Category Archives: Social Media

Sex Offenders & Cyberspace

Image result for Sex Offenders & Social Media

In Packingham v. North Carolina, the United State Supreme Court outlawed a North Carolina statute that makes it a felony for a registered sex offender to access a commercial social networking web site. The statute restricts lawful speech in violation of the First Amendment.

BACKGROUND FACTS

In 2008, North Carolina enacted a statute making it a felony for a registered sex offender to gain access to a number of websites, including commonplace social media websites like Facebook and Twitter. North Carolina has prosecuted over 1,000 people for violating this law.

The Defendant was charged after posting a statement on his personal Facebook profile about a positive experience in traffic court. The trial court denied petitioner’s motion to dismiss the charges on the ground that the law violated the First Amendment. He was convicted and given a suspended prison sentence. On appeal, the State Court of Appeals struck down the statute on First Amendment grounds, however, the North Carolina Supreme Court ended up reversing the decision.

The United States Supreme Court granted review on the issue is whether the Carolina Statute was permissible under the First Amendment’s Free Speech Clause, applicable to the States under the Due Process Clause of the Fourteenth Amendment.

COURT’S ANALYSIS & CONCLUSION

The U.S. Supreme Court held that the statute impermissibly restricts lawful speech in violation of the First Amendment.

First, the Court reasoned that the First Amendment allows all persons have access to places where they can speak, listen, reflect, speak and listen once more. Today, one of the most important places to exchange views is cyberspace, particularly social media, which offers “relatively unlimited, low-cost capacity for communication of all kinds to users engaged in a wide variety of protected First Amendment activity on any number of diverse topics. Reno v. American Civil Liberties Union, 521 U. S. 844, 870. The Court stated that the Internet’s forces and directions are so new, so protean, and so far reaching that courts must be conscious that what they say today may be obsolete tomorrow. Indeed, the Court expressly proceeded very carefully in its analysis:

“Here, in one of the first cases the Court has taken to address the relationship between the First Amendment and the modern Internet, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.”

That said, the Court bluntly reasoned that the statute is not narrowly tailored to serve a significant governmental interest.  Like other inventions heralded as advances in human progress, the Internet and social media will be exploited by the criminal mind. It is also clear that sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people, and that a legislature may pass valid laws to protect children and other sexual assault victims.

“Two assumptions are made in resolving this case,” said the Court. First, the law applies to commonplace social networking sites like Facebook, LinkedIn, and Twitter. Second, the First Amendment permits a State to enact specific, narrowly-tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor.

However, the Court reasoned that even with these assumptions, the North Carolina statute enacts unprecedented prohibitions in the scope of First Amendment speech it burdens:

“Social media allows users to gain access to information and communicate with one another on any subject that might come to mind. With one broad stroke, North Carolina bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.”

The Court said that even convicted criminals might receive legitimate benefits from the social media for access to the world of ideas, particularly if they seek to reform and to pursue lawful and rewarding lives.

Consequently, the Court reasoned that North Carolina failed to prove that its sweeping law was necessary or legitimate to serve its purpose of keeping convicted sex offenders away from vulnerable victims. “No case or holding of this Court has approved of a statute as broad in its reach.” With that, the U.S. Supreme Court reversed and remanded Mr. Packingham’s criminal conviction.

My opinion? Excellent decision. Granted, nobody wants anyone using the internet for predatory purposes. Nevertheless, its simply unconstitutional to totally prohibit people – even convicted sex offenders – from using the internet and social media. There’s plenty of spyware, child molestation sting operations and government internet monitoring happening on the internet to reduce the risk of predatory behavior. There’s no need for the Government to make statutes which violate Constitutional rights.

Good decision.

Backpage.com Evidence Admitted at Trial as “Business Record.”

Image result for backpage escorts

In State v. Butler, the WA Court of Appeals decided a trial court rightfully admitted business records connecting showing the defendant used Backpage.com to facilitate the commercial sexual abuse of a minor because the State’s failure to provide the written notice of the evidence did not prejudice the defendant, who was given the business records months before trial.

BACKGROUND FACTS

N.C. was 14 years old when she first met 22-year-old defendant Ivory Butler. One day, N.C. skipped school and spent the day with Butler. N.C.’s mother found out she had skipped school and punished her. N.C. ran away from home, and Butler picked her up. He took her to a motel room and arranged for her to meet men at the motel for sex. She gave the money she received to Butler. N.C. continued selling sexual services and giving the money to Butler.

