How Facebook Can Win or Lose Your Lawsuit For You

Let’s face it: social networking is fun. We stay in touch with friends flung geographically far and wide, and we reconnect with friends from summer camp, college, and even kindergarten. We make witty comments in our status bar, witty comments about our friends’ statuses, and even wittier comments on those wonderful photos posted everywhere. We comment on political statements, join groups and become fans of things, and write posts about things we feel are important. We even write posts about things that aren’t so important, but that we think are hilarious at the time. We post family photos, high school reunion photos, and photos from parties.

Oops. Rewind.

Photos from parties? She doesn’t remember behaving the embarrassing way that picture depicts her, so maybe she should be reminded!

Reunions? He kissed his old girlfriend and now his wife wants an divorce!

“Witty” comments? Those can be taken any number of ways. And what if we – dare we even think it – get into smackdown-style ripostes with people who get on our wrong sides?

When we are in the midst of litigation where our characters may be an issue, social networking sites are Not Our Friends. Unless, of course, the Other Party’s character is the big issue and they have neither read this article nor taken its advice. Then we love social networking web sites. That’s because lawyers have subpoena power and are not afraid to use it in the quest for elusive evidence that will help win their clients’ cases.

Within the last few years, as more and more people from teenagers to grandmothers register with MySpace, Facebook, Twitter, Flickr, YouTube, Bebo, and any number of other social networking sites, personal information has become easily obtainable on the web. The personal information that these sites protect includes things like credit card numbers, telephone numbers and email addresses. They do not protect the information users carelessly put out in public for anyone to see.

The things that lawyers either love or hate these sites for are the things people do not bother to hide. These are things like how much a person drinks, who they kiss, who they are sleeping with, what social activities they enjoy, what clubs they belong to, what their political leanings are, where they hang out, where they were on a certain night.

Why would a lawyer care about these things?

I’ll tell you why.

Scenario 1:

Bob has come to Lawyer seeking custody of his two children, ages 4 and 7, who live with their mother, Candy. Bob tells Lawyer all kinds of horror stories that his kids have told him about their mother, none of which can be proven in court because (1) judges hate it when young children testify, and (2) it’s hearsay unless they do.  Bob tells Lawyer that Candy has a Facebook page.

Lawyer checks out Candy’s Facebook page, either through Bob’s account or through a third person who is a contact of Candy’s. It turns out that Candy is either a fan or a member of the following groups, among others: NORML, Facebook Sluts, Drugz Rule, and assorted others in the same vein.  On the wall of the group Heroin, Candy posted this comment: “ i think it should b legalized, its ur choice to do it…not anyone elses. It takes away depression nd i dont c wat the big deal of it.” On the wall of the Sex Workers of Pulaski County group, she posted, “i have sex with anyone that pays!” Candy has been tagged in a number of photos with her breasts bared, and apparently extremely intoxicated. She has posted at least three photos of her children riding in cars without seatbelts or car seats. One man posted to her wall, “Last night was gr8 babe but next time dose the kids with something to make them sleep.”  Her reply was, “sry benedryl usually works nex time i use codine.”

Bob makes screen shots of the pertinent posts for his lawyer and continues to deliver posts similarly devastating to Candy’s case on a regular basis. Lawyer files motions asking that Candy be immediately tested for both drugs and sexually transmitted diseases, both of which are positive. At the final hearing, all of these posts are presented as evidence. Candy has no choice but to admit they were made by her.

Guess who wins custody?

Scenario 2:

Joella is injured in an automobile accident. She has filed suit against the person who drove the other car, and who was at fault in the accident. Months and months pass, during which Joella still claims not to be able to walk more than about twenty yards at a go, and claims that she still cannot sit or stand for any significant period of time. Finally, at her deposition, a year after the accident and with her still claiming not to be any better, the other driver’s lawyer pulls out a photo that was posted to Joella’s Twitter account via TwitterPix. It is of Joella  in her snow-bunny outfit sitting on a ski lift. There are about twenty more pictures, all posted to that account over the week of Spring Break just three months after the accident. The accompanying Tweets make it clear that Joella not only had a great vacation on the slopes, but danced the nights away that week in Vail.

