Category: Litigation

Do You Speak Emoji?

Emojis are now a part of our culture and are being used as a way to communicate everything from emotions to soliciting drugs. Marketers are going as far as to mine emojis in social media the same way they mine data; to determine the emotion behind a brand. Some speculate it will morph into a language in and of itself. This is certainly true among criminals and drug dealers as we have seen first hand in our social media investigations. As we dig deeper into this subject, it is important to establish some baseline knowledge.

Let’s start with some history.

The most current statistics I have found on Emojis shows that there are now 2,623 official unicode emojis. Each day 5 BILLION emojis are used in Facebook Messenger alone and 60 million are used daily in Facebook.

Emojis were first used in Japan (the country where it originated) somewhere around 1997. In 1999 Shigetaka Kurita created the first widely-used set of emoji.

Emoji usage in marketing messages has rapidly increased at an annual growth rate of over 775 percent.

Can Emojis Be Used In Court?

We will be hearing much more on this subject, no doubt. Currently, this has been looked at by several law professors as well as attorneys and law enforcement. What if emojis have multiple meanings? How can one be sure it was meant for criminal purposes?

Between 2004 and 2019, there was an exponential rise in emoji and emoticon references in US court opinions, with over 30 percent of all cases appearing in 2018, according to Santa Clara University law professor Eric Goldman, who has been tracking all of the references to “emoji” and “emoticon” that show up in US court opinions. So far, the emoji and emoticons have rarely been important enough to sway the direction of a case, but as they become more common, the ambiguity in how emoji are displayed and what we interpret emoji to mean could become a larger issue for courts to contend with.

Still, it’s rare for cases to turn on the interpretations of emoji. “They show up as evidence, the courts have to acknowledge their existence, but often they’re immaterial,” Goldman says. “That’s why many judges decide to say ‘emoji omitted’ because they don’t think it’s relevant to the case at all.” But emoji are a critical part of communication, and in cases where transcripts of online communication are being read to the jury, they need to be characterized as well instead of being skipped over. “You could imagine if you got a winky face following the text sentence, you’re going to read that sentence very differently than without the winky face,” he says.

The Verge: Emoji are showing up in court cases exponentially, and courts aren’t prepared

For now Emojis can be used by investigators through investigative consultants and software platforms as a “tip” that there may be something illegal going on. Like anything in social media, it is a piece of a larger puzzle, but one in which needs to be understood.

The Risks of Social Media in Litigation

Social media is obviously not going anywhere. You’ve heard the statistics: Facebook is approaching 600 million users, Twitter users post 90 million “tweets” per day, and the fastest growing demographic of social-media users are those over age 55. The impact of social media cannot be ignored. It is not just influencing how we communicate, but how lawyers litigate.

For some time there has been a lack of guidance on the discoverability and use of social-media content in civil litigation, but recently a growing number of court decisions and ethics opinions have addressed this issue.

So just how is social media used in litigation?

Social Media as Evidence

Social media is not limited to only family and criminal litigation. The usage of it in commercial, intellectual property, employment, products liability and personal-injury cases is quickly growing. Courts and litigants across the country are increasingly relying on evidence secured from social-networking sites. All sorts of evidence discoverable through social media are easy to imagine such as evidence of actual confusion in a trademark case, or evidence of reputation in a libel case.

Securing the Evidence: Public Search or Discovery Request

Often, individuals fail to restrict access to their social-media profile pages, and information about their background, location, reputation, credibility and friends is available to the general public, including an adverse party and the adverse party’s counsel. Thus, as soon as litigation seems likely, it is important to complete a thorough Internet search for information related to the opposing party, not just on Google, but directly on social-media sites.

Recently, the New York State Bar Association issued an opinion that lawyers may access another party’s social media site for potential impeachment material “as long as the party’s profile is available to all members in the network and the lawyer neither ‘friends’ the other party nor directs someone else to do so.” N.Y. State Bar Assoc., Ethics Opinion 843 (Sept. 10. 2010).

If an opposing party’s social media page is not available to the general public, the most efficient way to secure evidence on it is through discovery requests. Investigators can request identification of “any screen names or other identities used on computer sites or for social networking” and document requests might ask for social-media postings and messages related to the claims and damages in the lawsuit.

In 2010, a New York state court ordered a personal-injury plaintiff to provide a consent and authorization so Facebook and MySpace could turn over access to her entire Facebook and MySpace pages, even though she used strict privacy settings. Romano v. Steelcase Inc., 2010 WL 3703242 (N.Y. Sup. Ct. Sept. 21, 2010). In the lawsuit, the plaintiff alleged back and neck problems. But defendants noticed that her publicly available pages painted a different picture. The court noted that the plaintiff’s “private pages may contain materials and information that are relevant to her claims or that may lead to the disclosure of admissible evidence.” Citing Facebook’s and MySpace’s own policies, which warn users that they should have no expectation of privacy, the court noted that “when plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings.”

