Chicago IP Attorney & Lawyer : R. David Donoghue : Chicago IP Litigation Blog

I have written about the legal issues surrounding social networking sites (click here and here to read those posts).  I even did an ALI-ABA teleseminar with Eric Goldman yesterday discussing, among other things, how the Communications Decency Act protects social networking sites against suit based on third party content published on the sites.  But Julie Kay's National Law Journal article yesterday -- click here to read it -- provided a new angle on the power of social networking sites in the courtroom. 

It is no surprise that lawyers, either alone or assisted by jury consultants, research juror backgrounds, and use their research during voir dire and to inform their trial presentations, in particular opening and closing arguments.  Of course, internet research has been a cornerstone of those efforts for years.  But social networking sites have vastly increased the amount of information available about the average person.  Instead of learning someone's Turkey Trot 5k time and one or two newspaper quotes, you now may be able to see their entire resume on LinkedIn, read about major life events on FaceBook, or even read their personal, daily thoughts on a blog.  Kay reports that the information is a valuable fact checking tool, acting as a backstop to information provided in a jury questionnaire.

Additionally, blogs can tell you a lot about a juror, that the juror might not be inclined to disclose in open court or on a questionnaire. To illustrate this point, Kay quotes Anne Reed of Reinhart Boerner Van Deuren -- who writes Deliberations, one of my favorite legal blogs. Reed tells the story of "Erin" a relatively prominent Florida blogger who blogged that she was a juror several days after posting that: "I totally understand how innocent people that go to prison turn into hardened criminals . . . ." Reed explains that the lawyers might not have struck Erin for her blogging, but that it was critical information to have in the decisionmaking process:

"You'd hate to leave Erin on your jury without having seen her writing," said Reed. "A juror's blog tells you things about the jurors that she probably won't tell you herself."

Kay also quotes Holland & Knight litigator Dan Small who raises an important and often overlooked note of caution. Small is concerned that invading jurors' privacy via internet research could make jurors very uncomfortable and is a substantial invasion for people performing their civic duty:

"You are taking people who are doing their civic duty and didn't sign up to have their whole life probed," Small said. "It scares people. They wonder: 'Are they going to hack into our e-mails next?' The Internet in so many areas creates an extraordinary conflict between the desire for information and the desire for privacy."

Of course, there is a real question as to whether anything posted on the internet, without password protection or some other privacy protections, can be considered private in anyway. But there is little doubt that knowing their backgrounds were researched and their FaceBook pages were read could make jurors uncomfortable and learning that their backgrounds have been probed could turn jurors against the lawyers or their clients. So, at a minimum, the information needs to be used carefully and discreetly.

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 In the June 2008 issue of the National Law Journal (out today), Tresa Baldas reported on the increasing number of law suits involving allegedly fake MySpace or Facebook pages -- click here (subscription required) for the story.  Among other cases, Baldas discusses the town of Cicero's efforts to identify the creators of two MySpace pages containing false and allegedly defamatory statements about Cicero Town President Larry Dominick and claiming to be authored by him, which I posted about last week.

As I said in my post last week, the increasing number of disputes regarding false social networking pages raises questions about the problems with the anonymity of the internet that are equally interesting and difficult. And while your first reaction may be that courts should not be asked to resolve these disputes, the courts may be a necessary part of the process, as I discussed in the National Law Journal article:

Free speech issues aside, fake online profiles have pushed the age-old problem of schoolyard rumors into the courtroom, said Dave Donoghue, an attorney with DLA Piper who specializes in intellectual property litigation.

"The internet gives [a rumor] an air of credibility that it used to not have," Donoghue said. "It forces the schoolyard into the courtroom. And how the courts deal with youthful mistakes and transgressions is a very difficult issue."

Another difficult legal issue arising from fake postings, he said, is privacy rights. Specifically, when should Web sites turn over information about who is creating questionable profiles?

"They owe their users whatever protections they promised them, and so it's important that the court system be used in those cases," Donoghue said, adding that Web sites can't and shouldn't turn over personal information based upon a private request.

Donoghue warned that those requests could be falsely created, "just like you can't always trust that the creator of the page is who they claim to be."

Baldas discusses many of the most prominent social networking identity theft cases and does a good job of crystallizing the issues.  But one other case with particular international impact is that of Bilawal Bhutto Zardari.  As explained in the New York Times' Lede Blog (click here for the post), Bhutto Zardari took over as chief of the Pakistan Peoples Party after his mother, Benazir Bhutto, was killed late last year.  Because Bhutto Zardari was "relatively unknown" many reporters turned to Facebook.  While some found his profile, created using his first name spelled backwards for privacy reasons, many found and reported statements from one of two other false pages claiming to be Bhutto Zardari's.  The creator of one of the pages even anonymously posted about his fake Bhutto Zardari  page on an internet bulletin board.  Of course, the false pages were eventually taken down, but some copies of the newspapers and magazines that ran the false quotes and information still exist.

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"There's an element of this we just have to live with," said Dave Donoghue, an attorney with DLA Piper who specializes in intellectual property litigation. "It's impossible to have large-scale social networking sites, which people clearly want, without having some risk of this."

Greater policing of social networking sites would be impractical, Donoghue said, comparing it to air travel.

"To make air travel 100 percent safe, the background checks and checks of personal possessions of each individual getting on an airplane would be so cumbersome, time consuming and expensive, it would make air travel impractical," he said. "There has to be a balance."

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