On May 8, 2012, the New York Court of Appeals issued a ruling that merely viewing child pornography on the internet is not a criminal act under the New York Penal Code. The People v. James D. Kent, Index 70, NYLJ 1202552838004, at *1 (Ct. of App., Decided May 8, 2012). The rationale behind the decision of the state’s highest court bears discussion on a much broader scale due to its potential bearing on the legal definitions of procurement, possession and control of digital property.

The key question under consideration was the evidentiary significance of temporary internet files (or cache files) that are automatically created and stored on a the hard drive of a computer while the user is browsing the internet. The Appellate Court concluded that the act of viewing a web image alone does not, absent other proof, constitute either possession or procurement.

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The following article was first published by our colleague Michael Schmidt on his blog, Social Media Employment Law Blog. It is part of our continuing effort to keep Cyberinquirer readers on top of decisions relevant to Social Media in the context of litigation. Thanks for the reprint, Mike.

Two weeks ago, I discussed the California case of PhoneDog v. Kravitz, where an employee, who used a company Twitter account as part of his job duties, left the company and continued to use the same Twitter account and tweet to the same followers. The (former) employee claimed that he had the right to continue tweeting, and PhoneDog responded that he was barking up the wrong tree (best I could do at the moment). As I mentioned in my last post, the court had denied the employee’s attempt to dismiss the entire case at inception, and allowed the company to amend its complaint to provide more specificity on some of its claims. Time for an update.

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The following article, written by my colleague Nicole Moody, first appeared in the Chicago Daily Law Bulletin. Thanks to Nicole for allowing us to republish it here.

Rick Bortnick

Many of us have been there. Sipping our morning coffee, signing into our Facebook accounts, waiting to see what notifications will greet us. We are intrigued to see that we have a friend request.  Who could it be? An acquaintance from the past? A new colleague who we met at work? Whoever it is, we know that by accepting the request we will be granted access into this individual’s life and will know more about them in five minutes than we would know in a lifetime of small talk.

Due to the use of usernames and passwords, there is a belief that information shared on Facebook is confidential unless publicly shared. However, courts around the country are now addressing just how private this information really is.

In cases nationwide, litigants are asking courts to grant unfettered access to other parties’ Facebook or other social media accounts. Inevitably, in the age of status updates and hashtags, poking and friending, the lines between public and private information have become blurred. This trend has become increasingly prevalent in the insurance industry as insurance companies have realized the usefulness of social media in litigation. 

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The following article was first published by our colleague Michael Schmidt on his blog, Social Media Employment Law Blog. It is part of our continuing effort to keep Cyberinquirer readers on top of decisions relevant to Social Media in the context of litigation. Thanks for the reprint, Mike.

What would you do if your employee continued to use your company’s Twitter account after he stopped working for you?

What if your (former) employee claimed that he, not your company, actually owned the rights to the Twitter followers?

Ever thought about it?

I have posted several times about how social media has not created new causes of action, but rather has provided a new application for traditional claims. One of the areas that I surmised would develop in time was the interplay between social media and post-employment competition and trade secret rights. According to two new decisions, that time has apparently come.

In PhoneDog v. Kravitz (Northern District of California), the company gave its employee (Kravitz) use of a Twitter account as part of his employment. Kravitz tweeted information to promote the company’s services, and generated approximately 17,000 followers. Kravitz left the company, and, while he changed the account “handle”, he continued to use the same account to tweet to the same followers. PhoneDog sued Kravitz for continuing to use the Twitter account, claiming that the “compilation of subscribers and the password used to access the account” constituted company trade secrets. Valuing each of the 17,000 followers at $2.50, the company sought damages of $340,000 for “stealing” each of those followers for 8 months.

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The following article first appeared on Mike Schmidt’s Cozen O’Connor blog, socialmediaemploymentlawblog.com. Thanks to Mike for allowing us to republish it as a follow-up to our December 2, 2011 post, Keep Your Friends Close, But Your Facebook Posts Closer, which addresses a Pennsylvania trial court’s ruling that ”plaintiff’s Facebook information is discoverable, provided the defendant has a good faith basis for seeking the material,” and our October 16, 2011 post, Facebook: Everything You Want to Know and More… Just a Discovery Request Away, where we comment on how easy it actually is to obtain information posted on Facebook.

Needless to say, the discoverability of social media posts is an important issue for litigants on both sides of the “v” and will continue to be the subject of fiercely-litigated motion practice. We will monitor the issue and post updates as courts across the country rule on this imporant, oftentimes substantively dispositive, issue.

Rick Bortnick

One of the high-profile battles being fought in the social media world continues to be over the ability of one party in a lawsuit to compel the other party to produce messages, posts, pictures, and other “private” things done over a social networking site like Facebook.   The trend continues to reveal that courts are willing to compel disclosure in the right circumstances, and the most recent decision issued by a New York appellate court is no different.

In Patterson v. Turner Construction Company (New York Supreme Court, Appellate Division, First Department, October 27, 2011), the plaintiff sued for personal injury damages that included physical and psychological injuries that he claims to have suffered.   During the lawsuit, the defendant asked the court to direct the plaintiff to provide an authorization allowing defendant to obtain “all of plaintiff’s Facebook records compiled after the incident alleged in the complaint, including any records previously deleted or archived[.]”   The plaintiff, obviously, fought that request.

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As regular Cyberinquirer readers know, on October 12, 2011, the SEC’s Division of Corporate Finance published “suggested” Guidance on public companies’ disclosures of their cyber risks and exposures. I published a personal perspective on the implications of the Guidance in an October 29, 2011 post (here). Since then, our friend John Doernberg of William Gallagher Associates in Boston has written an excellent, thoughtful article which adopts a more technical approach. As many of you may know, John is a Vice President at William Gallagher and focuses on privacy, information security and risk management issues. Before becoming an insurance broker in 1995, John practiced law at leading firms in New York and Boston. The following article first appeared at John’s own site, http://blog.wgains.com/?s=Doernberg, and is being republished here with his permission. Thanks John!

Rick Bortnick

Increased corporate reliance on computer networks and electronic data has brought a corresponding increase in risks associated with breaches of their security. Such breaches have become more frequent and severe. With these Guidelines, the Division has indicated that public companies and their advisors should focus greater attention on how disclosure obligations under the federal securities laws may be affected by the potential financial and operational impact of cybersecurity breaches.

The Guidelines note that cybersecurity breaches (generically referred to as cyber incidents) can be malicious (cyber-attacks) or unintentional. The Guidelines provide something of a rogue’s gallery of cyber malice: the gaining of unauthorized access to steal or corrupt sensitive data or to disrupt operations, denial of service attacks, sophisticated electronic circumvention of network security, and social engineering techniques such as phishing to extract passwords or other information that will enable the gaining of access.