Detective Raymond Unsworth found Internet ads on Backpage.com for female escort services with Butler’s phone number listed as the contact number. The ads included photographs of the body, but not the face, of a young woman. The ads alluded to sexual services that would be provided, with the prices that would be charged.

An undercover detective responded to the Backpage ads by contacting Butler’s phone number. The detective, posing as a customer, arranged to obtain sexual services for $300 from a woman in room 201 of the New Horizon Motel. Police found N.C. in that room, together with a disposable cellphone under the mattress, condoms in a Crown Royal bag, and a knife in the bedside table drawer.

In Butler’s phone, the contact name assigned to the disposable phone found in the motel room was “Money Baby Money Baby.” Text messages between Butler’s phone and the disposable phone found in the motel room included details about providing sexual services for money. The messages also included instructions from Butler to N.C. to discard the phone in the toilet if the police came. Butler was arrested and charged under RCW 9.68A.101 with promoting commercial sexual abuse of a minor.

The Trial Exhibits

At trial, the State sought to admit three exhibits. Exhibits #3 and #4 relate to Backpage ads for escort services. Exhibit #5 was the certification from the Backpage records custodian. Detective Unsworth testified that he found the ads on Backpage’s public website. Each ad included photographs of a young woman, information about the sexual services that could be provided, the price, and Butler’s telephone number as the contact.

Exhibits #3 and #4 compiled the ads that were online, more photographs that Detective Unsworth had not seen online, the date each ad was posted, and the poster’s fictitious name, mailing address, and e-mail address. Backpage provided the certification from its records custodian in response to a search warrant for business records.

The State provided these exhibits to Butler months before trial as part of discovery. The trial court admitted the exhibits over Butler’s objection.

The jury found Butler guilty as charged. On Appeal, Butler argues the Exhibits #3, #4 and #5 were wrongfully admitted.

COURT’S ANALYSIS AND DECISION

Butler argues Exhibits #3, #4 and #5 were inadmissible because the State did not give proper notice under RCW 10.96.030(3). This statute contains an exception to the general rule requiring witness testimony to admit business records. To ensure the opposing party has a fair opportunity to challenge the business records and certification, the statute provides in part:

“A party intending to offer a record into evidence under this section must provide written notice of that intention to all adverse parties, and must make the record and affidavit, declaration, or certification available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.”

The court reasoned that approaching these issues is similar to approaching the child hearsay rule: basically, cases addressing the child hearsay statute have upheld the admission of statements without prior notice “so long as the adverse party had or was offered an opportunity to prepare to challenge the statements.”

Here, Butler argued the State was required to provide a separate written notice to inform him that it intended to rely on RCW 10.96.030 for admission of the business records. But months before trial, the State provided the certification of the Backpage records custodian, together with the Backpage business records. Mid-trial, the State also offered to produce the custodian for live testimony and a defense interview. This allowed Butler ample opportunity to prepare to challenge the records. With that, the Court denied Butler’s arguments:

“Consistent with the cases addressing the child hearsay statute, we conclude the lack of written notice required by RCW 10.96.030 did not cause any prejudice to Butler. He had ample opportunity to prepare to challenge the business records when the State provided all of the proposed business records and the certification from the records custodian months prior to trial.”

Moreover, the Court reasoned that the State offered to call the records custodian as a witness and to allow Butler to interview the custodian. However, Butler declined to request a continuance to interview the witness.

Finally, the Court of appeals rejected arguments that the Backpage ads bolstered N.C.’s testimony tying Butler to the Backpage evidence. The Court reasoned that even without the admission of the Backpage ads, overwhelming evidence links Butler to his exploitation of N.C.:

“The physical evidence, text messages, jail phone calls, testimony from N.C., and successful undercover sting operation provide overwhelming evidence that Butler promoted the prostitution of N.C.”

Consequently, the Court concluded that the lack of written notice required by RCW 10.96.030 did not cause prejudice to Butler. Overwhelming evidence supported Butler’s guilt.

