in Electronic Evidence, 86 Or. L. Rev. 1201 (2007)
“This Comment argues that traditional legal rules are generally ineffective in addressing the new challenges that electronic evidence poses and that such challenges require new solutions. Many of the lessons learned from the increased use of electronic evidence in civil litigation – “e-discovery,” in the parlance of litigators – may be applied to the burgeoning use of social-networking sites to gather evidence in criminal cases. This Comment also suggests some shortfalls in the newly revised Federal Rules of Civil Procedure governing e-discovery and offers suggestions for closing existing loopholes.
The discussion unfolds in three parts. Part I analyzes the increased reliance on e-discovery in civil litigation by describing its historical evolution and important common law developments. It also focuses on recent revisions to the Federal Rules of Civil Procedure that will force judges, attorneys, and clients to take notice of digital evidence in litigation. Part II turns to the rise of social-networking web sites such as MySpace and Facebook and discusses how such online communities are changing the way prosecutors, defense attorneys, and law-enforcement officers investigate crimes and prepare for trial. It traces the development of online communities and gives examples of the potential use, or misuse, of social-networking sites for gathering evidence. Part III presents the heart of the argument – namely, that while some of the legal concepts developed through the evolution of e-discovery can and should be applied to the use of social-networking sites to gather evidence, meeting the challenges of emerging technologies requires new approaches. It is only by combining the lessons learned from past successes and failures with new legal strategies that the law governing evidence gathered online will gain uniformity.”
Reputation Nation: Law in an Era of Ubiquitous Personal Information, 102 NW. U.L. Rev. 1667 (2008)
“The paper develops a hopeful hypothesis, which is that the widespread availability of personal history and reputation information will reduce individuals’ reliance on easily observable proxies like race, gender, and age, in deciding with whom to socialize or do business. The government thus has an unrecognized anti-discrimination tool at its disposal. For example, in addition to imposing liability on landlords who discriminate on the basis of race, the state can provide landlords with personalized information about a prospective tenant’s attributes that allows the landlord to assign more weight to those attributes and less weight to the tenant’s race. The paper then explores the application of this insight to varied antidiscrimination challenges in employment law, jury selection, health law, and insurance regulation. It then extends the discussion to examine how the widespread availability of personal information might improve immigration policy and consumer protection law. [P] The paper’s next part examines the variables that will determine whether the optimistic story plays out, and whether greater information availability might undermine welfarist and distributive goals. It develops a typology of curtains and search lights, respective strategies designed to obscure individual attributes that are otherwise visible or render observable attributes that would otherwise be obscure, and explains why search light strategies might be particularly well suited to certain contexts. The paper concludes with a discussion of the normative case for the government to supplement traditional antidiscrimination laws with information-based antidiscrimination strategies, focusing on the pathologies that result when privacy protections or other obscurity-inducing measures are used for distributive purposes and the social meaning of strategies that try to reduce discrimination by providing decisionmakers with more information about job seekers, apartment renters, jurors, or patients.”
Why Must You Be Mean to Me? – Crime, Punishment and Online Personality, SSRN (2008)
“The development of online social spaces such as YouTube, MySpace and Second Life, has created new opportunities for their users to behave towards others in a way which constitutes offline offences such as harassment. It has also enabled users to create online personae which are distinct from, and in many cases not obviously connected to, their real-world personality. This article explores three questions: whether the redress mechanisms built in to those online spaces provide sufficient remedies that the criminal law should, at least for the present, stand aloof; whether existing criminal law can protect those online personae; and whether the law might be extended to protect them on the basis that they are some kind of property or exhibit sufficient elements of personhood.”