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“Facebook helps you connect and share with the people in your life.” That is the Facebook mantra, as displayed on its homepage, and the opening line of a recent – and extremely thorough! – Pennsylvania trial court decision regarding the discoverability of a plaintiff’s relevant Facebook information. The court’s conclusion: a plaintiff’s Facebook information is discoverable, provided the defendant has a good faith basis for seeking the material, because there is no confidential social networking privilege under Pennsylvania law and because the Stored Communications Act only applies to internet service providers. The take-away for Facebook users: be careful what you post – it’s not as “private” as you think!

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With the help of our readers, Cyberinquirer has again been named as one of LexisNexis’s Top Insurance blogs 0f 2011. We are obviously flattered, particularly in view of the quality of the other blogs selected to this august list.  It shows that people are reading what we have to say. And that, perhaps, they are interested in what we have to say. We sure hope that to be the case. We love thinking, reading and talking about tech, privacy and cyber related issues (yeah, admittedly we’re geeks).  And we hope that you, our readers, gain from our insights, even if you don’t always agree with them.

So now that we’ve been recognized by LexisNexis for the second straight period, maybe some of you, our readers, will be more comfortable authoring a piece we can post. Remember, this blog is open to all relevant, responsible submissions, be they articles, commentaries, or just comments on something we have said that strikes a chord.  If you’ve got something to say that may be of interest to others in the community, email it to me at rbortnick@cozen.com and I will get back with you promptly. We strive to publish fresh, interesting content on a regular  basis, but its not always easy, as we do maintain law practices. And have other commitments. So flip your authored pieces. We’d actually appreciate it.

Needless to say, we couldn’t have done this on our own. So the honor is not just for us, but for you too. Thanks.

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Its not often that worlds collide or that interests converge into one amorphous epiphany. But that’s exactly what happened to me recently, when the Division of Corporate Finance (DCF) of the U.S. Securities and Exchange Commission (SEC) issued a Disclosure Guidance identifying the types of information public companies should consider disclosing about cyber risks and events that could impact their financial statements. Now, the DCF has cautioned that the Disclosure Guidance only represents its own views and “is not a rule, regulation, or statement of the Securities and Exchange Commission.” The DCF also emphasizes right up front that ”the Commission has neither approved nor disapproved its content.” Yeah, right. YOU be an officer or director or officer of a company that does not “comply” with the DCF’s  ”recommendations.”

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I recently attended a CLE that had a panel of social media experts who were discussing the role of Facebook, Twitter and MySpace in litigation. During a lull in the question and answer session, the Facebook attorney quipped: “you know, Facebook has already given you everything that you’ve ask for…” Immediately, the audience lifted their heads from their Blackberries and newspapers and started paying attention after this cryptic remark.

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I. Overview

Canada’s privacy regime can be described as a web of legislation at both the federal and provincial/territorial level. Some commentators express concern that this web has become tangled, lacks uniformity and actually undermines the predictability and consistency that, in their view, would exist under a single (federal) privacy regime. Canada has two primary privacy statutes: the Privacy Act and the Personal Information Protection and Electronic Documents Act (“PIPEDA”). The Privacy Act, R.S.C. 1985, c. P-21 (Can.), took effect on July 1, 1983, and imposed certain privacy rights obligations on approximately 250 federal government departments and agencies by limiting the use and disclosure of personal information. The Privacy Act also gives individuals the right to access and, if necessary, correct personal information held by governmental organizations subject to the Act.

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I.                    Introduction

The Internet facilitates the widespread and instantaneous flow of information across international borders.  While the advent of this method of transnational communication has truly created a “global economy,” at the same time, it has engendered problems for companies and their insurers which seek to assess risk and implement information safeguards, particularly in the face of divergent data privacy laws which vary from region to region or may not even exist in certain jurisdictions.  The Asia-Pacific region typifies such a lack of uniformity.  At the same time, the emerging economies in this rapidly growing part of the world have generated promising targets for computer hackers. 

75% of Asia-Pacific enterprises have experienced cyber attacks in the past 12 months.  Perhaps not surprisingly, a 2010 study by Symantec reported that almost half of all Asia-Pacific-based businesses (and 67% in Singapore) ranked cyber risk and information security as their top concern—more so than natural disasters, terrorism, and traditional crime combined.  Cyber attacks and data breaches are on the radar of CEOs and risk managers for good reason: the average cost for a large company to remediate a data breach in Australia increased to nearly $2 million in 2010, which is slightly up from 2009.  See Ponemon Institute/Symantec 2010 Annual Study: Australian Cost of a Data Breach (May 2011).  Notwithstanding the prevalence of such attacks, it is far more likely that a cyber security program is managed as a part of a company’s traditional business risks, with traditional coverages being contorted to cover various components of cyber risk (i.e. property loss, liability to third-parties, business interruption, etc.), rather than by way of a dedicated cyber-specific insurance program.  Still, in light of recent developments, it is virtually certain that companies soon will begin looking to transfer such risk via more efficient and targeted technology insurance forms and policies.   

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First published on September 22, 2011 at e-Discovery Law Review
Monetary sanctions, attorneys fees, and adverse inference jury instructions are the more common type of sanctions imposed on litigants for the spoliation of evidence, or not producing relevant documents. Recently, however, a court has increased the severity and impact of sanctions by applying them not only to current litigation, but also to a party’s future litigation, with the effects lingering for years to come.

The Underlying Suit

“Any competent electronic discovery effort would have located this email.” These words were written in an opinion by a United States District Judge in the Eastern District of Texas in Green v. Blitz U.S.A., Inc., No. 2:07-CV-372 (E.D. Tex., Mar. 1, 2011) Green involved a product liability suit in which the requirement of a flame arrester was in dispute. The jury returned a defense verdict, and the plaintiff collected a low settlement amount as part of a high-low settlement agreement. During discovery in a subsequent case with the same defendant and plaintiff’s counsel, counsel learned of documents that were not produced in Green. The plaintiff then filed a motion for sanctions against the defendant in Green and a motion to re-open the Green case. While the court denied the motion to re-open because the statute of limitations had expired, the court did impose sanctions for the discovery abuse.

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The protracted copyright infringement class action by freelance writers seeking compensation for pieces published without authorization in various online databases has hit another roadblock.

In re Literary Works in Electronic Databases Copyright Litigation involves claims for infringement of works as to some of which the copyrights are registered and the vast majority are unregistered. This detail – the registered/non-registered distinction – keeps stymieing resolution of the case. In 2007, after the parties had spent years negotiating a settlement and gaining district court approval, the Second Circuit threw out the settlement, holding that the district court lacked subject matter jurisdiction to approve the settlement because many of the claims to be resolved were based on unregistered works, and registration is a jurisdictional predicate to a copyright infringement suit. The Supreme Court finally reversed in 2010, and the parties went back to the district court and again gained approval of the settlement.

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The ABA has issued a formal ethics opinion that provides guidance to lawyers whose clients use an employer’s email account to send or receive email from counsel.  In Formal Opinion 11-459, the Standing Committee on Ethics and Professional Responsibility urges lawyers to warn their clients that the confidentiality of electronic communications may be jeopardized if the employer or other third party, such as a hotel or library, has the potential to access email or other correspondence hosted on the third party’s computer system.

