The rising star of Web 2.0 has brought the dawn of social and professional networking sites such as Facebook, MySpace and LinkedIn.  These free services have grown in popularity so that it’s rare to find a person under the age of 35 who doesn’t have some type of personal Web page.  With the dawning of these networking groups has come the dawning of numerous lawsuits.
 

The Indiana Supreme Court recently rendered an opinion on the intricacies of MySpace.  A 14-year-old student was adjudicated delinquent on what would have been criminal harassment charges had the student been an adult.  The student was charged because of statements she posted about her school principal in a MySpace private group and on a separate profile.[1]

 
 The Indiana Supreme Court undertook a detailed discussion of how MySpace operates, how only members of a group could see specific postings, and if a profile were set to “private,” only “Friends” could view it.  Additionally, the Court took issue that the State offered no witness to address how MySpace actually works. 

 
 The Indiana Supreme Court held that the State failed to prove that the student made the MySpace statements with the intent required for criminal harassment.  The Court’s analysis covered in great detail that a message posted on a personal profile or available only to a private group with only members having viewing rights did not prove the student’s intent to harass.  The student did not reasonably expect the principal to view any postings by either joining the private group or viewing her public profile. 
 

The main thrust of the Indiana Supreme Court’s opinion was an understanding of how MySpace operates.  A party’s failure to understand how these social networking sites actually work can break their case. 

 
 The Supreme Court of Iowa also weighed in on a social networking case.  The case’s key issues centered on proving the elements of a criminal conspiracy as well as the conspiracy exception to the hearsay rule.  The hearsay at issue was party invitations sent from Facebook.[2]

 
 A group of college students were holding a house party, for which they posted an invitation on Facebook. The college students planned to charge admission and split the party profits.  The students bought beer and made JELL-O shots for the partygoers.   
One attendee, a-20 year-old student who drank at the party, later killed another person on her drive home.  The college students who planned the party were charged with serving alcohol to persons under the legal drinking age.  The charge also stated that the party hosts knew that the invited partygoers would include people under the legal drinking age. 

 
 On discretionary review, the Iowa Supreme Court addressed the elements to criminal conspiracy and the conspiracy exception to the hearsay rule.  The Iowa Supreme Court held that the co-conspirator exception to the hearsay rule applied to agreement to do a lawful act in an unlawful manner; in this case, sending out party invitations on Facebook.

 
 State courts are actively facing cases involving social networking sites.  These cases will continue to grow in number, ranging from defamation, trade secret violations and everything else that fuels both criminal and civil litigation.  Lawyers can expect courts to require expert testimony on how social networking sites work.  Without this evidence and intimate knowledge of how the sites operate, parties might fail to prove their cases. 

Human beings are expressive by nature.  The number of social networking sites where people post photos, online diaries, and other personal information is staggering.  This runs the gambit from teenagers on MySpace to professionals on LinkedIn to 30-somethings on Facebook.

However, be careful what you blog about on these websites. 
In one criminal case, a defendant on appeal sought a new trial because one juror maintained a blog.[1]  The defense lawyer discovered the juror’s blog after the trial.  On the first day of the case the juror blogged, “…I can’t talk about the case da**it, and that is so highly frustrating.”[2] 

After the guilty verdict, the blogger posted the following:
“Well, it figures. Had a horrible time not being able to talk about the case. But now after finally having deliberations, it’s like bleh, I don’t want to talk about this sh*t anymore. * * * Basically, I feel like I was the only [person] playing devil’s advocate and presuming this guy was innocent. * * * .”[3]
The blogger also discussed how the evidence convinced him the defendant was guilty. 
The court quickly disposed of any claims of jury misconduct.  First, the blogger’s first posting did not show any bias.  Second, the blog postings were post-verdict and the blogger was free to discuss the case.[4] 

 
Blogging and Child Custody Cases
A mother lost the custody of her child in part from her lifestyle she claimed on her MySpace blog.[5]  The lifestyle of a parent can be considered as evidence in child custody cases “to the extent it has a direct adverse impact on the child.”[6] 

A mother lost the custody of her child in part from her lifestyle she claimed on her MySpace blog.[5]  The lifestyle of a parent can be considered as evidence in child custody cases “to the extent it has a direct adverse impact on the child.”[6]  

 
The mother admitted in court that she wrote the blogs at issue and that they were public for anyone to view.[7]  Since these entries were public, there was no expectation of privacy.[8]  The MySpace blog entries stated the mother practiced sado-masochism and used illicit drugs.[9]  Moreover, her blog entries on drug use contradicted her in court denials of using illicit drugs. 

