I opened the original article with a question: “Will social networks be the catalyst that leads to any game-changing judicial decisions or legislation?”¹ Certain technological shifts, I observed, had already led to changes in the law: The rise of online speech, and specifically online defamation, led to the passage of the Good Samaritan provision of the Communications Decency Act in 1996, which protects “interactive computer services” from being treated as the “publisher or speaker” of third-party speech.² The potential for massive copyright infringement led to the enactment of the Digital Millennium Copyright Act’s safe harbors in 1998, limiting the copyright exposure of certain classes of “service providers.”³ The Anticybersquatting Consumer Protection Act,⁴ which prohibits the bad faith registration of trademark-infringing domain names, was passed in 1999, and the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act,⁵ which imposes limitations and penalties on certain types of unsolicited e-mail, went into effect in 2003. The last 10 years have, in fact, seen a number of trends in and out of the courts tied specifically to the challenges posed by social networking. I address some—but by no means all—of them here.

Lesson No. 1: Why Can’t We Be Friends?

In recent years, several states have tackled the thorny issues of whether judges, lawyers, and jurors can be “friends” on social media, with varying conclusions. Back in 2009, the Florida Supreme Court’s Judicial Ethics Advisory Committee asked “[w]hether a judge may add lawyers who may appear before the judge as ‘friends’ on a social networking site, and permit such lawyers to add the judge as their ‘friend,’” and answered “No.”⁶ The committee explained that it would violate the ethical rule that “[a] judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge,” and believed that “listing lawyers who may appear before the judge as ‘friends’ on a judge’s social networking page reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.”⁷

That same year, by contrast, a New York Advisory Committee on Judicial Ethics opinion reached the opposite result:

The Committee cannot discern anything inherently inappropriate about a judge joining and making use of a social network. A judge generally may socialize in person with attorneys who appear in the judge’s court, subject to the Rules Governing Judicial Conduct. Moreover, the Committee has not opined that there is anything per se unethical about communicating using other forms of technology, such as a cell phone or an Internet web page. Thus, the question is not whether a judge can use a social network but, rather, how he/she does so.⁸

In expanding on this thought, the New York ethics committee recognized the same dangers as their Florida counterparts, but did not conclude that social media “friending” is an automatic problem, explaining that judges must “consider whether any such online connections, alone or in combination with other facts, rise to the level of a ‘close social relationship’ requiring disclosure and/or recusal,” and to be aware that a presence on a social network may lead to people asking the judge legal or case-related questions.⁹ “As is true in face-to-face meetings,” the opinion says, “a judge may not engage in these communications.”¹⁰

In 2013, the New York Advisory Committee on Judicial Ethics determined that a judge need not be disqualified just because he is “friends” on Facebook with the parents of children affected by a case before him.¹¹

Despite the Facebook nomenclature (i.e., the word “friend”) used to describe these undefined relationships, . . . the mere status of being a “Facebook friend,” without more, is an insufficient basis to require recusal. Nor does the Committee believe that a judge’s impartiality may reasonably be questioned or that there is an appearance of impropriety based solely on having previously “friended” certain individuals who are now involved in some manner in a pending action.¹²

In 2010, the Ohio disciplinary committee made clear that having a social network “friend” may not have the same implications as having an offline friend, writing: “A rose is a rose is a rose. A friend is a friend is a friend? Not necessarily. A social network ‘friend’ may or may not be a friend in the traditional sense of the word.”¹³ The Ohio committee continued: “Inevitably, a judge who uses a social network site will be asked to ‘friend’ other users, some of whom may be lawyers, some of whom may represent clients in the court on which the judge serves. Thus, judges seek guidance as to appropriate ethical boundaries, in particular as to being ‘friends’ with lawyers on a social networking site.”¹⁴ Ultimately, the opinion says, “To ensure compliance with all of these rules, a judge should be aware of the contents of his or her social networking page, be familiar with the social networking site policies and privacy controls, and be prudent in all interactions on a social networking site.”¹⁵

Oklahoma appears to follow the Florida approach, issuing a judicial ethics opinion in 2011 that cited the Florida opinion’s warning about the appearance of impropriety, adding:

We agreed and emphasize that whether such posting would mean that the party was actually in a special position is immaterial as it would or could convey that impression. We believe that the same rationale applies to social workers, law enforcement officers, or others who regularly appear in court in an adversarial role. In response to our specific question, we do not believe that this extends to court staff.¹⁶

More recently, North Carolina issued an interesting opinion that made some very fine distinctions, explaining that a “rule of reason” approach leads to the conclusions that: (1) a lawyer can accept a social network invitation from a judge; (2) a judge can accept an invitation from a lawyer; (3) a judge can accept a skills endorsement from a lawyer; but (4) a lawyer may not accept an endorsement from a judge, because “[d]isplaying an endorsement or recommendation from a judge on a lawyer’s profile page would create the appearance of judicial partiality and the lawyer must decline.”¹⁷

An analogous issue received a substantial amount of public attention in 2014, with the Federal Circuit’s reprimand of an attorney and the resignation of its chief judge, after the lawyer circulated an e-mail from the judge in which the judge praised the lawyer and encouraged him to share the e-mail. In the opinion addressing the lawyer’s actions, the court wrote:

It would blink reality not to view respondent’s action as suggesting his retention because his special relationship would help to secure a favorable outcome at the Federal Circuit. Under these circumstances, forwarding the email to clients and potential clients “impl[ies] an ability to influence improperly a government agency or official to achieve results by means that violate the Rules of Professional Conduct or other law.”¹⁸

Lesson No. 2: It’s OK to Look, Isn’t It?

There has been a similar wave of developments in the area of litigants’ and even jurors’ social media usage. While it is clear that lawyers may not actively interact with jurors, whether in person or online, the question of whether jurors’ information can be accessed by lawyers is far murkier, in part because the operation of various social media sites varies and changes over time.

In 2013 in New York, after a juror reported being “cyberstalked” by one of the attorneys, the judge questioned the attorney and gave special instructions to the jurors:

[T]hrough inadvertence, apparently, a young lawyer went and continued that search during Tuesday, and so some of you may receive information on Linked In or something that a lawyer has accessed your profile or something like that. It’s not because they’re about to offer you a job or anything like it, it’s just they were carrying out this checking and they just went beyond the time when it was permitted. And those mistakes happen, young lawyers make mistakes like that.¹⁹

In 2016, a court in New Jersey allowed an ethics case to move forward against an attorney who instructed a paralegal to submit a friend request to the opposing party, who had increased the privacy settings on his Facebook account.²⁰

Also in 2016, a Texas judge warned that “[a]ll attorneys, parties, and their respective employees and agents, including jury consultants, are prohibited from conducting or causing another to conduct any type of investigation by which a juror or potential juror may become aware that his or her ESM [electronic social media] is being reviewed or scanned.”²¹ The judge was referring to the fact that some social networks alert their users when people look at their profiles, and that such an alert could constitute improper contact. The judge further warned everyone that “[t]his of course requires that any individual using ESM to investigate jurors review the terms and conditions, including privacy features, which change frequently, as well as his or her own network settings before investigating jurors on such platforms.”²² A few years earlier, the New York City Bar Association reached a similar conclusion about the notification feature on LinkedIn.²³

The ABA, by contrast, appears to have come to the opposite conclusion, writing that the “passive” review of a juror’s Internet presence is allowed, even if the juror is notified: “The fact that a juror or a potential juror may become aware that a lawyer is reviewing his Internet presence when a network setting notifies the juror of such does not constitute a communication from the lawyer in violation of Rule 3.5(b).”²⁴

In the high-profile Oracle v. Google trial in 2016, the judge saw three main dangers in allowing lawyers to investigate jurors on the Internet: (1) jurors who learned that their profiles had been searched would not listen to judges telling them not to do their own research; (2) it would allow lawyers to tailor their arguments and make “improper personal appeals” to specific jurors; and (3) it would violate the jurors’ privacy.²⁵ Barring such research, however, would also not be proper, as “the lawyers would then be precluded from learning information readily available to the press and every member of the public in the gallery. That is, with an outright ban, everyone in the gallery could have more information about the venire persons and the empaneled jurors than the lawyers themselves.”²⁶ The judge concluded that the most the court could do would be to tell the jurors they were about to be investigated, and allow them time to adjust the privacy settings on their social media accounts. Ultimately, the parties agreed not to investigate the jurors on the Internet at all.

