Social Media and the Sean Goldman Kidnapping and Custody Case

Jeff Rossen of NBC News has been providing real time Twitter updates for the Sean Goldman kidnapping and custody case. For those who have not heard about this case I would like to provide a brief synopsis. David Goldman, a New Jersey resident married a Brazilian, Bruna Bianchi in New Jersey in 1999. They had a son, Sean Goldman, born in New Jersey in 2000. On June 16, 2004, Ms. Bianchi and Sean left to visit her family in Brazil on a planned vacation. After arriving in Brazil, Ms. Bianchi called her husband to tell him that their marriage was over, their son Sean would not be returning to the United States, and that her husband must sign over legal custody if he ever wanted to see his son again.

David Goldman refused to relinguish his legal rights and started the legal fight to bring his son home. International law has been clearly on Mr. Goldman's side from the begining. However, Ms. Bianchi remarried a politically connected Brazilian attorney who just happens to specialize in international family law. Ms. Bianchi and her family have used every possible legal maneuver to keep Mr. Goldman from being reunited with his son. During this time, Mr. Goldman has had little contact with his son.

About a year and a half ago, Ms. Bianchi died while giving birth. Despite this tragedy, her family continued the legal fight and refused to return Sean to his father. Due to the power of traditional media, social media, and excellent public relations, the Obama administration along with several U.S. Senators and Congressmen have gotten involved with the case to strongly urge Brazil to follow international law which requires Sean to be returned to his father.

The Chief Justice of Brazil yesterday tweeted his decision to return Sean to his father and according to a report earlier today, Mr. Goldman's late wife's family will not appeal the Chief Justice's decision. Therefore, Mr. Goldman and his son could be reunited later today.

The use of social media is exploding and changing the way our entire society communicates. Even though the U.S. legal system is usually slow to adapt to change it will eventually have to embrace social media.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Supreme Court To Hear Potentially Groundbreaking Social Media Law Case

The U.S. Supreme Court has agreed to hear a Federal appeals court case from California that may lay the groundwork for determining whether an employee has an expectation of privacy when sending a personal text message and other personal communication from a work computer or other work issued property in the Social Media Age. The case, City of Ontario, California, et al., Petitioners v. Jeff Quon, et al. (No. 08-1332) may enable the Supreme Court to determine when and if an employer has the right to monitor any of the following personal accounts accessed at work: a personal email account, a Facebook account, or a Twitter feed.

Police sergeant Jeff Quon sued the City of Ontario, CA for violating his workplace privacy rights. Quon claimed that the City conducted a constitutionally banned unreasonable search by reviewing his text messages, despite those messages being sent from a city owned and paid for pager account. Notwithstanding Quon's claim, the trial court ruled that the City of Ontario had not violated his privacy. Quon successfully appealed to the U.S. Court of Appeals, 9th Circuit which reversed the trial court's decision. The City of Ontario has since appealed to the U.S. Supreme Court claiming that Quon did not have an expectation of privacy in his communications.

Interestingly, Quon signed a form that acknowledged that his personal communications on his work-issued electronic devices would not be private. Despite signing the form, he utilized a work issued pager to send non-work related messages, including messages that some have deemed sexually explicit.

In general, an employer has the right to monitor any electronic communications accessed via employer owned equipment. Internet and Social Media Law is still evolving and the courts have begun to recognize there may be a distinction when an employee accesses personal email and social media accounts utilizing an employer's property.

In my opinion, the Supreme Court should reverse the 9th Circuit's ruling and find for the City of Ontario because an employer needs to be able to review any electronic communication that is sent via an employer owned account. Email, text messaging, and pagers have been commonly used in the workplace for more than 15 years and employees know or should know that they have no expectation of privacy when sending messages through an employer owned account. An employee should only have an expectation of privacy when communicating on his or her own personal computer, personal cell phone, or personal smartphone.

The case is scheduled to be argued in Spring 2010 with a Summer 2010 decision likely.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Tweeting May Land You In Prison

The World War II adage, "Loose Lips Sink Ships" applies to Social Media in the 21st century. It appears that Roger Avary, Co-Screenwriter of Pulp Fiction, either never heard of this slogan or never thought his tweets would lead to his incarceration.

Mr. Avary pleaded guilty earlier this year to vehicular manslaughter while intoxicated. Mr. Avary was purportedly driving more than 100 mph when he crashed his car last year. A passenger in his car was killed and his wife was injured in the crash. Even though he was sentenced to prison for his actions, it appears he was instead assigned to a work furlough program. L.A. Times Technology blogger, Mark Milian discovered Mr. Avary's Twitter account and his tweets so he investigated why Mr. Avary was able to tweet when he was scheduled to be in prison without cell phone access. It turned out that Mr. Avary was assigned to a work furlough program instead of prison. Mr. Milian blogged about Mr. Avary's tweets and within several days it appears that Mr. Avary was reassigned to jail.