 
The Court found that the mother’s lifestyle could have an adverse impact on her child and custody was awarded to the father. 

 
Duty of Attorneys

 
Attorneys have new issues to consider in light of blogs.  In the first example, asking questions during jury selection on whether any prospective juror maintains a blog can help avoid jury misconduct.  Due to the high usage of blogs, Courts should also instruct jurors not to discuss the case on a blog. 

 
Lawyers should find out if their clients maintain a blog.  More importantly, lawyers should find out what is being admitted on those blogs.  Knowing a client has admitted some form of wrongdoing is better to find out in your office than as a “surprise” during a deposition.  There are even horror stories of deponents actually admitting statements that contradict with deposition testimony shortly after the deposition.

 
 Blogs are beginning to impact cases.  Most lawyers rather be the ones making the impact instead of receiving it. 

 The 1982 classic technology movie, TRON tells the story of a person transformed into data and then thrust into the virtual world of individual computer programs fighting for their cyber lives.

 
More than 25 years later, life now emulates art. People are transforming themselves into virtual alter egos, living lives in Second Life, “friending” other individuals on social networking sites, or doing battle with others in online games.  Steven Lisberger and Bonnie MacBird probably did not realize how the virtual fantasy world they created in 1982 would so closely mimic the world of today’s online communities. 

 
How we live our lives fuels future litigation.  The same is true in the unique intersection of the virtual world and the real world.  Few online examples highlight this better than Second Life. Second Life allows users (residents) to spend real money on virtual “property” and invest in “banks.”  In one recent case, a Second Life resident purchased virtual property with real money, which was later confiscated from him.[1]  The resident was a lawyer in real life and brought suit in his native state of Pennsylvania.  Additionally, “Technology Review” highlights a story with a Second Life banks disappearing and taking the money of residents with them.[2] 

 
Both examples involve a cavalcade of issues.  Consider the following:
o        Who do you sue from the virtual world? 
o        In the case of the “bank” that vanished, how do you track them down?
o        If you can’t find the bank, do you sue the service provider? 
o        Will you need to use online service of process if you cannot find a physical address to serve a defendant? 
o        Where do you sue? 
o        In a tort case, where the wrong was committed can be the proper venue, but what happens when the fraud was online?
o        Is there a forum selection clause that sets the venue of the case?
o        The “property” case had a direct challenge to the Second Life forum selection clause, which was defeated because of the interactive nature of the marketing.
o        What do you request in discovery?
o        If tracking down the vanished bank, seeking ISP addresses from the service provider might help you track down the bank. 

 
The virtual world is blurring the lines with the real one.  Classic litigation such as breach of contract, fraud and defamation can all find their genesis in the virtual world and litigation in the real one.  Issues of forum selection clauses, proper venue, choice of law, and even finding the defendant will be continuing challenges as our lives behind the screen merge with our lives in front of the screen. 

One recent court order required Georgetown University to turn over student ISP addresses to Warner Brothers Records in a copyright infringement suit.[i]  Warner Brothers sought to identify students who illegally traded copyrighted material on a peer-to-peer network.  Comcast Cable and AT&T both have engaged in content blocking of online activity under the color of blocking peer-to-peer sharing to protect copyrights or bandwidth issues.[ii]

 
The issue of content blocking attacks the very spirit of “network neutrality,” the premise that the internet is network free of restrictions.[iii]  However, copyright protection and file sharing issues go back to the late 1990s with the original Napster decisions.  Moreover, the fact Napster “lost” in the late 1990s paved the way for iTunes and other .99 cent music downloads to turn into a major industry. 

 
Content blocking is a hot topic that raises emotions.  Most individuals have no problem with copyright protection.  Blood begins to boil with internet service providers deciding they are going to block any particular content.  This runs the gauntlet from copyright protection to enforcing laws in the People’s Republic of China that restrict searching for specific content. Nightmare scenarios begin to unfold at the idea of a company backing a particular Presidential candidate over another.  

