Uncle Ben warned Spider-Man, “With great power comes great responsibility.” Our social network activity similarly generates limitless potential and mammoth responsibilities. Besides bridging the gap between cultures, social media offers both unexplored terrain and worrisome perils from a legal persepctive.

Facebook provides a “check in” option, which discloses not only your location but also how far away you are and where you’ve been lately. Snapchat allows a user to share a photo with another user and then have that photo disintegrate into cyberspace. These alternate realms of reality allow people to show who they think they are and who they want you to think they are. The metes and bounds descriptions of our cyber property interests are blurred. But to what extent? Until now, the judiciary seemed ill-equipped to deal with issues presented when someone was charged and later convicted based on information — photos, comments, public statements — shared virtually. Should a defendant’s social media presence be admitted into evidence? Read on and find out.

Social Media in the Courtroom

Inquiring into evidentiary issues requires a snapshot of criminal procedure jurisprudence. There are certain advantages and good policy reasons for accessing social media evidence used in criminal proceedings. Photos, for example, can be uploaded quickly and shared within seconds. They can alert authorities to crimes in progress, those about to be committed, or those already commissioned. Moreover, Police Departments now manage Twitter accounts, which highlight their day-to-day victories, reminding citizens to trust that they are on patrol. But when did these technologies become social norms? We all want to be protected, but at what cost?

When did technology become an issue in criminal proceedings?

Until recently, the government consistently retrieved any information from third parties without a neutral and detached magistrate issuing a warrant. The groundbreaking decree came in 1971 when the Supreme Court decided that recording conversations between an individual and agents, via a radio transmitter and without a warrant, did not violate the 4th Amendment of the United States Constitution. However, this was decided in a time when social media didn’t exist, or at least where speaking face to face was not uncommon:

Social media use in the United States alone has increased by 356 percent since 2006. Currently, 52 percent of Americans have at least one social media profile more than one billion people use Facebook actively each month, and Twitter has over 140 million active users posting 340 million Tweets a day.

Every minute, social media users create massive amounts of data: Facebook users share 684,478 pieces of content; Tumblr blog owners publish 27,778 new posts; YouTube users upload 48 hours of new video; Foursquare users perform 2,083 check-ins; Flickr users add 3,125 new photos, and Instagram users share 3,600 new photos. In addition, there are hundreds of other social networking websites, each catering to a different demographic.

Recent Changes

With new ideologies come new rules to constrain them. The Supreme Court tackled the technology and privacy issues head on after wrestling with Riley v. California, after a defendant’s phone was searched without a warrant. In Riley, the Defendant was stopped for a traffic violation, which resulted in his arrest. Upon searching the defendant pursuant to the incident to arrest exception for searches, the police officers removed his phone from his pants pocket. Based on photos and videos found within the phone, the state sought an enhanced sentence for gang association. The Supreme Court Majority had this to say:

The Court did not uphold the warrantless search of Riley’s cell phone; however, the Court was reluctant in transcribing a per se rule, and instead recognized circumstances in which data retrieved from a cell phone would be necessary to combat an unforeseen exigency. Thus, although the incident to an arrest exception would not suffice for searches of a defendant’s cell phone, the Court reserved its discretion as judicial intermediary.

I imagine lawyers will soon use the rules to their advantage and argue that individuals “checking in” to locations on sites such as Foursquare are not hearsay but “present sense impressions,” and that tweets are admissible under the “state of mind” exception.

Not all Courts treat this type of evidence the same way, however. In Miles v. Raycom Media, the Court found that a Facebook page containing unsworn statements from third parties that were offered to prove the truth of the matter asserted constituted inadmissible hearsay under Federal Rule of Evidence 801. Thus, the court restricted the scope of Facebook profile admissibility.

On the one hand, we are presented with judges who may not understand the significance of our social network privacies and the public diaries we divulge. On the other we have judges willing to apply (make) exceptions to what we post, which they use to incriminate us later. I say “us” because it is our online activities and trends that shape these realities.