When clients use an employer’s computer, smartphone or other telecommunications device, or an employer’s email account, the employer may be able to obtain access to the communications and take advantage of that opportunity in various contexts, such as when the client is engaged in an employment dispute or when the employer is responding to a subpoena or document discovery in litigation.

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A recent Ninth Circuit opinion on class certification demonstrates both the potentially fact-intensive nature of class action “typicality” issues and the importance of substantive law in determining whether common issues predominate over individual issues.

In Stearns v. Ticketmaster Corp., the Ninth Circuit Court of Appeals reviewed several decisions denying class certification to various plaintiffs challenging an allegedly deceptive internet scheme involving Ticketmaster and its one-time affiliate, Entertainment Publications, Inc. (“EPI”). At issue is a link on Ticketmaster’s website to EPI’s Entertainment Rewards program, which allows members paying a monthly fee to download printable coupons.

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The Clerk for the U.S. District Court for the Eastern District of Pennsylvania recently ruled that there is a heavy presumption that prevailing parties may recover certain e-discovery costs under 28 U.S.C. § 1920. Federal Rule of Civil Procedure 54(d)(1) allows prevailing parties to submit bills of costs for certain expenses, enumerated in 28 U.S.C. § 1920, for taxation by the Clerk against the non-prevailing parties. For example, that statute provides for the taxation of costs related to obtaining copies of transcripts and printing. More significantly, the statute provides for the taxation of “[f]ees for exemplification and the cost of making copies of any materials where the copies are necessarily obtained for use in the case.” 28 U.S.C. § 1920(4). While the term “exemplification” is undefined, federal district clerks have traditionally awarded, as exemplification and copying costs, those costs related to the production of paper documents, photographs, models, maps, blow-ups, charts, and diagrams.

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In a recent decision, a Pennsylvania trial court concluded that no privilege exists to prevent access to non-public social website information of personal injury claimants. Rather, the “paramount ideal” of pursuing truth favors liberal discovery of relevant information on social media sites.

In Zimmerman v. Weis Markets, No. CV-09-1535 (C.P. Northumberland Cty., May 19, 2011), the court rejected a personal injury plaintiff’s objections to providing non-public portions of plaintiff’s Facebook and MySpace pages, after the defendant demonstrated that the public portions of those pages included recent photographs and comments that appeared to contradict the plaintiff’s claims of physical and emotional distress. The court agreed with the rationale stated in other recent cases holding that an individual who voluntarily posts photos and information on social networking sites does so with the intention of sharing, and thus cannot later claim any expectation of privacy. The court noted that the privacy policies of Facebook and MySpace disclose that any information posted may become publicly available at the user’s own risk.

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Just as lawyers now routinely conduct due diligence on opposing parties’ social media pages. some lawyers also are monitoring postings by jurors on social media sites.

In a recent ethics opinion issued by the New York County Lawyers’ Association Committee on Professional Ethics (No. 743, 5/18/11), the committee concluded that an attorney may review jurors’ postings on publicly available social networking sites during trial. But they must not “friend” or “tweet” jurors, subscribe to their Twitter accounts, or otherwise contact them, either directly or through others.

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It has become common practice for lawyers to mine social media pages of parties and witnesses for discovery purposes. The posts and photos may show a party to be lying about the extent of his or her claimed injury or disability, or they could undermine or support other claims. Facebook and other social media sites also have become fertile ground for cutting edge ethical questions posed to state Bar ethics committees.

In a recent ethics opinion issued by the San Diego County Bar Association, a lawyer asked if it was proper to “friend” request high-ranking employees of a company the lawyer was suing on behalf of a former employee pursuing a wrongful discharge case. The lawyer believed that these high-ranking employees were dissatisfied with the company and likely had been posting negative information on their social media pages that were accessible only to those persons who had been accepted as “friends”.

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Faced with revitalizing a deteriorated economy, formulating a national budget, and the aftermath of Osama Bin Laden’s death, President Barack Obama has his hands full. Yet, in the midst of all the issues commanding the White House’s attention, the Obama Administration somehow has found time to address the threats to our nation’s cyber security.

According to Business Insurance, on Thursday, May 12, 2011, the Obama Administration proposed cyber security legislation to improve protection for individuals and the federal government’s computer and network systems. The proposed legislation would address national data breach reporting by creating simpler and standardized reporting requirements for the 47 states that contain such requirements. The proposal would also synchronize penalties for computer crimes with other crimes. Additionally, the government, through the Department of Homeland Security, would become directly involved in assisting the industry as well as state and local governments in policing and enforcing cyber security. The proposed legislation encourages the state and local governments to share information with the Department of Homeland Security about cyber threats or related incidents by providing them with immunity for doing so.  
 
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On January 20, 2011, a federal class action lawsuit was filed against MySpace in the United States District Court for the Eastern District of New York. If successful, this new lawsuit could have dramatic implications for social networking sites and their users. Either way, it provides another opportunity to make a couple of privacy-related points for employers.

The MySpace lawsuit was filed on behalf of all former and current users of MySpace, who seek damages for the alleged improper and voluntary disclosure of personal and private information and data in response to foreign court search warrants without the knowledge or authorization of the MySpace users. The class alleges that search warrants issued by state judges for certain information have no force and effect when they are issued to MySpace’s California headquarters from other states, but that MySpace nevertheless provided responsive information and data voluntarily.

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Whether you own a website where you allow blogs and comments to be posted, or if you are the blogger/poster, listen up. 

For those of you who haven’t heard of Righthaven LLC, they are to the blogging world what editors are to the Law Review world…cite-checking and anti-plagiarism “proponents” (let’s call ‘em that, for argument’s sake).  Righthaven’s been making quite a splash and has gained popularity among news chains since its coming into existence in the spring of 2010.  According to David Kravets’ article, “Righthaven Expands Troll Operation With Newspaper Giant”[1], Righthaven has filed over 180 lawsuits and has settled over 70 of them already.  Its major suppliers of copyrighted material include Stephens Media (owners of Las Vegas Review-Journal), MediaNews Group (owners of San Jose Mercury News and the Denver Post), and WEHCO Media (owners of Arkansas Democrat-Gazette and Chattanooga Times Free Fress), to name a few.[2] Owned by Net Sortie Systems LLC and SI Content Monitor LLC, Righthaven is the brain-child of Las Vegas-based IP attorney, Steven Gibson.[3] Righthaven’s clients assign their rights in the content to Righthaven, who then sues for copyright infringement.[4] 

In order to analyze the problems faced by the parties to such lawsuits, we’ll have to discuss the U.S. Copyright Act, as well as the Digital Millennium Copyright Act (“DMCA”).

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We have all heard a story about some unfortunate personal injury lawyer who forgot to remind his client that ‘what happens in Vegas stays on YouTube’. Personal injury and family lawyers are becoming highly attuned to the crucial role that social media websites can play in civil litigation.