E-Discovery: Playing Defense

The face of discovery was changed forever when email was born: appropriately named “e-discovery.” And it is predicted that social media will soon replace e-mail as the primary vehicle for interpersonal communications for 20% of business users.

Litigators need to be ready, not just to make the most of social media but also to protect their clients against claims. Social media will no doubt impact preservation, collection, review and production efforts so parties should consider early on whether relevant information may be found on a social media site, and if so, whether or not they are required to or wish to preserve and/or collect such information.

What Can Lawyers Do?

It has become apparent that lawyers must keep informed of changes in the law, including the benefits and risks associated with relevant technology.

1.  Know What Your Client is posting on Social Media

In a 2014 case out of the Florida Court of Appeals, the daughter of the winning party posted a comment on her Facebook page about the outcome of a lawsuit and how it would pay for her European vacation. Unfortunately, the post violated the confidentiality provisions of the parties’ settlement and torpedoed the settlement. Oops! This is a good reminder to always know what your client is posting on social media.

2.  Don’t Remove, or Condone the Removal of Evidence

Social media posts, like any other type of “evidence” may be relevant to the lawsuit in which you are involved. Therefore, like any other type of evidence, counsel may not alter or destroy relevant social media posts nor can we direct or assist others in doing so.

For example, a lawyer directed his client to clean up his Facebook page, and then ultimately deactivated the client’s account before signing a discovery response that the client did not have a Facebook account. The Court levied a collective fine of $722,000 in sanctions against the lawyer and the client, and referred the attorney to the Virginia State Bar.     In addition to the spoliation dangers presented by social media, Gatto dovetails nicely with Point I, supra, and serves as an important reminder to know both what your client is posting, and what your client may be deleting.

Conclusion

It is important to remember that the essence of the legal profession is confidentiality and discretion. The take-away is simple: Rather than run into an ethics problem as a result of a social media post, tweet, hashtag, etc., think before you post.

Could your Social Media posts be used against you in court?

The short answer…yes and no.

Want to know how? Read on!


Most of us use social media to share pictures, exciting events or happenings, uplifting videos, and funny quotes. But some of us also use it as a platform for our political, religious, and social views as well as our downright brutally honest thoughts and feelings. Whether we transmit our rants to hundreds of eager listeners or in private chat threads, we should clearly understand the consequences of our actions.


“Sharing a public rant about your ex-spouse or former employer online may not seem problematic – a lot of people do that to get support and some cheering,” said Sherwin Arzani, attorney at Citywide Law Group. “However, you should remember that social media is evidence and discoverable. Depending on the situation, your opinions can either hurt and/or help your court case.”


Your social media posts can be used as evidence against you
Courts today are more than willing to admit social media content as a form of evidence both for and against you.


In a recent personal injury lawsuit, Largent v. Reed, the plaintiff claimed that a recent accident had left her with severe physical and mental pain. During the course of the trial, defendants presented the court with post-accident photos posted to her Facebook account. These photos demonstrated the plaintiff was clearly feeling well enough to engage in her daily activities such as attending the gym and enjoying life. With this information, the court ordered the plaintiff to hand over her Facebook login information for further inspection.


The lesson? Never assume that anything you share online (publicly or in private messages) is fully confidential. “If you are involved in any case or proceeding, or even a case or proceeding that is reasonably foreseeable, think twice before posting anything that can be self-incriminating or used against you in the courtroom,” said Joseph Fantini, attorney at Rosen Injury Lawyers.


Public social media posts count as legally obtained evidence
Contrary to popular belief, it is legal to use communications garnered from social media sites as evidence. Judge Michael Corriero explains that “the prohibition against using illegally obtained evidence applies primarily, essentially solely, to law enforcement. It doesn’t apply to another civilian.” If you have exchanged self-incriminating messages with someone privately, maybe through a messenger app, those would be admitted by most courts without any issue.


According to Ambrosio Rodriguez, a criminal defense attorney at The Rodriguez Law Group, the same applies to photographs, taken and published by you or someone else. “If a friend takes and publishes a controversial picture showing you drunk in public you may act against them for unfairly depicting you as drunk. But if you were actually drinking at that time, these photos will be used as evidence against you in a relevant proceeding,” he explained.