Her settlement is substantially lower than she had hoped.  In fact, it does not even cover her medical bills since she continued going to therapy claiming to be in terrible pain long after that ski trip.

Scenario 3:

Because they like crowds and many participants at their events, a group of drag racing enthusiasts posted their plans to hold illegal street races to a web site. They did not realize that police had discovered the web site a couple of weeks before, and to their dismay, on January 15-16, 2010, four of the racers were arrested. The police had staked out the location of the race. Yes, this really happened.

Scenario 4:

Remember the riots after the NBA championship game in Los Angeles last summer? Police used YouTube and Flickr to identify people involved in riots following the June 14, 2009 NBA Championship.

Scenario 5:

You don’t have to be the one who posts anything.  Like the looters and rioters in Los Angeles after the Lakers Championship in June 2009, people with cellphones took photos and videos of a fight in Suffolk, Virginia, that led to the arrest of the participants. The videos were uploaded to YouTube.

We’re starting to see this a lot in the employment law arena – e.g., employees calling in “sick” and then boasting on Facebook about the things they did while out – like drug use, vacations, etc. Surprise! – they get fired for it.

And what about the 17 year old Buffalo, NY girl who killed her boyfriend in a drunk driving accident, then a month later went on a beach vacation. Upon her return to New York, she posted a picture captioned “Drunk in Florida” to her Facebook page. How could she be surprised when the judge essentially threw the book at her at her sentencing?

I don’t think that, in general, this generation does things that are any more reckless or stupid than what many of us did in our youth (although this particular case is obviously egregious), but why would anyone what to publicize their stupidity to the world?

As for why people share these things with complete and total strangers (or just anyone, without restriction, who wants to see them), they either don’t know how to adjust the privacy settings on their accounts, or they’re naive enough to think that those whom they’ve granted “friend” status on a social networking site don’t include people who are just waiting for the chance to rat them out. It seems as if some are absolutely inviting the police to catch them at their illegal activities.

As LAPD’s chief detective Lt. Paul Vernon said as the riot arrests last June mounted, “It’s nearly impossible to stay anonymous in this age of cell phones, video, and social websites; and that’s a good thing, if it holds people more accountable for their behavior.”

The moral of the story is to behave always as though your worst enemy is watching. Chances are, he is.

The Patriot Act Is Dealt a Blow

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” – U.S. Const. Amend. IV.

On March 11, 2004, 191 people were killed and more than 1600 were injured when bombs placed by terrorists exploded on a Madrid, Spain, commuter train. Latent fingerprints were lifted from a suspicious plastic bag, and Interpol sent digital photos of them to the FBI in Quantico, Virginia.

No matches were found in the FBI’s database until higher resolution digital photos were sent the next day. This time, 20 potential matches were returned with respect to one of the latent prints. The FBI was able to pull names, addresses, sex, race, birth dates, and Social Security numbers for the 20 potential matches, and performed background checks on each of them.

Brandon Mayfield, a 38 year old practicing lawyer living near Portland, Oregon with his wife and three children, was ranked number 4 on the list of potential matches for the latent print. Mayfield had not been outside the US since 1994 (he didn’t even have a current passport), and had never been arrested for a crime.

A supervisor in the department that matches fingerprints decided that Mayfield’s prints matched the latent print. For verification, as the FBI sometimes does, independent confirmation was sought. The person who confirmed the match was a former FBI employee who had been reprimanded several times for falsely or erroneously matching fingerprints. He knew that the FBI had already made the match, and he was aware that Mayfield was a practicing Muslim. Because there were less than 12 points at which the latent print and Mayfield’s prints matched, a third analyst also reconfirmed the match. The second reconfirmation was also tainted by the fact that the third examiners knew that the first two had made the match and by the knowledge that Mayfield was Muslim.

