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Date Archives: January 2013

Social Media Policy: You’re Probably Doing It Wrong

Countless lawyers and HR professionals bravely set out to craft social media policies without having critical tools: a true working knowledge of social media, a clear direction, common sense, and an up-to-date knowledge of what is allowed by law.  

Don’t trust the lawyer-with-a-facebook-account nor should you task the youngest associate to cut and paste from policies floating on the internet.

Test your company’s or firm’s social media policy against these nine examples to see if it passes muster.

If your business chooses to have a social media policy, hire someone who knows how to write (and update) it.

Special thanks to the Palm Beach Bar for publishing this in the February 2013 Bar Bulletin.  Article is here.

Fawcett v. Altieri: A New York Court Gets Social Media Discovery All Wrong

A New York court has held that, based on a “survey of social media case,” that there is a two prong test for production of Facebook content which includes developing facts before conducting certain discovery.  The court notes that Facebook production is “tantamount to a costly, time consuming fishing expedition…”  Moreover, the decision discusses privacy rights in the context of Facebook posts.
The opinion in Gina Fawcett, individually and as parent of John Fawcett, Jr. v. Nicholas and Gerald Altieri and St. Joseph by the Sea High School.
Assuming this opinion accurately cites to New York procedural rules, they are markedly different than federal (or Florida) standards.
Some issues with the decision:
The court’s “survey” of social media cases… was three cases.  THIS is a survey of social media cases.  Not merely three cases.
That two prong test (supposedly arising from those three cases) prioritizes some forms of discovery over others and turns a blind eye to the wide discovery that’s permitted in business context.
Facebook production is not costly, nor time consuming.  It’s free and easy.  See the 4 steps here.
If there is a case finding Facebook posts to have privacy protections, it’s an outlier.  Most cases hold, like the one New York case, that a post is akin to yelling out the window.
Here in Florida, even a private diary is discoverable.  Suggesting that there has to be some “predicate” before paper discovery puts a magical wall around social media which a party can construct by downplaying or denying what’s inside.
As a side note, see this 2006 Florida Bar Journal article on Electronic Discovery in Florida — a tad outdated after six years, but a good initial primer.

Internet Safety for Parents & Students 2013

Last year we discussed, “there is no delete.”  This year we add to that: social media is not free; the price of admission is your personal information.

A special thanks to Rosarian Academy for allowing me to speak to parents and students in separate sessions so parents can learn tips about social media and how to protect their own privacy as well as start the discussion with their children.  

Likewise, students learned about examples where emails, photos, and Facebook posts which people thought were private… ended up circulated around the globe.  And how that can affect their high school, college, and job applications.  We also discussed illegal downloading and other computer crimes.

The Powerpoint for the parents is here.  The student version is here.

What the Patreaus Scandal Tells Us About Email Privacy

This article discusses the Patreaus affair from the standpoint of practical email privacy tips for lawyers, law firms, their clients, and families.

A brief explanation is provided how emails (or even fake email addresses) are traceable with free software and what data exists on the person’s computer to show what sites have been viewed.

This article appeared in the January 2013 edition of the Palm Beach Bar Association Bulletin.

What Does a Child Pornography Case Tell You About Computer Evidence?

Want to know how to find (or hide) on a computer what websites were visited, what images were viewed, and what files were deleted?  Even if you are not a computer forensic specialist, you can find this information using basic steps and free software on the Internet.  This is helpful for inhouse counsel, lawyers, and even parents.

Surprisingly, these steps are considered so easy, that Judge Posner of the Seventh Circuit stopped short of claming, “even a judge could do this.”  Instead, he notes that “despite the availability of software for obliterating or concealing incriminating computer files, the use of such software is surprisingly rare.”  Well, maybe.  CCleaner remains a frequently-sought program at Download.com.  The case is United States v. Seiver.

Learn computer steps and evidence standards in the November 2012 article from the Palm Beach Bar Association, What Does a Child Pornography Case Tell You About Computer Evidence?