Deleting your social media content during trials is not smart
“When you are involved in a lawsuit, the rules of evidence apply to your social media content just as they do to the discoverability and admissibility of other forms of evidence,” said Ryan Van Steenis, an attorney at Ajamie LLP, in Houston, Texas. “It is not advisable to delete the content you have shared online. Depending on the circumstances, such activity can be considered serious. A court may find that a negative inference should be held against you for the destruction or spoliation of relevant evidence. This can have adverse consequences to your case, and attorneys representing clients with social media properties should advise their clients how to manage their social media content accordingly. A client is permitted to adjust their privacy settings, but do not take any further actions that the court may deem as suspicious.”


And what you think is “permanently” deleted content” can actually be recovered using new-gen forensic recovery methods. Even if your personal device is password protected, it does not mean that the authorities cannot legally get access to it. Suspects and parties undertaking a trial can be served with a disclosure notice demanding them to reveal all passwords. Failure to comply can lead to further penalties. Everything you share on social media can become part of the public record – whether you want it or not.


So how can you stay safe?
Be a selective sharer. Always stay on the safe side and don’t share anything that you would not otherwise tell freely in public.
Consider using one of the best VPN services available. This helps keep your online activities protected against snooping, interference and censorship, according to TechNadu.
Be careful where you click. Risky apps and dangerous links sent via social media can give hackers access to spy on you, according to CBS News. Also, don’t respond to messages from strangers.

The Dark Web: What’s New?

Even if you haven’t heard of the term “dark web”, you can probably discern that it’s not a great place to be. 

This anonymous, virtually untraceable area of the internet makes it ripe for illegal activity. 

When you surf the internet, you’re just scratching the surface. “Only about 5% of the internet is actually indexed by search engines like Google, Yahoo and Bing,”said Justin Yapp, a PhD student studying cyber security. The other 95% is the “deep web,” with most of the internet unreachable for search engines.

The dark web is an even smaller and more hidden chunk and requires special software — like Tor, which stands for “the onion router.” The name comes from the layers of encryption, which are like the layers of an onion. The information bounces from computer to computer around the world, peeling off encrypted layers until it reaches its destination. It’s anonymous and virtually untraceable — even for law enforcement. “There’s a lot of illegal activity that goes on,” Yapp said. The dark web is notorious for drugs, weapons, child porn and for selling stolen personal information.

Here’s what you should know about dark web websites:

There is bad stuff, and crackdowns means it’s harder to trust

Many dark web marketplaces for drugs and hacking services featured corporate-level customer service and customer reviews, making navigating simpler and safer for newbies. But now that law enforcement has begun to crack down, the experience is more dangerous. “The whole idea of this dark net marketplace, where people are able to review drugs that they’re buying from vendors and get up on a forum and say, ‘Yes, this is real’ or ‘No, this actually hurt me’—that’s been curtailed now that dark marketplaces have been taken offline,” says Radware’s Smith. There are still sites where drugs are reviewed, says Smith, but they have to be taken with a huge grain of salt.

Also, many dark web drug manufacturers will also purchase pill presses and dyes, and create dangerous look-a-like drugs. “One of the more recent scares that I could cite would be Red Devil Xanax,” he said. “These were sold as some super Xanax bars, when in reality, they were nothing but horrible drugs designed to hurt you.”

Smith says that some traditional drug cartels make use of the dark web networks for distribution, “it takes away the middleman and allows the cartels to send from their own warehouses and distribute it if they want to. You know how there are lots of local IPA microbreweries?” he says. “We also have a lot of local micro-laboratories. In every city, there’s probably at least one kid that’s gotten smart and knows how to order drugs on the dark net, and make a small amount of drugs to sell to his local network.”

Not everything is for sale on the dark web

We’ve spent a lot of time talking about drugs here for a reason. Smith calls narcotics “the physical cornerstone” of the dark web; “cybercrime—selling exploits and vulnerabilities, web application attacks—that’s the digital cornerstone. Basically, I’d say a majority of the dark net is actually just drugs and kids talking about little crimes on forums.”

Some of the scarier sounding stuff you hear about being for sale is often just rumors. Firearms, for instance: as Smith puts it, “it would be easier for a criminal to purchase a gun in real life versus the internet. Going to the dark net is adding an extra step that isn’t necessary in the process. When you’re dealing with real criminals, they’re going to know someone that’s selling a gun.”

Some sites seem perfectly innocent

Matt Wilson, chief information security advisor at BTB Security, says “there is a tame/lame side to the dark web that would probably surprise most people. You can exchange some cooking recipes—with video!—send email, or read a book. People use the dark web for these benign things for a variety of reasons: a sense of community, avoiding surveillance or tracking of internet habits, or just to do something in a different way.”