Yet when it comes to cases involving property damage, it appears that lawyers and other subrogation professionals have overlooked the potential utility of these sites in advancing their case. This post highlights some important ways in which YouTube can play a role in a subrogated claim for property damage.

1.   A Search Engine for Video Evidence

YouTube is the second largest search engine in the world. As of March, 2010, twenty-four hours of video was being uploaded to YouTube every minute. To put this in perspective, consider that more video is uploaded to YouTube in 60 days than all three major news networks have created in 60 years. [1] What does this mean? If you have a property damage claim, stop for a minute and think about whether it was an event that was likely to warrant a second glance. Were there flames? An explosion? Did a massive wall of water sweep over the property, obliterating all before it? In that case, it is likely that someone not only had taken that second glance, but pulled out his or her cell phone, recorded a video clip, and posted it on YouTube. Check it out. Simply enter the loss date, location and a one-word description into YouTube’s search engine and you may discover valuable evidence that can provide crucial insights into the loss.

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A “trend” is generally defined as a general course, drift or prevailing tendency.   In the battle between the potential privacy rights of a social networking site user and the desire of a lawsuit party to have full access to the private portions of that user’s profile, the trend favoring full and unfettered access has become clearer with a decision just issued by the Pennsylvania Court of Common Pleas in the case of McMillen v. Hummingbird Speedway, Inc.

In McMillen, the plaintiff was injured during a stock car race, and sued for damages after being rear-ended during a cooling down lap.   He alleged significant physical injuries and overall loss of general health and vitality, as well as an “inability to enjoy certain pleasures of life.” During the lawsuit, the defendants requested that plaintiff identify the name of all sites to which he belonged, and to identify his user name(s), login name(s), and passwords. Plaintiff responded by stating that he belonged to Facebook and MySpace, but he refused to give the other requested information based on confidentiality and privacy grounds.

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There have been a recent flurry of blog posts and media stories warning internet users about the potential dangers of posting their whereabouts on social networking sites, as such personal information is being used by opportunists to facilitate crimes. For example, just in the last month, three men in Nashua, New Hampshire allegedly used information they obtained from users’ Facebook status updates to learn when the users would not be home and thereupon broke into their vacant and vulnerable residences. Although Facebook has denied any link between its site and the crimes, the Nashua police believe that detailed information about the posters’ travel plans provided the thieves with sufficient information to know when the homes would be unoccupied.

Of course, the incidence of such crimes has not been widely disseminated through traditional media sources, such as newspapers, radio and television. As such, most Americans are unaware of this increasing phenomena. At the same time, internet users are more widely and more frequently publishing their personal information, including their travel and vacation plans, on social networking and other public sites. Moreover, beyond the routine “tweets” and run-of-the-mill social networking status updates, new applications for cellular phones and PDAs are being created to facilitate geographical updates. These applications such as “Foursquare,” “Gowalla” and “Facebook Places,” enable users to instantly identify their current physical location on the profiles they have created on social networking sites. Needless to say, allowing geographical information to freely be disclosed to the public can provide opportunists with even more accurate information about the whereabouts of their victims and their distance from an unoccupied and vulnerable residence.

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Data security breaches pose a serious threat to a corporation’s financial stability as well as to its credibility in the marketplace. Most notably, the 2007 TJX data security breach, where 45 million credit card and debit card numbers were stolen, cost the company over $4 billion. For many corporations, the solution is to purchase a cyber liability insurance policy, which provides insurance coverage in the event of such a breach.

The risk of data security breaches has also affected students of universities throughout the nation. In June of last year, Cornell University officials informed 45,000 members of the school’s community that their personal information, including their names and social security numbers, was stolen after a University-owned laptop was stolen. Due to such breaches, college officials nationwide have begun purchasing cyber liability insurance policies to offset the financial burdens of a data security breach.

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Fifty years ago, a superhero leaped tall buildings in a single bound and used x-ray vision to catch evil criminals.   Today, some of the world’s most threatening criminals are computer hackers.  Superman may not be able to save us from cataclysmic cyber attacks, but we can rest a little easier knowing seven cyber guardians are holding keys to one of society’s most valuable commodities—the internet.  

ICAAN, the Internet Corporation for Assigned Names and Numbers, has provided “keys” to the internet to seven members of the global community. As discussed in prior posts, ICAAN is a non-profit watchdog group that helped establish Domain Name System Security Extensions,  or DNSSEC.   The DNSSEC—which just became enabled this year— is a critical security technology that lies at the core of the internet’s global addressing system.  It protects the very heart of the internet by ensuring that users reach the intended web address.

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Google, Facebook, Twitter, Foursquare—millions of Americans, including myself, depend on these cyber sites as their gateway to information and communication in the outside world.  What we may not realize, or choose to ignore for convenience’s sake, is that this gateway lies on a two-way street. The information that we seek using websites such as Google and what we communicate on Facebook and Twitter provide companies with vital data to better market their products to us.  This use of information is referred to as “data mining. ”

An example of data mining can be seen in the advertisements that pop up on the side of your Facebook home page.  Such ads are often relevant to the information posted on your “Profile” page, such as advertisements promoting products from your college alma mater. 

At the outset, data mining seems like a win-win situation for both the consumer and the seller—the consumer is marketed with a product in which they are seemingly interested and the company has utilized its advertising budget in an informed, cost-effective manner.  At the same time, however, the threat of an invasion of privacy is real and has the attention of members of Congress and federal officials to create legislation regulating the way in which, and the extent to which, our personal information is shared with third parties. 

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Your employee is being paid millions of dollars each year to perform his job. Right in the middle of today’s tasks, as he is about to receive instruction from his supervisor, your employee takes out his cell phone and posts a “tweet” on his feelings about his performance to all of his friends who have signed up to follow his twitter board. Would you have a problem with that?

At least two employers did. News surfaced last week that Eric Mangini, head coach of the NFL’s Cleveland Browns, has threatened to fine players for tweeting about events at training camp, and particularly during team meetings. This on the heels of the well-publicized action taken last year by the NBA’s Milwaukee Bucks. In that case, Bucks forward Charlie Villanueva apparently posted a message to his Twitter feed from his cell phone when he went into the locker room at halftime of a basketball game against the Boston Celtics. According to reports, the tweet that was posted from Villanueva’s “CV31” screen name read: “In da locker room, snuck to post my twitt. We’re playing the Celtics, tie ball game at da half. Coach wants more toughness. I gotta step up.”

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One of the difficult things to predict with regard to the use of social media in the employment setting continues to be the extent to which traditional legal claims apply equally to new social media outlets.   We continue to advise employers that it is imperative to ensure that care is also taken to create policies and train employees on the use of social media in and out of the office setting, and not to let the informality and ease of the Internet lull employers into a false sense of security.   On July 22, 2010, a New York Supreme Court Judge applied the tort of defamation to statements on Facebook in a case that offers an important message to employers.