Mugshot Shaming & Facebook

A news article from CBS 6 News reports that the Chesterfield County Sheriff’s Office in Virginia has decided to post weekly mugshots of people arrested on DUI charges on their Facebook page. Every Thursday they put the mugshots together into a video that gets thousands of views.

The sheriff told CBS 6 that while deputies aren’t making the arrests, they’re hoping the videos will make a difference.

“It’s a community issue,” he said, and pointed out that DUI infractions are on the rise.

Over the past seven days, 22 people in Chesterfield were charged with DUI.

“So we wanted to do our part, in conjuction with the police department, who do a good job making the arrests, and seeing if we couldn’t help deter somebody from getting in that car when they’ve had too much to drink,” said Sheriff Karl Leonard.

Additionally, the Chesterfield Sheriff’s Office wants to remind viewers that everyone you see here is innocent until proven guilty in court.

My opinion? Often, clients facing criminal charges ask me whether they can sue the Bellingham Herald – or anyone else, for that matter – on claims of slander and/or libel for posting their arrest on the Herald’s weekly jail reports.

Unfortunately, the typical answer is “No.” Under the common law, proving slander and libel require a finding that the information distributed to the public is untrue. Here, the fact that someone was arrested is, in fact, true. Therefore, that information can be reported. Additionally, news media outlets reporting this information provide the caveat to viewers that arrested individuals are innocent until proven guilty in court. Chesterfield County Sheriff’s Office has done this as well.

Still, social media is used by everyone. Who among us wants their arrest information posted on Facebook? The information is a scarlet letter. It’s embarrassing. Worst-case scenario,  people may lose employment opportunities and come under scrutiny from their peers, family and friends from the posting of this highly personal information on Facebook.

On a positive note, posting people’s mugshots on Facebook could reveal whether police are racially profiling DUI defendants. Watch the video. Notice how 99.9% of Chesterfield County’s DUI offenders are Hispanic or African American? This, in a county where census data information reveals that 70% of Chesterfield County’s population is 70% Caucasian?

Interesting. Stay tuned . . .

State v. Kohonen: No Proof of Cyberstalking

In State v. Kohonen, Division I of the WA Court of Appeals decided the State failed to prove that a defendant’s tweets constituted “true threats” sufficient to support a conviction for Cyberstalking.

When the defendant J.K. was in eighth grade, a classmate, S.G., informed a teacher that another student was behaving oddly. As a result, the other student and J.K. were both suspended from school. J.K. and S.G. had no other interaction until the incident at the center of this case.

Two years later, when J.K. and S.G. were sophomores in high school, they shared a first period class. One morning, J.K. saw S.G. in class and was reminded of the incident two years before. She quickly posted two short messages, known as tweets, via the web site Twitter. The first read, “Tbh (to be honest), I still want to punch you in the throat even tho it was 2 years ago.” The second read, “#[S.G.]mustdie.”

Eventually, J.K. was taken from class to the school administration office, where she was confronted her with the tweets. J.K. immediately admitted that she had written and posted the tweets but stated that she had not intended for her actions to harm S.G. Later, J.K. also explained that she posted tweets frequently. She used Twitter as a “virtual diary,” posting her thoughts, reactions, feelings, and more. She testified that she sent the messages quickly and without thinking, as a fleeting expression of her agitation at the memory from middle school. Although she was aware that the posts were public, and that she had approximately 100 people who followed her, she testified that she did not consider the potential impact her tweets might have on S.G.

J.K. was charged with one count of Cyberstalking. After trial, the juvenile commissioner adjudicated J.K. guilty as charged, finding that J.K. had acted with the intent to embarrass, harass, and torment S.G. and that she was not credible on the question of whether she had considered the effect the tweets could have before posting them. The court also concluded that the tweets constituted a true threat. J.K. was sentenced to six months of probation and 30 hours of community service. The superior court denied J.K.’s motion to revise. Division I accepted her appeal.

The Court of Appeals held there was insufficient evidence that the tweets in question constituted “true threats,” as required by the federal and state constitutions.

The Court reasoned that due process clauses of the United States Constitution and WA Constitution require that the government prove every element of a crime beyond a reasonable doubt. The critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be to determine whether the evidence could reasonably support a finding of guilt beyond a reasonable doubt.  The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

The Court further reasoned that in order to convict J.K. of Cyberstalking, the State was required to prove each of the following elements beyond a reasonable doubt: (1) that J.K. made an electronic communication to another person, (2) that, at the time J.K. made the electronic communication, she specifically intended to harass, intimidate, torment, or embarrass another person, and (3) that J.K. threatened to inflict injury on the person to whom the electronic communication was made.