The FBI began surveillance of Mayfield and his family. They followed then to the mosque they attended, to the children’s school, to Mayfield’s law office, and to family activities. Attorney General John Ashcroft personally applied to the Foreign Intelligence Security Court (FISC) for an order to permit placing bugs in the private rooms of the Mayfields’ home. While waiting for the FISC order, the FBI went ahead and placed the taps on phones both in the home and in Brandon Mayfield’s law office. They began gathering information about the Mayfields from other people. They also did “sneak and peek” entries into the home and law office, entering, but not removing anything. The Mayfields detected the entry and believed they had been burglarized.

Three weeks later the FBI sent Mayfield’s prints to Spain. In the meantime, several Moroccan immigrants to Spain had been arrested in connection with the bombing. There was no connection between the Moroccans and Mayfield. The Spanish authorities examined the fingerprints and found too many dissimilarities, so notified the FBI that there was no match. The Spanish authorities had the original latent prints, not digital photos of them, for comparison purposes. A formal report from Spain to the FBI followed. Not to be deterred, the FBI sent agents to Spain, but the Spanish authorities were firm. There was no match of Mayfield’s prints to the latent print.

The FBI was still determined to connect Brandon Mayfield to the Madrid bombing. In support of its request for a warrant to arrest Mayfield as a material witness to the bombing, an FBI agent swore in an affidavit that the FBI had determined Mayfield’s prints and the latent print were a 100% match. No mention was made of the Spanish conclusion that the prints were not a match. The affidavit also emphasized Mayfield’s religion and ties to the Muslim community.

Once he was arrested, Mayfield vehemently protested his innocence, but an independent fingerprint examiner selected by Mayfield and his lawyers also determined that the prints were a match.

Thanks to broad search warrants for the Mayfield home and law office, computer files, papers, and even the Mayfield children’s homework was seized by the FBI. Mayfield was held incommunicado in a detention facility, and he and his family were told that he was to be charged with crimes punishable by death. They were told that there was a 100% match between his fingerprints and those found in Madrid. The FBI and the Department of Justice leaked information about the arrest to the press, and there were international headlines proclaiming Brandon Mayfield to be involved in the Madrid bombing.

Two weeks after his arrest, Spain notified the FBI that it had matched the latent print in question with an Algerian. Spain specifically notified the news media that the print did not match Mayfield’s. Mayfield was released from detention the next day, but was ordered to remain on home detention for the next several days.

At least eight federal agencies, the CIA, the National Security Council, the Department of Defense, Homeland Security, the Department of Justice, the FBI, the Department of the Treasury, and the NSA, now have “photocopies or photographs of documents from confidential client files in Mayfield’s law office, summaries and excerpts from the computer hard drives from the Mayfield law office and plaintiffs’ personal computers at home, analysis of plaintiffs’ personal bank records and bank records from Mayfield’s law office, analysis of client lists, websites visited, family financial activity, summaries of confidential conversations between husband and wife, parents and children, and other private activities of a family’s life within their home.” – Mayfield v. United States (CIV. 04-1427-AA, p. 23), ___ F.Supp. ___ (26 Sept., 2007).

It’s not surprising given this chain of events that Brandon Mayfield, his wife, and their three children sued the federal government.

The USA PATRIOT Act allowed the federal government to conduct secret surveillance of Brandon Mayfield and his family based entirely on the misidentification of that latent fingerprint, even after Spain had determined there was no match. The unconstitutionality of the Foreign Intelligence Security Act (FISA) as amended by the USAPATRIOT Act was the subject of a decision by one of Oregon’s federal judges this week.

The USAPATRIOT Act modified the FISA, 50 USC §§ 1801 et seq., to allow the federal government to conduct secret surveillance of U.S. citizens without having to meet the requirements of the 4th Amendment to the U.S. Constitution against unreasonable search and seizure, and against warrantless searches and seizures.

