Privacy & Ethics In An Internet Age: The Sad Truth For Citizens & Facts For Attorneys

There is no more privacy in America.

Friends. Family. Neighbors. Strangers. They can gather information about your whereabouts, your actions, your accolades, and even your darkest hour.

Take, for example, the case of three people charged with two counts of aggravated assault and other offenses in Philadelphia this week after a horrific attack on two gay men in Center City.

According to an article by The Examiner, about a dozen men and women in the 20s dressed to the nines and started for a night out. They ended up verbally and physically assaulting a homosexual couple based on the victims’ sexual orientation.

Then, assault transformed into theft as one of the suspects stole a bag containing the personal information of one of the victims. By the time police arrived on the scene, the group got away.

Or so they thought.

Philadelphia police quickly released a surveillance video of the suspects, which sent the social media-savvy public in a massive manhunt.

Blog, the Daily KOS, breaks down the process here. First, a Twitter user obtained a photograph that allegedly showed the suspects at dinner and retweeted the photo. Next, Philadelphia residents replied to that tweet with the name and location of the restaurant, located 500 feet from the attack.

Finally, another Twitter used went to the restaurant’s Facebook page and looked at who “checked-in”. Facebook users “checked-in” at the restaurant were easily matched to individuals seen on the surveillance photo.

There are at least a few attorneys—those defending the individuals arrested in the attack—who are gaining business from social media sleuths. But, certainly there are many other law firm professionals and citizens who have some concerns over the implications of incidents like this one.

Why? Let’s briefly consider another incident.

In 2006, an eighteen-year old woman crashed her father’s car into a tollbooth in Orange County, California. She was decapitated in the accident and the local coroner deemed the manner of death so gruesome that he did not allow the girl’s parents to identify her body, according to a recent article in the New Yorker.

“About two weeks after the accident, I got a call from my brother-in-law,” the girl’s father told Jeffrey Toobin of The New Yorker. “He said he had heard from a neighbor that the photos from the crash were circulating on the Internet. We asked the C.H.P., and they said they would look into it.”

Sure enough, two employees admitted that they had shared the photographs, which were now permanent additions to the World Wide Web of moral depravity.

People told the girl’s father it would all blow over.

“Nevertheless, [her father] embarked on a modern legal quest: to remove information from the Internet. In recent years, many people have made the same kind of effort, from actors who don’t want their private photographs in broad circulation to ex-convicts who don’t want their long-ago legal troubles to prevent them from finding jobs,” writes Toobin.

“Despite the varied circumstances, all these people want something that does not exist in the United States: the right to be forgotten.”

The New Yorker article discusses the U.S. versus European legal opinions about “the Internet’s unregulated idyll” here.

For law firm professionals right here, right now, the issue is very much at large.

When conducting an internal investigation, social media sites are veritable gushers of evidence. But counsel should curb their impulse to freely access and use social media accounts.

The rules surrounding the use of social media for investigations are changing as fast as online media grows and counsel must consider state enforcement rules, professional ethics opinions, and specific terms of use for each social media site.

What are the recent cases and statutes that have curbed some access to social media information? What are best practices for using specific social media platforms in an investigation? When is social media information discoverable? When is it not?

Can your employees at your firm answer all these questions? Are your clients aware of the same?

The New Yorker wants to discuss the right to fade away into the background. But what about when the law is justly brought against human rights violators, as in Philly? What about the rights to atone, stand up, or move forward?

Clearly lawyers are wrestling with many questions regarding the Internet and rights to privacy. At the same time, citizens—of all professions—should start to think about what side they’re on: the right to be forgotten or the right to be remembered.

For that last food for thought, there’s not clear answer. But, to learn more about social media and your law firm investigations, attend the Center for Competitive Management’s audio course “Social Media in Internal Investigations: What Every GC Must Know About Privacy and Ethics,” Wednesday, October 1, 2014, from 2pm to 3:15 EST.

This comprehensive webinar explores different methods for accessing and recording social media evidence, along with pitfalls, and practical tips for establishing an investigation that’s lawful, responsible and yields credible evidence.

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