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.

Life After 360: No, I’m Not Going to Cut and Run. Yet.

The Yahoo! 360 Team’s blog yesterday said a lot more than it really said. Yahoo is “transitioning” 360 in early 2007 to “a more integrated Yahoo! experience.” On the surface, that sounds like a good idea. But the next sentence says something ambiguous: we “can still use all the features of Yahoo! 360 until this transition takes place in early 2008.”

What does this mean? It means to me that Yahoo 360 will be absorbed into something different. It won’t exist as we know it today. We may or may not be familiar with the new features, and we may or may not like them. The new Yahoo profile/blogging platform may be good, and it may not.

The team’s blog goes on to say that “Yahoo! 360 will transition to a new universal Yahoo! profile that will be closely tied to other relevant services across Yahoo!, and will include improved blogging capabilities.” Improved blogging capabilities are definitely a good thing. I’ve thought for a long time that Yahoo 360 could stand to improve its blogging interface. Most of us compose offline because there’s no way to save drafts of blogs, and the way we have to insert photos is cumbersome at best. A spell check would be nice, too. Yes, improvements to 360’s blogging capabilities is definitely good news.

Yahoo wants to keep us here, and assures us that our blogs, friends lists, and other content will be moved smoothly to the new platform. That’s good, but the question remains: What will that platform be?

Many of us who have looked at MASH were horrified right from the start. I’ve stayed and added and removed modules, but I’m closing my profile down. I’m really disgusted with it. If you haven’t seen it, click the link to my MASH profile and surf around. There are some really silly things going on there. It’s just too juvenile for me. I really don’t want to be associated with the word “fugly” and there’s no way to remove it from the page. It’s puerile. I’m 45, for pete’s sake. I don’t say “fugly.” And I really don’t need another pet. Two huge dogs and two little cats are plenty for me. If Yahoo thought MASH would appeal to the more mature 360 market, they were sadly mistaken in my humble opinion.

Because of the rumors of 360’s demise, and frankly because of its limitations, a number of us have been looking at other blogging and networking sites, hoping to find a place that better fulfills our needs. With the news that 360 is going to be replaced with something different, it only seems prudent.

For a long time I’ve cross-posted my blogs on WordPress.com. I like the blog interface. It has limitations, too, but all in all it’s easy to use and the site itself is easy on the eye. It’s not a social networking site, though, and I miss the comments that get made on my blogs here on Yahoo 360. While it may be a good place to park a backup of my blog, it’s probably not where I will end up permanently.

I’ve also cross-posted on Google’s Blogspot and on Live Spaces. Blogspot is very similar to WordPress, and has the added benefit of being a Google product. Blogspot has no social networking. The networking on Live Spaces is so difficult to do that I gave up, even though I did connect with a 360 friend and another person there. I had a MySpace page but closed it down several months ago. Honestly, the noise and the glitter graphics got to me. It seemed juvenile, although not so much as MASH. MySpace is also cumbersome to use, and full of spam.

I’ve looked at other social networking sites. Hooverspot.com was awful. There were more trolls and troglodytes there than on Yahoo IM. Someone told me about Hot or Not. Talk about a meat market! Facebook has been in the news a lot lately. I’ve connected there with real life friends, college classmates, law school classmates, as well as my teenage nephews. It’s lightweight, though, for the serious blogging I want to do. It has some features I like, but not enough to hold my interest. I’ll probably keep my profile there, but Facebook won’t be my blog home.

As I was reading the comments on the most recent entries of the Yahoo!360 team blog, I kept seeing references to a site called Multiply.com. I went there, and I have been pleased with it so far. I’ve sent everyone on my list an invitation. If you don’t get it, it’s either because I don’t have your email address or it went to your spam box.

Last night I was lying at the edge of this Multiply.com pool and testing the water with my fingers, not sure I want to risk getting off-balance by dipping a toe.

I found that I could upload my photos, which is more than I’ve been able to do on Yahoo 360 for quite some time. I can’t get my Flickr photostream to work here at all, and I’ve even paid for an account. Go figure. Uploading the photos was kind of slow, and belatedly I realized that I was making a new photo album when I intended to add to the one I had already created, but perhaps there is a way to combine albums. I’ll poke around and find out.