The old adage "silence is golden" still applies in the age of social media. It appears that Mr. Avary would have been better off if he had kept his mistaken gift of freedom to himself.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Tweeters Beware: Google Is Archiving All Tweets

Do you remember the scene from the movie Swingers where Jon Favreau's character Mikey makes multiple phone calls to a Nikki, a woman that he met earlier that night at the Dresden and embarrasses himself so thoroughly that she tells him to never call him again? Whether Mikey was "Drunk Dialing" or not, when the movie was made in 1996 there was not a chance of his actions being disseminated to the entire world.

Fast Forward to 2009. Now imagine if you start "Drunk Tweeting" or "Drunk Facebooking." Instead of only one person knowing about an episode in your life that you may want to forget, all Internet users may now be able to access this information because Google is now archiving all tweets. This may not only lead to future embarrassing situations, it will also drastically increase the cost of E-Discovery. As a take off from a saying that some have attributed to Mark Twain, "It is better to keep your tweets to a minimum and be thought a twit than to tweet all night and remove all doubt."

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Courtney Love Is Being Sued For Her Tweets

Courtney Love is being sued by fashion designed Dawn Simorangkir after Ms.Love allegedly posted false and derogatory statements about Ms. Simorangkir on Twitter. According to CNN, Ms. Love made the alleged libelous statements after she had a disagreement with Ms. Simorangkir regarding the cost of Ms. Simorangkir's services.

The bottom line is that social media users should avoid posting content that may be considered libel. Insurance companies who provide Social Media Insurance or Social Networking Insurance for active Tweeters, Bloggers, and Facebookers would be wise to capitalize on the market's need for this type of insurance sooner rather than later. Social Media Insurance will one day be as common as an insurance rider for personal articles.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Lawyers Must Be Mindful of Their Social Media Usage

There is an excellent New York Times article by the paper's National Legal Correspondent, John Schwartz, that discusses some examples where lawyers have been sanctioned for their Facebook posts, blogs, and tweets. Lawyers who utilize social media must realize that the Code of Professional Responsibility that every member of the Bar must follow in their every day interactions with prospective clients, clients, opposing counsel, judges, etc...is also in effect in cyberspace. Even though the First Amendment protects most speech, a person still can't falsely yell fire in a public area. Attorneys as officers of the court have additional responsibilities. The bottom line is that every lawyer should thoroughly read their prospective posts, blogs, or tweets before they are published in cyberspace. Before I publish a post, I ask myself:

1) Will my post add value to an area of discussion?
2) Does my post violate the Code of Professional Responsibility?

If my post can add value to a discussion and does not violate the Code of Professional Responsibility I publish my post. If my thoughts do not add value to an area of discussion or if I think they may violate the Code of Professional Responsibility I do not make the post. In general, I try to avoid personal attacks on others. I try to live by, blog by, tweet by, and post by this adage that my late Grandfather instilled upon me: "Better to keep your mouth closed and be thought a fool than to open it and remove all doubt."

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Proposed San Francisco Superior Court Social Media Policy May Be A Model For the U.S. Court System

San Francisco Superior Court has proposed a new rule scheduled to go into effect on January 1, 2010, that notifies prospective jurors on the cover sheet of the juror questionnaire that blogging, tweeting, or utilizing the Internet to obtain or share information about their case is prohibited. According to Ann Donlan, the Communications Director for San Francisco Superior Court, "the judges currently admonish jurors from the bench about discussing the case. This [rule] is not to prohibit the use of technology by jurors. This is a rule to (1) provide consistent instructions for jurors in those cases in which a questionnaire is being used and (2) to remind jurors, in writing, of the admonishment not to discuss the case with anyone."

In my opinion, this is a very practical and long overdue rule that I believe should be implemented in some form throughout the entire U.S. court system. The last time I was called for jury duty I noticed that several prospective jurors were utilizing their blackberries and there is no way to know if they were just reading their email or tweeting about their jury duty service.

I would like to thank Ms. Donlan for sending me a copy of the proposed draft rules and providing some insight about them.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Hollywood Is Trying To Figure Out How To Embrace Social Networking

Great article today in the Baltimore Sun today about how Hollywood is trying to figure out how Social Networking websites effect movie openings. Twitter and other Social Networking websites are great for getting the word out and should be incorporated into every marketing campaign for any business. As demonstrated in the past year in elections throughout the world, social networking when used deftly can be a very powerful tool.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.