The case of Finkel v. Dauber (New York Supreme Court, Nassau County) centered on statements posted by a Facebook group known as “90 Cents Short of a Dollar.” Plaintiff alleged that she was defamed by the group’s postings that stated “unbeknownst to many, [plaintiff] acquired AIDS while on a cruise to Africa” and then “persisted to screw a baboon which caused the epidemic to spread.”   The postings further defamed plaintiff, she alleged, by stating “[w]hile in Africa she was seen fucking a horse.”   And other intelligent banter.

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On July 23, 2010, the United States Court of Appeals for the Eighth Circuit issued an important decision in Eyeblaster, Inc. v. Federal Ins. Co., 2010, U.S. App. LEXIS 15152, No. Civ. A. 08-3640, finding concurrent coverage under both a General Liability (“CGL”) insurance policy and a separate Information and Network Technology Errors and Omissions Liability (“E&O”) policy in circumstances where an online marketing company installed software on a consumer’s computer system, allegedly corrupting the computer’s software operating system.

Eyeblaster Inc. (“Eyeblaster”), the policyholder, is a company that creates, delivers and manages online interactive advertising. For the period December 5, 2006, to December 5, 2007, it was insured under two concurrent policies issued by Federal Insurance Company (“Federal”): (1) a CGL policy covering occurrences which cause damage to tangible property, and (2) an E&O policy which covered claims for financial loss caused by a wrongful act in connection with a product’s failure to perform its intended function or serve its intended purpose, resulting in damage to intangible property. As to the latter policy, intangible property included software, data and other electronic information. Both policies were “duty to defend” forms.

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Interviewing for your first job as a teenager is as exciting as it is intimidating. Thoughts of what to do with your first paycheck consume your mind as you rehearse your best “do-you-want-fries-with-that” smile. The interview proceeds flawlessly and you start to count the dollar signs as you await the job offer. But imagine your surprise when you are informed that you did not get the job because your background check revealed that you are over $75,000 in debt and five years behind in your child support payments for your eleven year old child…a terrifying thought considering you are only 16 years old.

Adults aren’t the only victims of identity theft. Child identity theft is an increasing and understated crime. A child’s Social Security Number (“SSN”) is the perfect target, as the theft typically goes undetected until years after the crime has taken place. Indeed, the crime might not be discovered until the rightful owner/victim uses his or her SSN for the first time years later. This revelation often occurs when the victim applies for his or her first job or financial aid before college.

The scheme works as follows: businesses are using various techniques to search the Internet for dormant SSNs. These numbers often belong to long-term inmates, dead people or children. Obtaining them is not as difficult as one may think, as SSNs are distributed systematically depending on age, geographical location and when the number is issued. Once it has been determined that no one is actively using the number to obtain credit, the numbers are offered for sale.

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“A lawyer is never entirely comfortable with a friendly divorce, anymore than a good mortician wants to finish his job and then have the patient sit up on the table.”  Jean Kerr

A new company out of Dallas, DivorceApps.com, is selling applications aimed at helping people navigate the legal waters of divorce. A Texas family lawyer, Michelle May O’Neil, started the company in March of this year. Two apps currently are for sale on iphones at a cost of $9.99 USD.  Applications that are currently available online are described as follows:

(1) Cost and Prep Application: A system that 1) tracks the information that will be required either by legal counsel or the other side of the case and 2) helps the user track the costs of divorce. For example, the “Divorce Cost” portion of the application provides a scroll down list of categories that enables the user to gain a better understanding of the costs of divorce. The “Scroll Down” component of the application allows the user to scroll through the categories of information to determine the documents and information that will be applicable to their case.

(2) Estate Divider Application: The “Estate Divider” is a system that purports to allow a user to work through the overall division of their Estate. The user can:

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His name is Ghyslain Raza, but you may know of him as “Star Wars Kid”, a portly 15-year-old student at a Quebec private high school who had filmed himself wielding a mock light saber, pretending to be a Star Wars character in combat. The two-minute video was supposed to be private, but he left it lying around at his school where three students, who did not know the teenager, came across the video, posted it on the Internet on April 14, 2003, adding a message inviting people to make insulting remarks about the clip.

Unfortunately for him, it wasn’t just his friends who found the footage so amusing. The video went ‘viral’. One Web log that posted the video was allegedly downloaded 1.1 million times, and by October 2004 one Internet site dedicated to the video had recorded 76 million visits. According to UK marketing firm The Viral Factory, it became the most downloaded video of 2006. So mortified was the teenager that he dropped out of school and finished the semester at a psychiatric ward. According to the student, “It was simply unbearable, totally. It was impossible to attend class.”  More than 35 other revised versions of the video clip, created by other people, have found their way to the Internet, with additional sound and visual effects.

This is an extreme but far from unique example of the devastation wrought by cyber-bullying, the term given to internet conduct in which students harass other students by e-mail and on the internet. Given the potentially devastating consequences of cyberbullying, should schools have the power to discipline their students engaging in this form of harmful conduct?

A major issue confronting school boards is that cyberbullying usually does not take place at school, although its effects can later reverberate among students during school hours. Students may post offensive material from home, or other times outside of school hours, but the targets are fellow classmates. Is it appropriate for a school board to discipline a student for posting such material simply because the postings are being accessed by other students at school or target other students?  At the same time, with power comes responsibility – if school boards have the power to discipline students for their behavior outside of school, are schools then to be mandated with the responsibility to essentially monitor and censor the world-wide web? Just how far should a school board’s jurisdiction extend regarding inappropriate off-school student e-conduct?

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A man and a lion were arguing about who was best, each one seeking evidence in support of his claim. They came to a tombstone on which a man was shown in the act of strangling a lion, and the man offered this picture as evidence. The lion replied, “It was a man who painted this; if a lion had painted it, you would instead see a lion strangling a man. But let’s look at some real evidence instead.” The lion then brought the man to the amphitheater and showed him so he could see with his own eyes just how a lion strangles a man. The lion then concluded, “A pretty picture is not proof: Facts are the only real evidence!”

The moral of the story has indeed changed since the times of Aesop, at least in today’s courtroom. Social networking websites such as Facebook, MySpace, and Twitter invite attorneys and their clients into a lion’s den of pictures and postings, creating a haven for evidentiary consequences that can be unexpected obstacles if attorneys are unprepared to counter them.

INTRODUCTION

With claims such as “Facebook is a great place to keep in touch with friends,” “Using Twitter is going to change the way you [stay] in touch,” and “MySpace lets you meet your friends’ friends,” social networking websites are, admittedly, enticing. This article surveys recent evidentiary issues involving these sites across multiple practice areas and counsels how to avoid some of the adverse rulings discussed herein.

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Odd as it may seem to those of us who live and breathe cyber, tech and privacy insurance, I have heard anecdotally of municipal authorities who profess that their cities and towns do not need to incur the expense of buying these products. “Why do we need them? We don’t operate on the internet,” they reportedly have said.

