It's Evident

Back

Social Media and the Law
Dr. Susan Zucker, Director Technology & Distance Education

The advent of social media

Social media is a fairly recent phenomenon which is changing human communication and socialization patterns.1 Social media is defined as social Internet networks which comprise Web 2.0 and includes Facebook, YouTube, Twitter, MySpace, Linkedln, blogs, and many other Internet sites. These sites entice individuals to share personal information, experiences, and preferences with others. Another new media known as Citizens Media refers to content created by private citizens, or non-professional journalists.2

Sites such as Facebook, Twitter, and YouTube came into being within the past five years. These sites are increasing in popularity and have opened new avenues for criminal activity.

Because they are increasingly popular, companies are interested in buying them - for a lot of money. Google acquired YouTube for $1.65 billion in 2006 and recently, Bebo, another social networking site, second only to MySpace and Facebook, was bought for $856 million by AOL.3

Not unexpectedly, the realms of law and new media have collided and laws are broken in increasing numbers. Wherever people congregate, whether online or in-person, laws are broken. Cyber law is divided into criminal and civil issues and the issues can overlap.

Cyber crime - diverse and increasing

Cybercrime takes many forms, some of which represent “old” crimes conducted via a new medium. Included are: hacking; cyber-terrorism; human trafficking and child pornography; financial disruption of business and e-commerce; identification theft; piracy; computer spying involving breaches against government sites; copying and siphoning terabytes of information; and intrusion of computers and wireless devices via spyware, bots, worms, viruses, and malware.

Viruses can take down vital systems, disrupting and disabling hospitals, banks, and 9-1-1 services. The collective impact is staggering and billions of dollars are lost every year repairing systems. National security strategy must be comprehensive and embrace domestic and international aspects of cybersecurity.4 (Cyber Secure Institute, 2009)

Indeed, cyber crime is a major threat to U.S. national security. On April 10, 2009, the FBI ranked cyber crime as “the third-greatest threat to U.S. national security, after nuclear war and weapons of mass destruction ...”5 (Cyber Crime and Spying Threaten National Security, 2009)

Alarmingly, anyone can learn the fundamentals of sophisticated crimes due to the abundance of instruction on the internet with minimal risk and in near complete anonymity.6 (Majidi, 2009)

Examples of illegal behavior involving social networking sites

Prosecutors downloaded pictures of a girl from her MySpace page who was charged in a fatal DUI crash. The pictures were used in the pre-sentencing report and post-crash pictures showed her holding a beer bottle and wearing a belt holding plastic shot glasses. It was assumed that these pictures indicated a lack of remorse – thus, sentencing was heavier than usual.7 (Tucker, 2008)

In another case, a mother created a fake MySpace page to harass her daughter's classmate. Allegedly, this led to the classmate’s suicide and her parents blamed the Internet for the incident.8 (McCarthy, 2009)

The famous Craig’s List Murder involved the murder of a woman who was offering massage services online. The murderer is being held in a Boston jail on suicide watch. Newmark, Craigslist founder, has no plans on removing Erotic Services from Craig’s List.9 (MSNBC AP 2009)

In another case, eight teenage girls who attacked a classmate on video posted their criminal activity on YouTube. They were charged for allegedly beating another teen in March 2008 in an "animalistic attack" so they could make a video to post on YouTube.10 (Newser, 2008)

Evidence of misbehavior in the headlines
  • Hacker brings down Twitter, slows Facebook
  • Juror tweets during case
  • Police departments twittering
  • Crime stoppers help solve crimes - $800 stolen pug puppy returned to pet store
  • Electronic bulletin boards and social media sites engage minors in illicit sexual activity
  • Bluetooth Devices used to commit crime and used to prevent or report crime
  • Twittering in Court Legal responses

    As cybercrime diversifies and increases so do legal responses to it. Decisions and actions of government and the American legal system must respect American values related to privacy and civil liberties.

    Legal responses include:

  • Surveillance of social media sites
  • Creation of workplace policies
  • Modification of court proceedings
  • Enactment of new laws
  • Involvement of governmental agencies and task forces
  • Development of public-private partnerships
  • Creation and implementation of new technologies Social media sites are mined for character evidence. Pictures and posts are used as evidence; a photo taken out of context can be disproportionately damning. Naturally, litigants increasingly want to use online content as persuasive evidence.11 (Ha-Redeye, 2009) Evidentiary hurdles exist, including reliability, authentication, and/or the prejudicial nature of certain types of content.