There is a place on Multiply.com for reviews. My reviews disappeared from my Yahoo 360 page almost a year ago and repeated complaints to customer service have been politely ignored with the same form letter at least six times. I’ve given up.

There is a place to add music to a profile page. I’m not sure I like that, unless it has a start button that a visitor will have to hit to play the music. I listen to my own music as I surf the Internet and when I’m mellowing to the soulful sounds of Miles Davis I just hate being blasted out of my complacency by Rob Zombie. Don’t get me wrong: Rob Zombie has his place, just not in my listening zone. At least, not for long, and not involuntarily. I don’t even like it when people put imeem music in their blogs unless it’s one I can control myself. Probably my migraines have something to do with that – startlement hurts when my head throbs. So does cacophony.

The migraines probably also have something to do with why I hate glitter graphics, and since html is allowed in guestbook entries here on multiply.com, I’ll undoubtedly see more of them than I like. Some of my headaches are brought on by the same things that induce seizures in epileptics. Windshield wipers, strobe lights, flashing icons, and glitter graphics all fall into that category. Maybe I’ll post a notice begging for a glitter-free zone on my page there. I did that on MySpace, but it was largely ignored.

I like Multiply’s blog interface. I’ve never figured out how to do bullets and numbered lists on the Yahoo 360 blog, so that will be a nice feature. I want to explore the “attachment” feature, too. I’m not sure what it is.

The photo interface on the blog looks to be much easier than Yahoo’s. I can add a photo directly from the web, from my computer, or from a photo album I’ve already put on Multiply.com. I can apparently put the photos wherever I want in my blog, too. I like that.

The polling possibilities have up to ten choices. If we’re voting in a blog contest that’s not enough, but frankly I like contests where everyone just participates. I’ve not got a competitive bone in my body. Really. Ten choices is plenty for most purposes.

It’s possible to import blogs from several blogging services, but unfortunately Yahoo 360 isn’t one of them. The Multiply team’s blog says they are different because they care and they respond. I’ll test their truthfulness by asking them to figure out a way for us to import our 360 blogs before the service shuts us down. The comments to blogs will undoubtedly be lost, but maybe there’s a way to preserve even them. We won’t know until we ask. Maybe if enough of us ask, we’ll actually receive. Wouldn’t that be a nice change?

Speaking of comments, Multiply.com has a nifty feature called “Live Replies.” According to the FAQ section, Live Replies will cause comments to appear in real time, without us having to refresh the page to see them. When we’re having a blog party that will mean that the comments will work like a huge group chat! Speaking as one who has been known to blow up the occasional blog, I can say for sure that that will be a blast!

Another thing about the comments is that they allow replies to specific comments, and the person posting the comment as well as the page owner can delete it. There is a spell check on the comment dialog box, and even after posting a comment the comment can be edited. What a nice feature! I haven’t seen that one anywhere else.

Today as more of my friends accepted my invitation to Multiply.com, I’ve discovered that I can set email alerts to receive notice about changes to people’s pages, and I can reply to the changes right there in my email. That means if someone comments on my blog or my guestbook, I can see it in my email and post a reply from the email, never having to go to the blog at all. Likewise, if someone posts new pictures or a blog, I can get an instant email and check it out. I’ve enjoyed this today, but it’s been a slow day at work. On a busier day, it might be a distraction.

There’s a networking option for creating groups of users with similar interests and affiliations. That is a good feature of Facebook and MySpace that I can see being put to good use here.

The links module on the top page works like a blogroll. Another thing to ask the Multiply.com team about is adding RSS feeds. Links to feed sites will work to an extent, but I like to see changing headlines. That was something that never really satisfied me about Yahoo 360’s feeds. I haven’t dug around the site enough to know if adding other modules to the profile page is possible.

There’s an interesting messaging system, which seems to be similar to the bulletins MySpace does. The nice thing is that you can see messages posted by the community as a whole, by just your closest contacts, or some midrange between the two. Not being a fan of chain mail, I’m not one to read a lot of bulletins and messages, but occasionally there’s an announcement that we want to make to a larger group – something like “Hey, I want to suggest a blog contest” or something like that. Private messages are also possible.

I know there is more to the site, and I just started exploring it last night. So far, Multiply.com gets a tentative thumbs up. We’ll see if it stays that way.