Well, my response is “why don’t you think you need them?” Do you maintain a bank account? Do you store personally identifiable information about private citizens, whether in your property records, police files, tax databases or otherwise? Are your employees able to access your municipality’s computer systems remotely? Is it really possible that every single piece of information you maintain is recorded on paper and nothing is stored on a mainframe, whether located on- or off-site? Come on. Its 2010. That’s virtually impossible, isn’t it? Haven’t you read my December 23, 2009 post “No One is Immune. Even Government Entities Need Cyber/Tech Insurance?”

Since that posting, additional municipalities have suffered cyber attacks and been the subject of cyber lawsuits.

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Jurors are not supposed to look at media coverage of the case during a trial since their verdicts are supposed to based on the evidence presented in a trial, rather than media reports. But can they really resist taking a sneak peek on the Internet?

In February of 2010, the U.K.’s Ministry of Justice released a very interesting report, titled “Are Juries Fair?“, by Professor Cheryl Thomas.  Among other things, the study examined jurors’ use of the Internet to look up information about their cases in both long, high profile cases and standard cases lasting less than two weeks, with little media coverage. The report found:

• All jurors who looked for information about their case during the trial looked for it on the Internet, as opposed to television, newspapers or some other source. (Well, okay, so this one wasn’t exactly a big surprise…).

• More jurors said they “saw” information on the Internet than admitted to “looking for it” on the Internet. Since they were doing something that a  judge should have told them that they were not supposed to do, this may explain why jurors were more likely to say the saw reports on the Internet than said they looked for it. (See? Lawyers aren’t the only people in the courtroom who resort to semantics….). But just what are the figures?

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Who would have thought a comment as innocent as “Just walked into work at Cozen O’Connor-Toronto…so much work to get done” could potentially cause you so much trouble? 

I came across an article this weekend by Tracy Staedter, titled “I’m Not Home: Please Rob Me”. Ready to become paranoid?  Read the article – it’s short and to the point.  Ever send out Evites?  How about prior tweets, MySpace posts, etc. inviting people to your place and including an address?   Bingo!  Better pack up and move quick! 

The website causing havoc is www.PleaseRobMe.com.  Check it out…make sure you aren’t on the site…then check again after every time you tweet, post, etc.  Do you have the time to constantly check?  Probably not.  Should you?  Probably.  It may make you paranoid, but then again, shouldn’t you be?  But should the creators of the website be blamed – legally, morally, ethically?  Should they be held accountable for what you put out into the public realm?  Can you sue for violation of your privacy rights?  Do you really have an expectation of privacy in any of those posts?  In an age where MySpace, Friendster and other social networking sites regularly have their records subpoenaed, why should anyone think that anything they post will be “private”?  What piqued my curiosity even more was how this website could apply in the criminal or tort law application.  Can this website be used to substantiate or corroborate an accused’s alibi – “Your Honor, look!  I have proof that I wasn’t in the city when the crime occurred…I tweeted that I would be in Los Angeles!”  Look, my knowledge of Canadian (or U.S., for that matter) Criminal Law/Procedure does not extend further than the 800 or so pages of textbooks I read while in law school.  But surely this website can be put to more use than just what the creators intended.  So long as a proper foundation is laid, and the purported evidence is relevant, it may be admitted, right?  Something to definitely consider as a defense attorney. 

The creators of the website claim the site is supposed to help us…to open our eyes to the evil out in the world.  Call me crazy, but perhaps a simple email addressed to me would have been more appreciated…though it leaves one wondering if such a logical course of action would have been as effective.

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As the cyber war of words heats up between the U.S. and China, the rest of the world is taking notice….and proposing action.

Most recently, the head of the United Nations’ communication and technology agency, Secretary General Hamadoun Toure of the International Telecommunications Union, proposed a treaty whereby member countries agree not to precipitate a cyber attack against other member countries. “The framework would look like a peace treaty before a war,” he is reported to have said.

Secretary Toure’s proposal follows a series of concerns expressed at last month’s World Economic Forum in Davos-Klosters, Switzerland, including a harsh warning that cyber attacks could amount to a declaration of war. According to Secretary Toure, “[a] cyber war would be worse than a tsunami – a catastrophe.” Because of the potential devastating consequences of a cyber war, the Secretary strongly recommended that countries agree not to harbor cyber criminals and “commit themselves not to attack another.” Of course, nothing is quite as simple as that. For example, John Negroponte, the former director of U.S. intelligence, cautioned that intelligence agencies would “express reservations” about such a treaty. Given the breadth and scope of China’s, Russia’s and other countries’ intelligence operations and their reported limits on information disclosures, Mr. Negroponte’s remarks likely would be echoed by other nations.

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As recognized below in Pamela’s post discussing whether the loss of computer data is “property damage” in the eye of tort law, the issues surrounding cyber/tech/privacy liability and the attendant insurance coverages are not the exclusive province of the United States or U.S. courts.

To the contrary, virtually every country worldwide is increasingly faced with the problem of having to deal with the hard social and legal issues presented by a rapidly evolving cyber world.  So too, policyholders and the insurers who typically grant worldwide coverage under their policies must recognize that the risks faced are not exclusive to the U.S. or our Canadian cousins. The risks are global in nature and policyholders and insurers alike need to stay current with what’s happening outside our cocoon of the Western Hemisphere.

I am certain every reader is aware of the socio-political dispute whereby Google has threatened to withdraw from China amid claims that the Chinese government has hacked into Google’s and other third-parties’ databases, spied on Google email accounts, and tightened blocks on tens of thousands of internet sites, including Facebook, Twitter and YouTube. U.S. Secretary of State Hillary Clinton has spoken on the subject, advocating that companies such as Google refuse to support “politically motivated censorship.” Secretary Clinton also accused China, Tunisia and Uzbekistan of boosting censorship and called on Beijing to investigate the recent cyber attacks on Google and others. (On a side note, just last week, Europe’s principal security and human rights watchdog accused Turkey of blocking 3700 internet sites for “arbitrary and political reasons.”).

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Cyber breaches occur on a daily basis. Or at least it seems like they do…but consider the  breaches that we don’t hear about.

Companies’ fears that their brands could be adversely impacted by reports of cyber breaches mean that we rarely hear about them when they happen. What we do hear about are the very widespread, high profile breaches at large companies where there has been a failure protect a customer’s personal information.

What we often fail to consider is that any entity, commercial or non-profit, public or private, can fall victim to a cyber breach. Certainly, commercial businesses would be expected to insure against such risks. But what about governmental entities? Here’s one example.

The state of Oregon is investigating whether two state agencies violated the Oregon Consumer Identity Theft Protection Act. Each year thousands of Oregonians become victims of identity theft. According to the Federal Trade Commission, Oregon is ranked 13th in the nation for this crime. In response,  both Oregon businesses and government have clear direction and expectations under the Act to ensure the safety of the personal identifying information they maintain. Personal information includes a consumer’s name in combination with a Social Security number, Oregon drivers license number or Oregon identification card, financial, credit or debit card number along with a security or access code or password that would allow someone access to a consumer’s financial account. Specific protections under the Act are detailed on the website of Oregon government’s Division of Finance and Corporate Securities (DFCS) , and include the following:

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LawPRO Magazine is published by the Lawyers’ Professional Indemnity Company (LPIC), the wholly Canadian owned insurance company that provides mandatory professional liability insurance to lawyers in private practice in Ontario.