 
This story is far from over.  Comcast Cable is being investigated by the FCC for its content blocking actions.  Yahoo was dressed down as “spineless” at a Congressional hearing for turning over email that landed Chinese dissidents in prison.[iv]
The issue of content blocking will be the subject of litigation, Congressional investigation, and market factors for a long time to come. 

Consider this…
A mother bought her daughter an MP3 player from Wal-Mart.  Mom thought the MP3 player was new, but Wal-Mart sells used MP3 players as new products without disclosing the fact they are used.[1] 
The 12 year old daughter started using her “new-to-her” MP3 player.  To her shock, the device contained sixty-two photos and six and a half hours of video of hardcore gay porn.[2] 

Mom was not happy and sought legal counsel.  Shortly thereafter, the corporate counsel for Wal-Mart was really not happy.

 
One MP3 player landed a nationwide corporation in Federal court facing a possible class action suit over selling used MP3 players as new products.  This is but one example of the legal troubles a portable music device can cause. 

 
But wait, there will be more.

 
If the key evidence in a case is an MP3 player and its data, what do you do with it?  The device is essentially a hard drive that can hold many different types of electronically stored information.  This ESI (Electronically Stored Information) is subject to the Federal Rules of Civil Procedure (FRCP) and Federal Rules of Evidence (FRE).  This makes a media player under an inch long and a few centimeters thick subject to preservation, requests for production, and even spoliation.

 
The duty to preserve electronically stored information might require an expert to make a mirror image of the data off an evidentiary MP3 player.  Moreover, Courts may treat these situations to copying a personal hard drive, requiring a neutral third party to copy the MP3 player, give the producing party an opportunity to review for privilege, and then produce to the demanding party.[3]  

 
Litigation involving MP3 players is just at its dawn.  Knowing that MP3 players contain ESI and are subject to the Federal Rules of Civil Procedure will empower you to be ready for these cases. 

From

I recently posted on YouTube videos being used as exhibits that highlighting illegal conduct.1  I regret having an example so quickly. 

Eight teenagers were arrested for beating a teenage girl in Lakeland, Florida.  The youth beat up the victim so they could make a YouTube video.

The assault included one of the female attackers striking the victim on the head several times and then slamming the victim’s head into a wall, rendering her unconscious.  Three other teens forced the victim into a car and took her to another location. 2 Footage of the attack is available with most of the news articles covering the story. 

This savage total abandonment of humanity was some sick lust to post something on YouTube. 

I wish a painless and quick recovery to the victim.  I wish the district attorney handling this case total success. 

The civil lawsuit that will likely follow will not rival anything like Enron, the Southwest Airlines safety scandal, or the White House missing email cases when it comes to electronically stored information.  It does have e-Discovery I would seek as a plaintiff attorney for the victim.  Just because a case does not involve a multinational corporation does not mean small cases do not have e-Discovery. 

If I were the district attorney or the plaintiff attorney, I would seek the following electronically stored information:

            Cell Phone Text Messages: Teenagers communicate by text messages.  There is a complex shorthand language that will require some translation, but these messages might show a conspiracy between the teenage attackers.  This may require an expert to copy the cell phones or a third party subpoena to the cell phone company to acquire the text messages. 

            Cell Phone Photos or Video: It is difficult to find a cell phone that does not take photos or shoot video.  Any exciting clips may show further evidence of guilt.  A defense lawyer might find statements by co-defendants urging the attack to stop. 

            Instant messages: Third party experts might be required to copy instant message history from the defendants’ computer hard drives. 

            Blog postings: Teenagers communicate via posting on social networking sites such as MySpace.  These sites allow users to post “tags” on their “friends” pages communicating plans, meetings, or other statements.  I would have an expert copy each teenager’s webpage to seek each blog posting and tags for any evidence showing a plan to assault the victim.

            YouTube Videos: I would have an investigator review every posting by any defendants on YouTube and copy potential party admissions.  If these youth were planning to post an attack on YouTube, there might be video to show their plans. 

The above are just a few ideas.  Even though this isn’t a large case or a very complex one, it still contains e-discovery and attorneys should not forget that.

I hope the district attorney handling the case and the plaintiff attorney seek computer experts to gather any possible electronically stored information. 