Until 2001, when the federal government sought a warrant under FISA, a high ranking member of the intelligence community, such as the Director of the FBI, was required to certify that the primary purpose of the surveillance was to obtain foreign intelligence information. With passage of the USAPATRIOT Act, that standard is changed. The government now needs only to claim that foreign intelligence gathering is merely a significant purpose of the surveillance. 50 U.S.C. §§ 1804(a)(7)(B) and 1823(a)(7)(B). Because of the USAPATRIOT Act, FISA surveillance orders can be obtained even if the government’s primary purpose is to gather evidence of local, domestic criminal activity.

What does this mean? Passage of the USAPATRIOT Act meant that for the first time since 1791, when the Bill of Rights was adopted, the government could conduct searches and seizures without showing that a crime was either contemplated or had already been committed. It means that the federal government can avoid the probable cause requirement of the Fourth Amendment by merely alleging that part of the reason for the search and seizure is related to foreign intelligence gathering.

The government doesn’t have to suspect its target of any criminal activity at all, so long as gathering foreign intelligence is claimed as part of the reason for the search. The government only has to make a nexus of some sort between foreign terrorism or international espionage and the targeted person or place, and the approval for surveillance is granted under FISA. There doesn’t have to be any specific activity that the government is concerned about, unlike in the Fourth Amendment searches and seizures, where the affidavits and resulting warrants have to be specific as to the information to be sought and seized.

FISA allows surveillance to continue for four months at a time, whereas similar activity in the context of a normal criminal investigation is only allowed to continue for 30 days.

Furthermore, the government can retain the information obtained in the search without notifying the target of the search. Under the Fourth Amendment, the target of the search not only knows there has been a search but has been officially served with a warrant for it, and can challenge the validity of the warrant and the underlying affidavits in court. No such judicial challenge is available under FISA. Unless there is a criminal prosecution under FISA, the target may never know that the government has been watching him, tapping his phones, following him to work, or copying documents or records he thought were private.

The Oregon Federal District Court was mindful of the conflict between preserving the constitutional rights of Americans and the need for national safety and security. It was also mindful that the United States Supreme Court had already determined that the Executive Branch’s arguments to be specious “that ‘internal security matters are too subtle and complex for judicial evaluation’ and that ‘prior judicial approval will fracture the secrecy essential to official intelligence gathering.’” United States v. United States District Court, 407 U.S. 297, 320 (1972).

In 2002, the seven federal judges who are allowed to issue warrants for FISA surveillance – the only seven people in the country who have that power – issued a unanimous opinion finding that the procedures for obtaining approval for surveillance under FISA after passage of the USAPATRIOT Act were improper because they appeared to be geared toward law enforcement purposes rather than toward foreign intelligence gathering.

The U.S. government appealed. The FISCR, the court that reviews any appeals from the FISA court, reversed the unanimous decision of those seven judges. The government was the only party allowed to argue the case even though a number of entities had filed briefs as amicus curiae (friends of the court), urging the appellate court to uphold the ruling of the FISC judges. Only the government is allowed to ask the United States Supreme Court to review appeals from the FISCR.

This week, in striking down the relevant portions of FISA as amended by the USAPATRIOT Act, the Oregon District Court said:

It is notable that our Founding Fathers anticipated this very conflict as evidenced by the discussion in the Federalist Papers. Their concern regarding unrestrained government resulted in the separation of powers, checks and balances, and ultimately, the Bill of Rights.
. . .
[T]he constitutionally required interplay between Executive action, Judicial decision, and Congressional enactment, has been eliminated by the FISA amendments. Prior to the amendments, the three branches of government operated with thoughtful and deliberate checks and balances – a principle upon which our Nation was founded. These constitutional checks and balances effectively curtail overzealous executive, legislative, or judicial activity regardless of the catalyst for overzealousness. The Constitution contains bedrock principles that the framers believed essential. Those principles should not be easily altered by the expediencies of the moment.

Despite this, the FISCR holds that the Constitution need not control the conduct of criminal surveillance in the United States. In place of the Fourth Amendment, the people are expected to defer to the Executive Branch and its representation that it will authorize such surveillance only when appropriate. The defendant here is asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning. This court declines to do so.

Thank you, Judge Ann Aiken.

Read the entire decision here: Mayfield v. United States