Lesson No. 3: Was It Something I Said?

Another area that is receiving increased attention is judges’ use of the Internet to express their views about legal issues. In 2015 in Texas, a judge was admonished for posting to Facebook about a case she was presiding over, even though she said she did so “to fulfill [her] campaign promise and [her] own goals of educating the public about our courts.”²⁷ In doing so, the opinion found, the judge “cast reasonable doubt upon her own impartiality and violated her own admonition to jurors by turning to social media to publicly discuss cases pending in her court, giving rise to a legitimate concern that she would not be fair or impartial.”²⁸ The judge was then ordered to undergo “four (4) hours of instruction with a mentor . . . in the area of the proper and ethical use of social media by judges.”²⁹

The ABA has issued guidance that judges who wish to post to the Internet must do so carefully, with an awareness that “comments posted to an ESM site will not remain within the circle of the judge’s connections. Comments, images, or profile information, some of which might prove embarrassing if publicly revealed, may be electronically transmitted without the judge’s knowledge or permission to persons unknown to the judge or to other unintended recipients.”³⁰ Thus, “[a] judge who has an ESM connection with a lawyer or party who has a pending or impending matter before the court must evaluate that ESM connection to determine whether the judge should disclose the relationship prior to, or at the initial appearance of the person before the court,” but “nothing requires a judge to search all of the judge’s ESM connections if a judge does not have specific knowledge of an ESM connection that rises to the level of an actual or perceived problematic relationship with any individual.”³¹

Lesson No. 4: Don’t Use “Password” as Your Password

An interesting trend that has swept most of the states in recent years is legislation prohibiting employers and/or educational institutions from requiring that employees (or prospective employees) or students disclose their social media credentials. Virginia’s law, for example, prohibits employers from requiring, requesting, or causing current or prospective employees to disclose their social media credentials, and prohibits employers from requiring employees to connect with particular people or change their privacy settings.³²

Maryland has similar legislation that bars schools from requiring, requesting, suggesting, or causing a student, an applicant, or a prospective student to give access or the ability to observe the individual’s personal electronic account. It further prohibits educational institutions from conditioning acceptance or participation in specified activities on allowing certain individuals to join their social networks.³³

Lesson No. 5: Boyfriends Often Become Ex-Boyfriends

Many states have also adopted so-called “revenge porn” legislation, specifically aimed at people who distribute sexual imagery of others without consent. This is seen as a unique problem of our age. First, there was the addition of photo and video capabilities on just about every phone. Then, there was the cultural “selfie” phenomenon, with additional technological innovations specifically designed for easier selfies (think about front-facing cameras and selfie-sticks). And finally, the social networks fed a culture of constant and widespread sharing. What resulted was a rise in people sharing intimate photos or videos with others whom they trusted, followed by abuse of that trust. The quintessential example is the spurned lover who distributes compromising photos of his or her former paramour. Like many such Internet-related trends, the idea of revenge porn did not begin now, but it became exceedingly easy to do, naturally giving rise to an increase in the activity. The revenge porn laws arise out of a recognition that preexisting intellectual property and defamation laws may not reach the distribution of photographs or videos where the person depicted consented (at the time) to the creation, and where the default law is that copyright in photographs resides in the photographer, rather than the subject of the photo.

The revenge porn laws vary across states (31 states had passed such laws by the end of 2016), but the general approach is to criminalize the distribution of sexual images of another, and in some cases to provide a private right of action as well. The Oklahoma law, for example, reads as follows:

A person commits nonconsensual dissemination of private sexual images when he or she:

1. Intentionally disseminates an image of another person: a. who is at least eighteen (18) years of age,

b. who is identifiable from the image itself or information displayed in connection with the image, and

c. who is engaged in a sexual act or whose intimate parts are exposed, in whole or in part;

2. Disseminates the image with the intent to harass, intimidate or coerce the person, or under circumstances in which a reasonable person would know or understand that dissemination of the image would harass, intimidate or coerce the person; 3. Obtains the image under circumstances in which a reasonable person would know or understand that the image was to remain private; and 4. Knows or a reasonable person should have known that the person in the image has not consented to the dissemination.³⁴