Social Policies

As we can see, courts are conflicted as to whether admitting this evidence upholds our notions of truth, justice, and fairness. It’s a cycle. First, our social network activity creates criminal proceedings because defendants also use social networks. These proceedings then generate different approaches in judges handling evidence issues. Finally, these issues lead back to defendants, which prompts changes to our social networking habits after we notice our information is no longer private. Meanwhile, the people play pawns: citizens lose privacy and people get arrested. Nevertheless, Snapchat offers grounds for alarming disagreement, debate, and policy.

Snapchat lets people share secret photos with one another, which disappear upon the recipient’s retrieval. It makes sense that a defendant may want to broadcast his new kill or fashion his new stolen watch. Using Snapchat, he can send a picture to his gang or girlfriend, showcasing that he pulled it off.

Show-offs never get away with it. In fact, when you join Snapchat, you authorize it to “process and store” the nature of your contents. So while you think the picture of that hot new bathing suit you stole and sent your boyfriend won’t be found, it’s actually being saved. Moreover, Snapchat’s policy provides that:

We may share information about you as follows or as otherwise described in this Privacy Policy:

• In response to legal process or a request for information if we believe disclosure is in accordance with any applicable law, rule, or regulation, or as otherwise required by any applicable law, rule or regulation;
• In order to investigate or remedy potential violations of our user agreements or policies, or to protect the rights, property and safety of Snapchat, our users or others;
• In connection with, or during negotiations of, any merger, sale of company assets, financing or acquisition of all or a portion of our business to another company; and
• With your consent or at your direction.

Conclusion

Many people join Snapchat because they can send and receive photos and videos that they don’t want others to see. Although we already submit some of our privacy to online networks when we subscribe, if Congress statutorily enacts that any posts on social media can be used as evidence, then people would be deterred from joining the sites in the first place. This could limit the amount of people sharing dumb photos or implicating themselves. Juxtaposed, a statute like this could offer broader criminal tactics, or it could prevent defendants from implicating themselves. A lot of Snapchat and social media in general is based on our heightened expectations that what we do, send, or comment on, won’t be available for use against us. Alternatively, what we do, send, or comment on, is nevertheless saved in case something happens. Is that fair? Perhaps social media giants operating under the false pretenses of security should be exposed once and for all.

Resources

Primary

Snapchat: Privacy Policy

EFF: The Stored Communications Act

Additional

Bloomberg BNA: Social Media Evidence in Criminal Proceedings

American Bar Association: Admissibility of Social Media Evidence

Evangelos Siozios

Evangelos Siozios is a student at New York Law School focusing on family law and real estate transactions. He is a 2012 Baruch Honors College Graduate whose interests include writing, exercising, and solving TV mysteries. Contact Evangelos at staff@LawStreetMedia.com.

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As a young woman, I have been inundated with advice on how to dress myself appropriately for a professional situation for years now. My first introduction to professional dress was in high school when I did Model UN. We competed at tournaments around the East Coast a few times a year, and every time we were told to wear “Western Business Attire.” For boys, that was easy. They had to wear khakis or suit pants with a button down and tie, with maybe a sports jacket. But for us girls, it was different. The guidelines were clear, but finding clothes that were appropriate and still cute were difficult. We occasionally got in trouble for wearing skirts that were too tight or short, but we still talked about other girls’ inappropriate club-like dresses with a certain sense of satisfaction.

In college, it got even worse. I compete in intercollegiate mock trial, where formality is even more intense. Girls wear suits in grey, black, or navy; collared shirts; conservative heels; and pantyhose. I make younger members of my team show me their outfits before we compete. I do this because I have received comments about my appearance before — my skirts are too short, or my sleeves are too long, or I chose the wrong color blouse.

And as it turns out, the pressure doesn’t change when you make it into the legal profession, because we hear things about women needing to dress more appropriately for court all the damn time.