Under the circumstances, the Tweets were not true threats:

“J.K.’s tweets bear the signs of—admittedly mean-spirited—hyperbolic expressions of frustration, and that is precisely how they were received. A reasonable person in J.K.’s position would not have anticipated a different reception. Therefore, insufficient evidence was presented that the tweets constituted true threats.”

On that, the Court of Appeals reversed the conviction and dismissed the case.

Good decision.

In re Detention of H.N.: Screenshots of Text Messages Are Admissible Evidence

 

In In re Detention of H.N., Division I of the WA Court of Appeals decided that E-mailed screenshots of text messages that a medical expert used as part of her testimony were properly admitted as substantive evidence at trial.

H.N. is a college student who was less than 21 years of age at the time of the events leading to this case. She worked at part time jobs, and she had two roommates who worked with her at one of her jobs. After midnight on a night in May 2014, H.N.’s two roommates returned home to discover her unconscious on the floor and lying in a pool of her own vomit. Nearby there was an empty bottle of wine, an empty bottle of Nyquil, and a partially empty bottle of vodka. H.N. briefly awoke but then passed out again. One roommate called 911, and medics responded to the scene.

Afterward, H.N. was involuntarily detained for mental health treatment.

Thereafter, the State petitioned for up to 14 days of additional inpatient treatment, pursuant to the involuntary treatment act, RCW 71.05. For those who don’t know, detainees like H.N. may petition their local superior courts to be released from detention and observation. However, courts won’t release detainees if the detainee is likely to gravely injure themselves or someone else upon release.

On May 7, 2014, the court conducted a hearing on H.N.’s petition for release. At the hearing, the State presented the testimony of a psychologist who evaluated H.N. at the hospital. The psychologist testified as an expert. Part of her testimony was based on what purported to be e-mailed screenshots of text messages between H.N. and her boyfriend, “A.” These messages were exchanged on the night her roommates found her unconscious on the floor, lying in a pool of her vomit. The psychologist read several of these text messages into the record. Over H.N.’s objection on the basis of lack of foundation, the court admitted this evidence.

For those who don’t know, the “lack of foundation” objection most often applies to exhibits or pieces of evidence other than testimony that are brought into court without an explanation of where they came from or what they represent.  Foundation is usually laid by having a witness testify as to what the object is.

At any rate, and after the hearing, the trial court found that H.N. suffered from a mental disorder and presented a likelihood of serious harm to herself. The court entered an order committing H.N. for involuntary treatment for a period of 14 days. H.N. appealed the court’s decision to detain her.

The WA Court of Appeals took the case and decided the issue of whether the trial court abused its discretion when it admitted as substantive evidence e-mailed screenshots of text messages that the State’s expert witness used during her testimony.

The Court decided that the text message evidence was properly authenticated pursuant to ER 901(b). For those who don’t know ER 901(b) is an evidence rule which allows or disallows evidence depending on whether the evidence is properly “authenticated” (or not).

Here, the Court of Appeals gave many reasons why H.N.’s text messages were, in fact, authentic. She gave out-of-court acknowledgments that she sent the messages, the identifying information at the top of the text messages showed that she was the sender of the messages, her phone number matched the contact information in her medical chart, the messages consistently reference names of people in her life, the messages were consistent with certain events in H.N.’s life, and the timing of the text messages were consistent with her hospitalization on the night of the incident.

Consequently, the Court of Appeals affirmed the trial court’s detention of H.N. and concluded that text message evidence was sufficient to support the trial court’s finding that H.N. posed a likelihood of serious harm to herself.

My opinion? The Court’s logic appears sound. Although the text messages are inadmissible Hearsay under Evidence Rule  (ER) 801, hearsay is, in fact, admissible under certain circumstances.  Also, courts may consider evidence that might otherwise be objectionable under other rules of evidence. They can rely upon such information as lay opinions, hearsay, or the proffered evidence itself in making its determination. Such information must be reliable. Here, ER 901 allowed the State to authenticate the text message evidence. It was reliable. Therefore, it was admissible.