Of course, not everything is so innocent, or else it wouldn’t be found on the dark web. Still, “you can’t just fire up your Tor browser and request 10,000 credit card records, or passwords to your neighbor’s webcam,” says Mukul Kumar, CISO and VP ofCyber Practice at Cavirin. “Most of the verified ‘sensitive’ data is only available to those that have been vetted or invited to certain groups.”

“There are alot of countries that block social media,” Yapp said. Even journalists working to spread content in countries where information is restricted, like China, use the dark web. “I would not recommend anybody go and try it unless they know what they’re doing,” Yapp said.

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How Social Media Helps Solve Crimes

 

 We no longer live in a world of modesty. It seems nothing is off limits these days…online confessions, incriminating selfies, and detailed accounts of crimes. Experts now explain how social media has helped solve numerous investigations.

 

Take 22-year-old Melinda Vasilije, who was found stabbed to death in her Kitchener, Ontario apartment. Soon after, a Reddit post titled “Wanted for Kitchener murder – my side” surfaced. It was allegedly authored by Ager Hasan, 24, Vasilije’s former boyfriend.

In what allegedly appeared to be a detailed confession, Vasilije explained in detail what happened that night. He also posted photos of the former couple together and screenshots of text messages between them. Hasan went on the run in the United States while a warrant was out for his arrested and has been charged with second-degree murder. Preliminary court proceedings are currently underway.

While most social media posts to be self-serving, Hasan’s posts while on the run seemed reactionary rather than motivated by an audience. However, there have been a number of recent cases where it’s obvious the suspects wanted an audience.

For instance, the 24 year old “selfie killer” Amanda Taylor, who was convicted of murdering her father-in-law, 59-year-old Charlie Taylor. Amanda took a selfie holding a bloody knife in front of the dead body of her father-in-law. She then posted it on her social media. While she was on the run she still made time to update Instagram with a photo of a gun in her lap and a note that seemed suicidal in tone. “Alright… It’s about that time. I’m going to go find my husband in Hell and finally be at peace.” Amanda is now serving life in prison after being found guilty of first-degree murder.

When asked why she would post about committing murder on social media, she told local media: “I guess I was proud of what I had done and like I got online and saw a couple different news postings and me and Sean, like, we were wanted,” she said. “They were looking for us, and I don’t know, I just felt the need… I was excited that I had finally [done] it.”

 

Another example of incriminating social media posts involves Cheyenne Rose Antoine, a 21-year-old woman in Saskatoon, Saskatchewan. She was found guilty of manslaughter and sentenced to seven years in prison for killing her best friend. A key piece of evidence that was used to prove she had killed her friend, 18-year-old Brittney Gargol, was a selfie of the two women that showed Antoine wearing the same belt that was found next to Gargol’s body on a road near a landfill.

Lisa Watson, who was Antoine’s criminal defense lawyer, said she’s been seeing social media come up more often in criminal cases since she started practicing law in 2010. “It was all very foreign when social media kind of started exploding onto the scene,” Watson said. “Courts now, at least in my experience, are much more familiar with the various social media platforms.” Watson said Facebook in particular is one platform she’s seen progress in recent years.

“It seems there’s more of an acceptance of evidence coming forth from social media in criminal courtroom now,” Watson said. “Anything that gets written down or recorded, posted, anything like that, people just don’t realize the amount that it can be used and the ways it can be used in a courtroom. Be cautious about what you post,” Watson warns, “and be aware that it can be used perhaps to help you, but perhaps to form a criminal prosecution against you in the future.”

Law enforcement agencies are also turning to social media as a means of both solving crimes and connecting with the public. After 39 years in law enforcement, Florida’s Brevard County Sheriff Wayne Ivey has created a unique use of social media to apprehend alleged perpetrators.

Since taking office in 2013, his department’s Facebook page has amassed more than 100,000 followers. Ivey’s “Wheel of Fugitive” broadcast on Facebook and YouTube, in which he asks the public for tips to locate individuals with current warrants (and yes, he spins a wheel with their mug shots), has led to a number of arrests over the past half-decade. Ivey says his team’s social-media output reaches between 300,000 and 700,000 people weekly—far more than they could hope to reach with more conventional methods.

“When I became Sheriff in 2013, one of my goals was to get vital crime information to the public before they became a victim, and not after,” says Ivey. “We found out very quickly that the overwhelming majority of people were using social media to interact.”

According to Ivey, the success rates in delivering and obtaining information this way, he says, are unprecedented.  With the “Wheel of Fugitive” program, Ivey estimates, as much as 88 percent of perpetrators turn themselves in or are found using citizen tips.

The bottom line is that social media is fair game. Everything you post is public and could be used to help or hinder your case. So think twice before you post!