    U.S. spies look increasingly online for information and have become major consumers of social media. 12 (Information Week, 2008) Pursuant to the National Strategy to Secure Cyberspace signed by the President, the Department of Justice and the FBI lead the national effort to investigate and prosecute cybercrime.13 (FBI – Cyber Investigation)

    The FBI's fourfold cyber mission is to prevent the most serious computer intrusions and the spread of malicious code, identify and thwart online sexual predators, counteract operations that target U.S. intellectual property, and dismantle national and transnational organized crime engaging in Internet fraud. 14 (FBI – Cyber Investigation) Computer Crimes Task Forces work in conjunction with the FBI, the Departments of Defense and Justice combining “state-of-the-art technology and the resources of federal, state, and local counterparts” to combat cyber crime.15 (FBI – Cyber Investigation)

    New technologies lead to legal and governmental interventions …

    Legal system: In U.S. courts there have been mistrials. This is the result of jurors researching cases on the Internet after the trials had been in process for weeks.16 (Schwartz, 2009) In other cases, verdicts have been appealed where jurors posted updates on cases on Twitter and Facebook. In still other cases, there have been multi-jurisdictional reliability concerns about online information.17 (Murse, 2009)

    Individual privacy: Online privacy advocates have protested Facebook’s policy of sharing data about you and your friends with application developers. The Office of the Privacy Commissioner of Canada released a report on privacy practices and issued a complaint with 24 allegations of missteps, including: default privacy settings, advertising practices, and policies for third-party applications. The commissioner called for more safeguards to be instituted by Facebook.18 (Office of the Privacy Commissioner of Canada, 2009)

    Copyright infringement: suits online are not new. As a testament to this fact, Google, parent company of YouTube, was sued for massive copyright infringement in U.S. District Court for the Southern District of New York for $1 billion.19 19(Broache & Sandoval, 2007) The suit calls for Google to remove over 100,000 videos from the popular YouTube sight. Similarly, Porno Tube, a YouTube-like web site for porn videos, has been sued by adult-film maker, Vivid Entertainment over alleged copyright infringement.20 (Red Herring, 2008)

    Child pornography: has found a burgeoning market online via social networking sites. In response, hundreds of agents work undercover at more than 30 operations nationwide and internationally to root out child pornography. Agents pose as minors to snare adults who want to sexually exploit children. The FBI and law enforcement partners have opened more than 15,500 cases, charged more than 4,700 criminals, arrested more than 6,100 subjects, and convicted 4,800.

    Text messaging: involves a whole other area under investigation. Forensic linguistics identify messages forged by imposters and are developing databases which will help track messaging patterns. Text message analysis will increase as use of this medium increases. Police Text Tipster lines in large U.S. cities such as Los Angeles, New York, Chicago, and Boston have implemented new cell phone text options that allow the public to send messages to police about possible criminal activity and 911 call centers are accepting text messages.21 21(textually.org, 2009)

    Computer intrusions: are committed by attackers who run the gamut from computer geeks to businesses trying to gain an upper hand in the marketplace to rings of criminals wanting to steal personal information and sell it on black markets to spies and terrorists looking to rob our nation of vital information or launch cyber strikes. Computer intrusions include counterterrorism and counterintelligence.

    Cyber crime: The priority of the U.S. cyber program is to defend national security. The Cyber Division of the FBI addresses cyber crime. Cyber squads investigate computer intrusions, theft of intellectual property and personal information, child pornography and exploitation and online fraud.22 (Krebs, 2009)

    Piracy: As of August 2006, the FBI authorized use of the FBI Anti-Piracy seal and warning by members of the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA), the Software & Information Industry Association (SIIA), the Business Software Alliance (BSA) and the Entertainment Software Association (ESA), subject to each member entering into a formal Uniform Authorization Agreement.23 (FBI, 2009)

    The FBI’s Anti-Piracy Warning Seal was created specifically to deter illegal practices and to increase public awareness of the penalties associated with piracy. This is because piracy of media and other commercial goods account for huge losses to the U.S. economy each year and American consumers pay the price. The seal appears on a lot of different kinds of goods…subject to the terms of licensing agreements.24 (FBI, 2009)

    A look ahead …

    Cyber crime is expected to continue to increase. It will morph as new technologies are developed and more people use them. Challenges presented by these developments produce legal responses which will result in the creation and adoption of new laws. The fact that the U.S. legal system adapts as society changes is not a new phenomenon as this has occurred throughout the course of American history. As the legal system responds, it is of utmost importance that it is done in a manner which not only holds the rights of individuals in high esteem but enforces laws as necessary.