Go do justice. 

“Andrew Jackson” style voting was a party. The debates and speeches might have been three hours long, but there was plenty of hard cider and a rip roaring good time to be had in the political process. Trying imagining a wild tailgate party with someone who wants your vote. Politics was entertainment.

…and along came mass entertainment. This included movie serials with no concept of CGI, sizable boxing matches, baseball in its prime long before Congressional hearings on performance enhancers, and other sporting events that allowed a new forum for what had been a political “party.” This downturn started with the re-election of TR and continued through the 20th Century.
However, things are changing. Social networking sites, blogs, YouTube and peer-to-peer campaigning has created epic fund raising and interest in the 2008 Presidential Campaign. While the results will not be known until November, the 21th Century has the potential to rival the political process of the 19th Century.

The Right to Petition the government for redress of grievances is the often forgotten clause of the First Amendment. This “ignored” Fundamental Right to petition elected officials to set right what is wrong is being dramatically enhanced by the power of blogs, YouTube videos, and social networking sites.

A Brief History of the Right to Petition

The “Right to Petition” is the last clause of the First Amendment, stating that Congress shall not restrict the right to “…petition the Government for a redress of grievances.” In the simplest sense, it is the Right to Complain. While the Right to Petition is not that simple, the basic application of the Right was for citizens to go door to door with a petition on an issue, then send their petitions to their Congressmen.

The abolitionist movement in the 1830s is best early example of the Right to Petition. Those fighting the horrors of slavery petitioned Congress on this wrong. The number of petitions was actually moderate, until Congress began tabling those petitions to appease Southern interests. Petitions exploded after the ban.

The “Gag Rule” was one of the first major challenges to the “Right to Petition.” The “Gag Rule” required all petitions on the subject of slavery to be tabled, violating the spirit if not the letter of the First Amendment. This silencing effect on the abolitionist movement caused an explosion of anti-slavery petitions through the 1840s.

There are many heroes who defended the First Amendment in this period. One was former President turned Congressman John Quincy Adams and another Congressman Joshua R. Giddings from Ohio. President Adams fierce defense of the right would earn him the nickname “Old Man Eloquent” and other unprecedented honors for a 19^th Century statesmen. Congressman Giddings would later have a roommate in his congressional boarding house named Lincoln.

The Right to Petition has been the beginning of virtually all the great moments that define American history: Abolitionist Movement. Women’s Suffrage. The Civil Rights Movement.

The Right to Petition in the 21^st Century

Alexis De Tocqueville noted that Americans of all walks of life have opinions on everything. This classic American trait has exploded in cyberspace. Wikipedia cites there are 112 million blogs tracked by the search engine Technorati as of December 2007. All of those blogs range from online diaries, to political commentary to people just sharing their views on the world.

The ability of any person to comment on a grievance they think the government must redress can be instantly shared with a large online community. Government officials testifying before Congress have instant commentary on their statements. Moreover, video blogs (vlogs) can make a plea for action deeply personal beyond a simple petition.

The power of technology has not been lost on politicians. Both candidates for the US Senate in Virginia announced their campaigns on YouTube. Presidential Candidates from both parties experienced “YouTube” questions during the primaries. Candidates have also hosted town hall style meetings on MySpace.

The ability to “blog” about a “grievance” can bring attention and government action prior than any point in our history. Bloggers can petition the government with lightning speed and effect just as issues have exploded because of the media (example, Terri Schiavo’s case ultimately prompting legislative action by both the state of Florida and Congress). Bloggers attacking Trent Lott’s statements at Strom Thurmond’s birthday helped drive the media storm that ended Senator Lott’s career as Majority Leader. Ironically enough, a blogger in Iowa turned Mike Huckabee’s victory night into a bitter interview for one of his advisors. Ed Rollins on January 3 had his lunchtime discussion overheard by a blogger in a restaurant. The blogger posted the strategy plans she overheard that were the subject of at least one uncomfortable televised interview.

Americans are not afraid to speak their minds. This has caused a problem for bloggers facing liable suits, invasion of privacy claims, and other legal challenges. However, the power of the blog gives individuals an incredible power to seek redress of grievances by organizing with limited resources and a claim to right a wrong.