In the December 2009 issue, LawPRO Magazine has run a “Social Media” theme, dealing with “Why, What and How to Do It Right”, including an article  that sets out a useful summary of Canadian case law on the use of social networking sites in litigation:  “Litigation and Online Social Networking Sites“.

Other articles that may be of interest include:

• “Social Media: Why?” - An overview of how social media are changing the legal landscape.
• “Social Media: What?” – A guide through the many social media tools available PLUS interviews with five lawyers who walk the social media talk.
• “Social Media: How?”  – A primer on social media as marketing and networking tools in law practice.
• “Social media pitfalls to avoid” -  A discussion of some of the dangers inherent in using social networking tools, and how to safely exploit the marketing opportunities they do offer.

LawPRO Magazine also offeres a number of technology-related articles with practical information for lawyers and businesses, all of which are freely available online.

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Remember the good ol’ days of the Commodore 64, back when fluorescent colors were fashionable and “Computer, earl grey…hot” was to boldly go where no one has gone before?

Well, those days are now behind us, and unless you’re one of the stubborn few who still use a phone line to dial into “those newfangled internets”, you have probably heard of Google’s new search by site application, “Google Goggles”.

On Monday, Google announced the launch of a new search engine that allows users to perform an internet search simply by submitting a photograph. Instead of using words, you can take a picture of an object with your camera phone: Google will attempt to recognize the object, and return relevant search results to you. The experimental search-by-sight feature, called Google Goggles, has a database of billions of images that informs its analysis of what’s been uploaded. Vic Gondotra, Google’s vice president of engineering, has said: “It is our goal to be able to identify any image. It represents our earliest efforts in the field of computer vision. You can take a picture of an item, use that picture of whatever you take as the query.” The application is still in a very early stage of development, however, and works best with objects, books, album covers, artwork, landmarks, places, and logos. You can view Google’s video of the application below:

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The issue of defamation on the internet is an interesting one because, perhaps contrary to intuition, the tort of defamation is generally considered to occur in the location where defamatory material is accessed, rather than where it is published. Dow Jones & Company v. Gutnick, a 2002 decision of the High Court of Australia, was the first case to reach a final court that considered the nature of defamation on the Internet. Dow Jones, a US company, allegedly defamed an Australian businessman in an article on the Internet. Dow Jones argued that the suit should be heard in the US, not Australia, because that is where the article was uploaded. They argued that the Internet, being such a revolutionary development in communications, deserved a new legal response; that the High Court should develop a global theory of defamation liability. The High Court declined to do so, holding that long-established principles of Anglo-Australian defamation law were applicable to online defamation. Canada appears to have followed suit.

The consequence is that regardless of whether online defamatory material has been posted and hosted in the United States, case law developments with respect to internet defamation in foreign jurisdictions may be quite relevant in determining the liability of a U.S. resident for posting defamatory content.

For a good review of the Dow Jones case, see A Result Contrary to Intuition: Defamation on the Internet and the High Court of Australia.
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In actions for libel and slander, “publication” refers to the communication of defamatory material to a third person. Does hyperlinking to a website containing defamatory material amount to publication of that material in the eyes of the law?

This was the issue that was recently considered by the B.C. Court of Appeal in the case of Crookes v. Newton, the first case at the appellate level in Canada to consider whether the creation of a hyperlink to a site that contains defamatory material can make the creator liable for the defamatory material.  The plaintiff, Mr. Crookes, claimed that he was defamed in various articles that first appeared on the Internet in 2005. The defendant, Mr. Newton, put up a post on his website under the heading “Free Speech in Canada”, and inserted hyperlinks to webpages that contained the defamatory articles. Significantly, Mr. Newton did not reproduce any of the content from the articles, nor did he comment on them in any way. The relevant post excerpt  (hyperlinks omitted) is as follows:

Under new developments, thanks to the lawsuit, I’ve just met Michael Pilling, who runs OpenPolitics.ca. Based in Toronto, he, too, is being sued for defamation. This time by politician Wayne Crookes. We’ve decided to pool some of our resources to focus more attention on the appalling state of Canada’s ancient and decrepit defamation laws and tomorrow, p2pnet will run a post from Mike [Pilling] on his troubles. He and I will also be releasing a joint press statement in the very near future.

When Mr. Crookes learned of the post, he asked Mr. Newton to remove the hyperlinks, but Mr. Newton refused. Mr. Crookes then sued Mr. Newton, taking the position that by creating the hyperlinks, Mr. Newton became a publisher of the impugned articles found at the hyperlinked websites. Mr. Newton brought a motion for summary judgment, arguing that that Mr. Crookes could not prove that the hyperlinks were brought to the attention of a third party and therefore “published”. Mr. Crookes was able to prove that Mr. Newton’s site had been accessed 1,788 times, but he could not prove whether any visitors to the site had ever clicked on the hyperlinks leading to the webpages containing the defamatory articles.

Mr. Crookes argued that there should be an automatic presumption of publication of the hyperlinked articles – such a presumption exists with respect to defamatory content in newspapers or broadcasts to the general public through the operation of ss. 2 and 12(2) of British Columbia’s Libel and Slander Act which provides:

s. 2. Defamatory words in a broadcast are deemed to be published and to constitute libel. 

s. 12(2).  The publication of a printed copy of a newspaper is proof, in the absence of evidence to the contrary, of the publication of the printed copy.

The Court refused to apply such a presumption, holding that since there is no such statutory provision in Canada providing for the presumed publication of communication distributed through the internet, it should be up to the Legislature, rather than the courts, to create such a presumption. Nor would the majority of the Court infer publication from the fact that Mr. Newton’s site had received 1,788 “hits”. Justice Saunders, speaking for the majority, noted that there was no evidence adduced with respect the volume of “hits” here compared to the norm, the usual behavior of internet readers or “surfers” or the jurisdiction in which they resided. As a result, there was insufficient information on which to infer that the hyperlinks had been accessed at all, let alone by Canadian viewers.

The court concluded that the mere fact that Mr. Newton hyperlinked the impugned sites did not make him a publisher of the material found at the hyperlinked sites. The Court referred to the 2005 case of Carter v. B.C. Federation of Foster Parents Assn., where it had held that a reference to a website in a printed newsletter, where there was no element of control by the defendant over that website, did not amount to publication of the defamatory material found at that site. In that case, a group of defendants had prepared a written newsletter which contained an internet address for an internet chat room which posted defamatory material, with the comment that “more news” could be found at that address. The Trial judge found that the reference in the written newsletter did not in the circumstances amount to publication by the Federation of the defamatory materials found at that site.

