Social Media as the Next Judicial Frontier

By lfsuser on July 21, 2016

As the use of social media increases, its influence in the judicial system has greatly increased. As is to be expected with new technology, the issues brought about by social media are new and unique.

Jury Selection

Social media is being widely utilized in jury searches. The American Bar Association noted that this new type of “online voir dire” was valuable and should be permitted – at least to an extent. In American Bar Association Formal Opinion No. 466, attorneys were permitted to engage in a “passive review” of a juror’s internet presence. However, any type of “access request” whereby the attorney attempted to gain access was expressly prohibited.

In this year’s technology-based case Oracle America, Inc. v. Google Inc., the court further detailed what would be permitted under such a “passive review.” On March 25, the Oracle court issued an order regarding internet and social media searches of jurors. Like the ABA, the Oracle court recognized the importance of social media searches. However, the problems of jury members conducting their own searches, improper personal appeals to individual jury members, and the erosion of juror’s privacy lead the court to limit social media search.

Although the Oracle court initially requested the parties voluntarily consent to a ban against internet research, it then recognized this was not realistic. Instead, the court outlined an internet search procedure. First, each side would inform the jury members of the scope of the internet search. The jury members would be given “a few minutes to use their mobile devices to adjust their privacy settings.” (Case 3:10-cv-03561-WHA, Doc. # 1573.) The attorneys would be permitted to conduct internet searches on the potential jury members at that point, but only within the scope previously stated and likely dealing with much more private social media profiles than before.

Service of Process

However, the usage of social media in the legal system goes far beyond this type of “passive search.” Perhaps the most inventive use of social media was the recent service of process via Facebook Messenger. In Baidoo v. Blood-Dzraku (N.Y. Sup. Ct. 2015) 48 Misc.3d 309 [5 N.Y.S.3d 709], a New York court permitted a woman to serve her husband with a divorce summons through Facebook’s messaging service. After several attempts to serve the man through more traditional means, the court noted that the woman could use Facebook for service so long as she submitted a supplemental affidavit regarding the accuracy of the Facebook profile, established that her husband was logging on to his Facebook account, and established an alternative means of service. In the court’s final embrace of technology, it permitted the woman to text her husband as an alternative means of service, following initial service via the Facebook message.

There are currently no statutes in California permitting this type of service via social media, however.

Social Media as a Tortfeasor?

Last month, the father of the only American victim of the 2015 Paris shootings, sued Facebook, Google, and Twitter, alleging that the companies provided support to the terrorist organizations that carried out the attacks. A similar suit was filed in January of 2016 by the wife of an American man who killed in a terrorist attack in Jordan. She alleged that Twitter was to blame for knowingly permitting terrorist organizations to exist on the social media platform. It is likely that these social media platforms will invoke the provisions of the Communications Decency Act of 1966, Section 230, which gives immunity to social media sites merely hosting comments by a third-party. However, the arguments could raise an argument of a failure to restrict access to or availability of material. See 47 U.S. Code § 230(c)(2).

Each of these instances illustrate the broad application of social media platforms in the judicial system. It is clear that the role of social media is expanding and that courts are generally accepting of that expansion. Social media, in all of its forms, presents a unique concept and will undoubtedly result in some of the more uniquely crafted responses by the courts.

This communication may be considered advertising in some jurisdictions. It is intended to provide general information about legal developments and is not legal advice. If you have questions about the contents of this alert, please contact Christina Forst at (415) 697-2000 or cforst@aghwlaw.com.