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.

Buying Drugs on Instagram: It’s easier than you think

Thought Instagram was for showing off selfies or sharing pics of your vacation in order to be the envy of your friends?

Apparently not…it’s now become the ideal place to connect with drug dealers. The word “obvious” is an understatement for how these dealers operate. With usernames like “ihavedrugs4sale” and drug-riddled posts/pictures, these users eagerly flaunt their offerings. The most popular items in their stock usually include marijuana, prescription painkillers, Xanax, molly (mdma), and lean (codeine syrup mixure).

For those struggling with drug addiction, this presents a huge problem. As the Washington Post reports, searching for the hashtags #oxy, #percocet, #painkillers, #painpills, #oxycontin, #adderall, and #painrelief will return a plethora of posts from Instagram users. Those users may be struggling with addiction, partying like it’s nobody’s business, or dealing the hashtagged drugs online. 

The problem is Instagram’s algorithms can’t distinguish the context the hashtags are used in. And if a user then follows a dealer using the hashtags, Instagram’s algorithms then suggest that user follow more drug dealers. In the course of one day over 50 Instagram dealer accounts were found simply be searching for different hashtags like #weed4sale.

So how does the process work? It will surprise you, or maybe appall, at how simple it is.

Selling Drugs in Social Media

Most dealer profiles have a bunch or “product” photos displaying their inventory and their contact information is in the bio or comments section. While some bravely post their mobile number, most use a messaging app called Kik. No phone numbers or personal info is exchanged here, only user to user messaging.


How are orders fulfilled? It’s as easy as ordering on Amazon. And sometimes faster.


You simply send a message with the product you are interested in purchasing and the dealer responds. Most dealers use wire transfer and can ship out the same day if you send money fast enough.
For what it’s worth, the ability to be connected with drug dealers via social media isn’t a problem unique to Instagram. The same types of posts are widespread on Facebook (which owns Instagram) and Twitter. In recent months Instagram has blocked search results for certain hashtags, such as #fentanyl, #cocaine, and #heroin, all illegal substances. But dealers simply switch to hashtagging their posts with legal drug names, or slightly tweaked the spelling of drug names–and then proceeding to sell both legal and illegal drugs to Instagram users when they connect with them outside of the platform.


Yet still, Instagram’s owner Facebook says it’s aware of the problem and is working to put a stop to the sale of illegal drugs through Instagram, though its initiatives are still in the “early stages.”

As Facebook’s vice president for global marketing solutions, Carolyn Everson, told the Washington Post:
“We’re not yet sophisticated enough to tease apart every post to see if it’s trying to sell someone illegal drugs or they are taking Xanax [because] they are stressed out. Obviously, there is some stuff that gets through that is totally against our policy, and we’re getting better at it.”


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#MeToo Allegations on the Rise in Corporate USA

“People are recognizing the impact — and this is the #MeToo movement — of harassment on people, and how it can impact their careers for years.”
Victoria Lipnic, acting chair, U.S. Equal Employment Opportunity Commission

According to the EEOC (Equal Employment Opportunity Commission) the data shows a sharp increase in sexual harassment cases in 2018 by as much as 12%.

Based on preliminary data, in FY 2018:

The EEOC filed 66 harassment lawsuits, including 41 that included allegations of sexual harassment. That reflects more than a 50 percent increase in suits challenging sexual harassment over fiscal year 2017.
In addition, charges filed with the EEOC alleging sexual harassment increased by more than 12 percent from fiscal year 2017.
Overall, the EEOC recovered nearly $70 million for the victims of sexual harassment through litigation and administrative enforcement in FY 2018, up from $47.5 million in FY 2017.

More and more companies are being advised to begin a reputation management program within their organization to precede potential threats to their executives and employees.

When Is It Illegal to Fire an Employee over Social Media Posts?

Here are some examples of when an employee’s social media posts should not result in firing, even if it may seem warranted otherwise:

When the post is protected in some way. The most prominent example that some employers overlook or get wrong: Employees should not be fired when their social media post could be considered “concerted activity” and could, therefore, be protected activity under the National Labor Relations Act (NLRA). Concerted activity includes discussing working environment among coworkers—even in a negative way in public. Employers can get into trouble when they’re too restrictive in their social media policies—over broad restrictions or repercussions can go against an employee’s NLRA rights.


When there are specific rules that must be followed before a termination (and those are not followed). For example, there may be contractual stipulations with the employee’s union that outline steps that must be taken before any termination. If those steps aren’t followed, the termination may be illegal—even if it would have been fine otherwise.


When the social media post represents some other protected activity, like whistle-blowing, or protected reporting of something else, such as discrimination or harassment.


When the employer/employee are in a state that has other protections. Some states do not allow employers to fire employees for conduct outside of work, as long as the activities themselves are legal. This means that it would be much more difficult for an employer in one of these places to fire someone for conduct it finds distasteful that is still nonetheless legal. Some places also have protections in place for political speech.

*Source: HR Daily Advisor

There is no better time than right now to begin a corporate monitoring program and to be very aware of what is being said about your company and your employees online. A PR social media nightmare can happen in a millisecond and repercussions can last for years.

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.