The Oklahoma law excludes, among other things, when “[t]he images involve voluntary exposure in public or commercial settings.”³⁵

Thus, we have seen the beginning of civil and criminal cases based on revenge porn. Interestingly, the laws have already been used beyond the traditional “ex-boyfriend” situation. In one such case, a woman is facing criminal prosecution for posting a photograph of an older woman showering in the gym on Snapchat, “shaming” the woman with a disparaging message about her physical condition.³⁶ In another, a woman was awarded $500,000 by a jury when her ex-boyfriend posted nude pictures of her to multiple Internet sites.³⁷

Conclusion (or To Be Continued)

The innovations of the Internet age continue to surprise and amaze, and continue to drive new legal situations that are either magnified or exaggerated versions of issues we have seen before, and occasionally entirely new challenges. Social networks have become a key component of the Internet experience, and are likely to still be here in some form 10 more years from now, and likely to still be shaping the continuing legal response to advancing technologies. As to what the technologies, laws, and legal decisions will look like, however, we will have to wait and see—stay tuned for part 3 of this series in 2027.

Endnotes

1. Hillel I. Parness, Toward “Social Networking Law”?, 1 Landslide, no. 4, Mar./Apr. 2009.

2. 47 U.S.C. § 230(c).

3. 17 U.S.C. § 512(a)–(d).

4. 15 U.S.C. § 1125(d).

5. Id. §§ 7701–7713.

6. Fla. Judicial Ethics Advisory Comm., Op. 2009-20 (Nov. 17, 2009).

7. Id.

8. N.Y. Advisory Comm. on Judicial Ethics, Op. 08-176 (Jan. 29. 2009) (citations omitted).

9. Id.

10. Id.

11. N.Y. Advisory Comm. on Judicial Ethics, Op. 13-39 (May 28, 2013).

12. Id. (citations omitted).

13. Ohio Bd. of Comm’rs on Grievances & Discipline, Op. 2010-7 (Dec. 3, 2010).

14. Id.

15. Id.

16. Okla. Judicial Ethics Advisory Panel, Op. 2011-3 (July 6, 2011).

17. N.C. State Bar Council, 2014 Formal Ethics Op. 8 (Jan. 23, 2015).

18. In re Reines, No. 14-MA004 (14-4) (Fed Cir. Nov. 5, 2014) (alteration in original).

19. United States v. Bank of Am. Corp., No. 1:12-cv-01422 (S.D.N.Y. Sept. 27, 2013).

20. Robertelli v. N.J. Office of Attorney Ethics, 134 A.3d 963 (N.J. 2016).

21. Barry v. Medtronic Inc., No. 1:14-cv-00104 (E.D. Tex. Oct. 27, 2016).

22. Id.

23. N.Y. City Bar Ass’n Comm. on Prof’l Ethics, Formal Op. 2012-2 (May 30, 2012).

24. ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 466 (Apr. 24, 2014).

25. Oracle Am., Inc. v. Google Inc., No. 3:10-cv-03561 (N.D. Cal. Mar. 25, 2016).

26. Id.

27. Public Admonition & Order of Additional Educ., Nos. 14-0820-DI & 14-0838-DI (Tex. Comm’n on Judicial Conduct Apr. 20, 2015) (alterations in original).

28. Id.

29. Id.

30. ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 462 (Feb. 21, 2013).

31. Id.

32. Va. Code Ann. § 40.1-28.7:5.

33. Md. Code Ann., Educ. § 26-401.

34. Okla. Stat. tit. 21, § 1040.13b(B).

35. Id. § 1040.13b(C)(3).

36. Richard Winton & Veronica Rocha, Prosecutors Charge Former Playboy Playmate Dani Mathers in Gym “Body-Shaming” Photo Case, L.A. Times, Nov. 4, 2016, http://www.latimes.com/local/lanow/la-me-body-shaming-20161104-story.html.

37. Houston Woman Wins $500,000 in “Revenge Porn” Lawsuit, ABC 7 News (Feb. 27, 2014), http://abc7news.com/archive/9447698/.