    What will change is the level of cooperation between countries in the regulation of e-commerce and international law.25 (Perritt) This will be discussed further in the January, 2010 issue of It’s Evident.

    Up

    Sources
    1 Information Technologies and Social Transformation, National Academy of Engineering, 1985, http://books.nap.edu/openbook.php?record_id=166&page=1
    2 Wikipedia on Social Media and Citizens Media, http://en.wikipedia.org/wiki/Social_media
    3 DirJournal Marketing Blog, March 22, 2008, http://www.dirjournal.com/articles/popularity-of-social-networking/
    4 Cyber Secure Institute, http://www.cybersecureinstitute.org/insights.aspx
    5 "Cyber Crime and Spying Threaten National Security", NewsHour Extra, April 10, 2009, http://www.pbs.org/newshour/extra/features/us/jan-june09/cybercrime_04-10.html
    6 Vahid Majidi, Oral Presentation - "YouTube Facebook Chat Rooms and Blogs A Fertile Classroom for Illicit Activities" - American Academy of Forensic Sciences Annual Conference, February, 2009
    7 Eric Tucker, "Don't drink and drive, then post on Facebook", AP, July 18, 2008, http://www.msnbc.msn.com/id/25738225,
    8 Caroline McCarthy, Wired, "Guilty verdict overturned in MySpace suicide case", July 2, 2009, http://news.cnet.com/8301-13577_3-10278483-36.html
    9 MSNBC AP, April 22, 2009, http://www.msnbc.msn.com/id/30314735
    10  "Video-Beating Teens Could Face Life", Newser, April 11, 2008, http://www.newser.com/tag/13312/1/cyberbullying.html
    11 "Girls Video Shows How to Kill a Classmate", Wire Services, May 24, 2009, http://www.datehookup.com/Thread-282035.htm
    12 Omar Ha-Redeye, "YouTube Video Entered as Evidence in B.C. Trial, Law Is Cool", January 13, 2009, http://lawiscool.com/2009/01/13/youtube-video-entered-as-evidence-in-bc-trial, (blogging about the first time the B.C. Supreme Court entered a YouTube video into evidence to support an unlawful use of a prohibited weapon charge)
    13 Thomas Claburn, "CIA MONITORS YOUTUBE FOR INTELLIGENCE", Information Week, February 6, 2008, http://www.informationweek.com/news/global-cio/showArticle.jhtml?articleID=206105311
    14 FBI – Cyber Investigation, http://www.fbi.gov/cyberinvest/cyberhome.htm
    15 John Schwartz, "As Jurors Turn to Web, Mistrials Are Popping Up", New York Times, March 17, 2009, http://www.nytimes.com/2009/03/18/us/18juries.html
    16 Tom Murse, "Roseboro jurors' Facebook postings pose problems", Intelligencer Journal Lancaster Online, April 4, 2009, http://articles.lancasteronline.com/local/4/240616
    17 Officer of the Privacy Commission of Canada, July 16, 2009, http://www.priv.gc.ca/media/nr-c/2009/nr-c_090716_e.cfm
    18 Anne Broache and Greg Sandoval, "Viacom sues Google over YouTube clips", March 13, 2007, http://news.cnet.com/Viacom-sues-Google-over-YouTube-clips/2100-1030_3-6166668.html
    19 "YouTube Clone PornoTube Sued", Red Herring, December 2007, http://www.redherring.com/Home/blog/filteredlist?key=porn
    20 "Boston Police Department launches text message based tip line powered by VeriSign", June 18, 2007, http://www.highbeam.com/doc/1G1-165213326.html
    21 "POLICE SEEKING TEXTERS' TIPS", textually.org, July 19, 2009, http://www.textually.org/textually/archives/cat_sms_used_by_the_police.htm
    22 Brian Krebs, "Obama: Cyber Security is a National Security Priority", May 29, 2009, http://voices.washingtonpost.com/securityfix/2009/05/obama_cybersecurity_is_a_natio.html
    23 FBI, Investigative Programs Cyber Investigations, http://www.fbi.gov/ipr
    24 FBI, Investigative Programs Cyber Investigations, http://www.fbi.gov/ipr
    25 Henry H. Perritt, Jr., "The Internet is Changing the Public International Legal System", http://www.kentlaw.edu/cyberlaw/perrittnetchg.html