A few weeks ago, Loyola Law School sent out a memo about female students dressing appropriately at their jobs or internships. The school’s externship director wrote, “I really don’t need to mention that cleavage and stiletto heels are not appropriate office wear (outside of ridiculous lawyer TV shows), do I? Yet I’m getting complaints from supervisors.” Last fall, law firm Clifford Chance sent out a lovely memo detailing how exactly women should dress — and act, and speak, and breathe, but that’s besides the point. (If you missed it, by the way, definitely read Hannah Winsten’s takedown on that memo.) Some of the tips were real winners: “Understated jewelry, nothing jingly or clanky.” “Don’t dress like a mortician: if wearing a black suit, wear something bright.” “If wearing a scarf, make sure it stays tied.”

These are by no means isolated incidents. In fact they’re more common than you probably think. And they’ve once again started a debate about what female lawyers should be wearing, who is allowed to comment on their dress, and why we care. So as someone who someday hopes to be a female lawyer, here are three things I think we all need to keep in mind.

3. ‘Lady in the streets, freak in the sheets,’ anyone? 

This entire thing reminds me of that saying, because that’s what women are taught. Women are expected to dress conservatively in the courtroom, but still retain femininity. They’re expected to be professional in the work place, but not dress too masculine — after all pantsuits have only become acceptable for women in the last couple decades. Think about how women and men dress up throughout their young lives in Western culture. Little boys wear little suits to say, a cousin’s wedding. Girls wear puffy, pink frocks. Young men wear nice suits or tuxes to prom. Girls wear ball gowns. Men wear tuxes to their wedding. Women wear gigantic white dresses.

For every single part of our lives, we’re taught that different things are acceptable, while men wear essentially variations on the exact same outfit. And that’s because women are taught that their roles are different at each of those events. At prom, be a princess. At your wedding, be a pure virgin. In court, be strong and masculine.

2. Pop culture and societal pressure.

Think about youngish female lawyers on TV and in movies. They’re all gorgeous. We have Reese Witherspoon’s immortalized portrayal of Elle Woods in Legally Blonde. Casey Novak, played by Diane Neal on Law & Order: SVU. Calista Flockhart’s Ally McBeal.

The only way female lawyers are ever portrayed otherwise is the sort of elder stateswoman type, but still incredibly attractive. Think Diane Lockhart in The Good Wife, for example.

Now, it is pretty fair to say that everyone on TV and in Hollywood is attractive. But the men on legal shows usually wear pretty basic suits. The women wear incredibly expensive and well tailored outfits, all beautifully put together. This just continues to propagate the issue of balance. Most women don’t look like the fictional lawyers we see on TV, and that’s completely okay. But that fine line between feminine and too sexy, or between professional and stuffy is not helped by the images of female lawyers in the media.

1. Apparently men can’t control themselves. 

Now, women should dress appropriately in the courtroom. There are  no ifs, ands, or buts about it. It takes some effort, but it’s not that hard. I absolutely judge grown women who cannot dress themselves appropriately. When you walk into a courtroom, you need to impress the judge, and you need to impress the jury. But judges are mostly men — women usually make up roughly 1/3 of the bench. But one of the big issues, as XoJane points out, is that women’s clothing in the courtroom is not standardized the way men’s suits are. Every judge has a preference: “Some never want to see pants, for example, while others abhor specific hemlines or colors.”

And some of these male judges say BS, like District Judge Richard Kopf. He recently published a blog post in which he described how he leers at one of the attractive young women around the courthouse, and suggested, “You can’t win. Men are both pigs and prudes. Get over it.”

I can win. I can look professional, despite all the ridiculous double standards that abound in women’s clothing choices. But that doesn’t mean that I have to get over the fact that I’m held to those double standards. Why do I have to accept that a male judge is either going to mock me for being too frumpy, or eye me for being too sexy? And, most importantly, why in this day and age do we focus more on how smart, capable women dress than what they say?

So new rule, everyone. Let’s all dress appropriately…and all treat each other like respectable human beings. Deal?

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Anneliese Mahoney (@AMahoney8672) is Lead Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

Featured image courtesy of [Martijn Schornagel via Flickr]

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

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