In this case, Mr. Newton advised that he saw the hyperlinks “as the equivalent of a footnote or biographical reference”, and the majority of the Court of Appeal agreed. The majority of the court found that there was no substantial difference between referring to a web address in a written article and a mere hyperlink; both required a decision on the part of the reader to access another website, and both required the reader to take a distinct action. Further, in this day of rapidly changing technology, the court was not persuaded that it would take any less effort to access a hyperlink than a web address in an article. Thus, according to the majority, if it is apparent from the context in which the hyperlink is used that it is being used merely as a biographical or similarly limited reference to an original source, without in any way actively encouraging or recommending to the readers that they access that source, then this would not amount to publication. However, the footnote analogy is not a complete answer to the question. If a hyperlink served as an invitation or encouragement to view an impugned site, or in some way adopted a portion of its contents, the hyperlink could be defamatory. For example, a statement that “The truth about [Person X] is found here, where “here” is hyperlinked to defamatory content may be sufficient to constitute defamation. Thus, the issue of whether a hyperlink promulgates defamatory content will require a contextual, fact-specific analysis.

(Of course, therein lies the rub. The majority of the Court did not see encouragement in Mr. Newton’s post, likening the links to a footnote for a reader or card index in a library. The dissenting judge was of the view that the context of the post served as an inducement to readers to click on the hyperlink).

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A married woman in Nevada sued her employer, claiming that he sent her inappropriate emails and gave her unwanted sexual attention. During the lawsuit, the employer’s lawyer discovered that the woman had set up a MySpace account where she pretended to be single. The employer’s lawyer wanted to see her MySpace emails; if this woman was looking for extra-marital affairs on MySpace, this might speak to her credibility. The judge refused.

In a decision of the Nevada District Court, Mackelprang v. Fidelity National Title Agency of Nevada Inc, a married plaintiff alleged that she was sexually harassed by senior members of her company, and that this led to her constructive dismissal. She alleged, among other things, that a vice president of her company sent sexually explicit emails to her office computer a weekly basis. During the course of litigation, the defendant’s lawyer discovered that, a few months after leaving the defendant’s employ, the plaintiff had opened two MySpace accounts; in one of the accounts, the plaintiff identified herself as a single 39 year old female who did not want children, and in another account, she identified herself as a married woman with six children whom she loved.

The defendant’s lawyer obtained a subpoena directing MySpace to produce all records for those accounts, including private email exchanges between the plaintiff and others. In response to the subpoena, MySpace produced the “public” information regarding the accounts, but refused to produce private email messages in the absence of a search warrant or a letter of consent to production by the owner of the account. The plaintiff refused to consent to the obtaining of the release of the private messages on the grounds that the information sought by the defendants were irrelevant to the lawsuit and improperly invaded her privacy. She contended that the defendants were on a “fishing expedition” and that they had no relevant basis for discovering the private email messages on either account.

The defendant’s lawyer brought a motion seeking to compel the plaintiff to consent to production of the emails. The defendant’s pointed to the usual circumstances of the plaintiff’s two MySpace accounts as creating an inference that the plaintiff was using MySpace email to facilitate the same types of electronic and physical relationships that she had characterized as sexual harassment in her lawsuit. If the plaintiff had, in fact, been voluntarily pursuing extra-marital relationships through MySpace, then this information could be used to impeach her credibility and rebut her sexual harassment claims. The emails could telling as to whether the plaintiff had actually suffered emotional distress as a result of the harassment, and might contain admissions relevant to the case.

The Court disagreed with the defendant and refused to order production of the emails. The defendant had nothing more than a suspicion and speculation that the plaintiff may have engaged in sexually related email communications on MySpace. There was an insufficient connection between the accounts and the workplace to make her private emails relevant. The Court noted:

Ordering plaintiff to execute the consent and authorization form for release of all of the private email on Plaintiff’s MySpace.com internet accounts would allow Defendants to cast too wide a net for any information that might be relevant and discoverable. It would, of course, permit Defendants to also obtain irrelevant information, including possibly sexually explicit or sexually promiscuous email communications between Plaintiff and third persons, which are not relevant, admissible or discoverable.

The Nevada District Court opined that, although it was theoretically possible that emails on the Myspace account might contain relevant information, the defendant should have limited the request to the production of relevant email communications. The determination of whether certain email communications were relevant could be properly ascertained through the discovery process.

No Canadian case to date has considered a request for the production of Myspace or Facebook emails. It seems likely that Courts will treat these emails differently than the other information on a social network profile; even a “private” Myspace profile is viewable by all a user’s “friends” whereas email is not; consequently, a Court may not be able to infer from the nature of the social network service either the intent to make public, or the likely existence of, relevant email communication. As a result, courts will likely hold that there is a greater expectation of privacy with respect to Myspace or Facebook email communications. It also remains to been seen whether evidence contained in a profile itself could give rise to a sufficiently reasonable inference that that email communications are relevant.  For example, if relevant postings on a Facebook wall made express reference to email communications, this might be sufficient to convince a Canadian court to order disclosure, notwithstanding the expectation of privacy surrounding such communications.

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A building materials company and its owner have appealed a $12.6 million verdict against them, alleging that a juror posted messages on Twitter.com during the trial that show he’s biased against them.

The motion seeking a new trial was filed Thursday on behalf of Russell Wright and his company, Stoam Holdings. It claims juror Johnathan Powell sent eight messages — or “tweets” — to the micro-blogging Web site via his cellular phone. According to the motion, one posting listed the company’s Web address and read in part: “oh and nobody buy Stoam. Its bad mojo and they’ll probably cease to Exist, now that their wallet is 12m lighter.” Another described what “Juror Jonathan” did today: “I just gave away TWELVE MILLION DOLLARS of somebody else’s money.” You can view Johnathan’s twiittering at this LINK.

In his motion, filed in Washington County Circuit Court in Fayetteville, lawyer Drew Ledbetter wrote that the messages show Powell “was predisposed toward giving a verdict that would impress his audience.” Powell, of Fayetteville, told The Associated Press on Friday that Wright and his lawyers are “just grasping at straws at this point.”

“I didn’t really do anything wrong, so it’s kind of crazy that they’re trying to use this to get the case thrown out,” Powell said. “I understand where they’re coming from, they lost over $12 million.”

The jury awarded the money Feb. 26 to Mark Deihl and William Nystrom, two northwest Arkansas men who invested in Wright’s company. The company sold a building material called Stoam that it claims combines the insulation qualities of foam with the strength of steel. Deihl’s attorney, Greg Brown, called the venture “nothing more than a Ponzi scheme.”

Brown said he doubts a new trial will be granted. He said Arkansas law requires defendants to prove that outside information entered the jury room and corrupted a verdict — not that information from the jury room made its way out.

Powell, a 29-year-old manager at a Wal-Mart photo lab, said he tried to talk to the judge Friday about what happened, but was turned away. He seemed a little shocked at what kind of power the 140-character messages on Twitter can carry. “I’m kind of surprised so many people have contacted me,” he said.

SOURCE: http://www.cellular-news.com/story/36506.php?source=rss

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