Criminal

evidence from internet/social media in criminal cases

And it’s that second one that is interesting. So remember my Facebook example earlier, I don’t know on Facebook, I don’t own their servers, and it’s not my account. So I’m not supposed to be looking at its content. However if you are the friend of the person who is posting that I’m interested in, the plaintiff. You are authorized to receive it, because it was intended to you. As and intended recipient you are further authorized to share it with others. And that’s what surprises people, is I think there is some assumption in their head that when I post it to my wall my friends will see it that surely they will not share it with anyone else.

Or they will tell everyone particularly if they don’t like you so just know that if this is an out if you get accused of a violation of the SCA because you happened to be in a possession of electronic communication that no one thought you were supposed to have, as long as you received it from someone who was intended to have it, they were actually the user of the service and they intended to have the communication they are actually authorized to share it with you.

There are some case along these line there is new union president that gets herself fired after two other coworkers rat her out for something she said on Twitter. She sues under the SCA, turns out she loses because they were allowed to see it, there are other this is just the law, there are other—there are other portions of the same law that have been analyzed to be kind of technical and saying if the person never actually used the service they are not a user. If they give you their credentials for example but they never logged in that can be a problem so it really does need to be them that does it as o pposed to giving you the credentials.

There is also a very disturbing from my point of view the case called the Pretelo 2008 New Jersey. This gets into the consent element that of “I have to consent to you seeing it and I have consent to you access to communication”. In that case hostess allows her boss to access a website where people been posting things to get them fired. She was never threatened with anything. However she later testified that she felt like if she didn’t hand over her credentials that she might have gotten in trouble on the job. That was enough to create a fact issue under whether she was under dressed when she handed over the credentials. Jury found, she was under dressed and popped the company, now keeping in mind all that happened here is “hey boss you want to look at this thing that they put on the internet here my credential”. Company does it, the company fires, company gets sued you know I did feel like that kind of had to tell you that and if didn’t I get in trouble just because you are asking me about hat.

That was enough to make the company liable so dressed under the SCA is something to be vary off. In other words you’re getting stuff from someone who isn’t you like it’s going to someone else and they are handing it you and needs to be really clear okay with giving it to you. You’re not pressuring them to give it to, not threating them anyway, you’re not applying strong arm tactics.
Finally I’m going to jump over the constitution, this is mostly for public anyway and I’m going to move pass public policy which is long hand short way of saying you can’t hack people’s email to read their communications with their attorneys which shouldn’t be surprising except that we have done it, I have not done it.

Formal discovery, these are the things that I want you to be aware of,

Francisco Hernandez

Author Francisco Hernandez

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