How To Protect Your Rights On Facebook

Think twice before posting those party pictures on Facebook.  Check out this story from the LaCrosse Tribune:

http://www.lacrossetribune.com/news/local/article_0ff40f7a-d4d1-11de-afb3-001cc4c002e0.html

In short, University of Wisconsin-La Crosse student Adam Bauer has nearly 400 friends on Facebook. He got an offer for a new one about a month ago. “She was a good-looking girl. I usually don’t accept friends I don’t know, but I randomly accepted this one for some reason,” the 19-year-old said.

He thinks that led to his invitation to come down to the La Crosse police station, where an officer laid out photos from Facebook of Bauer holding a beer — and then ticketed him for underage drinking.

He was among at least eight people who said Wednesday they had been cited for underage drinking based on photos on social networking sites.

*       *       *       *       *       *      *       *       *       *       *       *       *       *       *       *       *

My opinion?  First things first, there’s certainly nothing good to be said about these sorts of law-enforcement tactics. Police always have better things to do than roam the Internet looking for pictures of naughty college kids and there’s no excuse for invading people’s privacy to make a couple petty arrests. The very notion of officers assuming fake identities on Facebook is just inherently repugnant and serves only to destroy their relationship with the very people they’re supposed to be protecting.

That said, it’s also worth keeping in mind that you have a 5th Amendment right not to post incriminating pictures of yourself on Facebook. It’s just an unfortunate reality that police do creep around on the web an awful lot for no particularly good reason and you never know where their prying eyes might land. This means you should think about what you’re posting, and keep an eye out for other people incriminating you as well. Simply untagging yourself from a couple questionable photos could be all it takes to save you a huge hassle down the road.

In my experience, this issue goes beyond what may or may not have taken place in one photo on one particular night. Seriously, I’ve known – and heard of – people who got passed over for a job because their prospective employer found unflattering photos online. Worse, I know of instances in which online photos were used to attack someone’s character in an otherwise unrelated criminal case. The bottom line is that posting pictures online has much broader implications than simply showing your friends what a kick-ass weekend you had.

Finally, remember that if you’re ever confronted with a photo that shows you in a compromising situation, you don’t have to incriminate yourself. Rarely will the photo itself be sufficient evidence to convict you of anything. What they’re really looking for is the confession that they hope will come spilling out of your mouth after they show you what they’ve got. If you keep your mouth shut and ask for a lawyer, chances are they’ve got nothing.

BTW, I’m not offering legal advice by posting this subject matter.  It’s offered for educational purposes only.   😉

Take care,

~Alex~

Break The Law And Your New “Friend” Might Be The FBI

Law enforcement invades social networking websites.

http://www.bellinghamherald.com/2010/03/16/1340457/break-the-law-and-your-new-friend.html

Let’s be frank: it was only a matter a time before the Feds started conducting investigations using social networking sites.  Indeed, I’ve had former clients busted for prostitution because they sell their services on Craigslist, and the police acted as “Johns” to set up a sting.
Be careful!

Too Much Information: Blogging Lawyers Face Ethical and Legal Problems

Chalk it up to the age of Facebook. Blogging lawyers and judges have landed in trouble with legal ethics regulators and judges, while one blogging lawyer ended up as a defendant in a defamation lawsuit.

http://www.abajournal.com/news/too_much_information_blogging_lawyers_face_ethical_and_legal_problems/

My opinion?  I’ve blogged for some time now.  Early on, I discovered that my ethical duties under the Rules of Professional Conduct (RPC’s) clearly prohibit me from discussing certain things.  This is ESPECIALLY true in matters involving judges and clients.

For example, RPC 8.2 prohibits lawyers from making making statements against judges that ” . . . the lawyer knows is false or with reckless disregard as to its truth concerning the qualifications, integrity, or record of the judge.”  Indeed, the rule goes on to say that lawyers take an active role in quelching “bad talk” about judges: ” Lawyers . . . should support and continue traditional efforts to defend judges and courts from unjust criticism.”

Additionally, RPC 1.6 — which addresses client confidences/secrets — holds that a lawyer SHALL NOT reveal confidences or secrets relating to the representation of a client unless the client consents after consultation.

Lawyers, be careful.  Treat clients and judges like gold.  The internet doesn’t exist in a vacuum . . .