ABA: Lawyers Can Snoop on Jurors' Social Media Sites


Jurors always are admonished by judges not to conduct any independent factual research with respect to the cases they are considering. In this way, the rules of evidence will be adhered to and jurors will only be permitted to evaluate evidence deemed admissible and relevant by the judge.

But what about lawyers? How much sleuthing can they do with respect to the potential and actual jurors for their cases? Can they, for example, snoop on social media sites to learn more? Read on.

Researching Potential Jurors

We know that lawyers can conduct a certain level of research when it comes to potential jurors. For example, when I previously worked as a prosecutor, we were provided in advance with information relating to the geographic demographics of potential jurors, as well as their prior run-ins with the law.

Potential jurors from one part of the county were known as prosecution-oriented, while the opposite was true as to those from another part of the county. Also, potential jurors who had previously been arrested or convicted were not thought to be prosecution-friendly. Thus, during jury selection, efforts were made to maximize the odds of jurors who might be prosecution-inclined based on the foregoing information obtained.

An entire cottage industry has developed when it comes to jury selection. There are many jury consultants now plying their trade, and at times they even sit at counsel's table in the courtroom helping the lawyers decide whom to try to keep (or not keep) on the jury based on information such as gender, age, occupation, and other variables.

However, do lawyers (and their consultants) go too far to find out more by visiting the social media sites of potential and actual jurors? Somewhat amazingly, the ABA's answer is "no." Or put another way: Yes, social media sites can be checked out!

Jury Consultants Will 'Like' This...

Yes, indeed, the American Bar Association (ABA) has determined that it is ethical for lawyers to look at the publicly available social media posts of prospective and actual jurors. The only caveat is that the ABA cautions against lawyers actively friending or following these people or otherwise gaining access to them via private Internet spaces.

Perhaps the ABA's guidance is not all that shocking. Public information is public information and should not be precluded from use by lawyers in their jury machinations just because that information shows up on social media sites, some might argue. Others might take the position that even though some social media posts are publicly available, this just goes too far and is too invasive.

One thing is for sure, though, the depth and breadth of jury research will be exponentially expanded under this new regime. And this cottage industry might come more and more outside of the cottage. Plus, thorough jury research of social media sites could become very expensive, as social media searches can be very time consuming, with further time incurred leading to more costly jury-consultant bills.

At the end of the day, will information from social media posts lead to a better jury selection process? Not necessarily. If both sides to a case utilize this information, there could be nullification -- each side challenging the best potential jurors for the other side -- pushing toward a balanced jury in the middle.

Eric Sinrod is of counsel in the San Francisco office of Duane Morris LLP, where he focuses on litigation matters of various types, including information technology and intellectual property disputes. You can read his professional biography here. To receive a weekly email link to Mr. Sinrod's columns, please email him at ejsinrod@duanemorris.com with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.

 
 
 
 

Do Snapchat Messages Really Vanish? Ask the FTC


People frequently use Snapchat to send messages back and forth with the understanding that those messages will disappear after a designated expiration time.

However, the Federal Trade Commission (FTC) launched an investigation and asserted charges that Snapchat messages actually do not vanish as promised. In the wake of those charges, Snapchat and the FTC have settled, according to a recent FTC press release.

So, what is the scoop? Read on.

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What's Up With Facebook's Acquisition of WhatsApp?


WhatsApp, a messaging service that is often used for international texting and other services, is about to be gobbled up by Facebook, right?

Well, that is Facebook's plan. Indeed, Facebook intends to fork over a hefty $19 billion to acquire WhatsApp. However, that is not the end of the story.

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mHealth App Use: Is Data Truly Protected?


One of the reasons why consumers, healthcare providers, investors, the government and others have been slow to adopt mobile health applications and software (apps), are concerns about the privacy and security of data collected through the apps.  For instance, Appthority, a service provider that offers an app risk management solution, recently reported that the iPharmacy Drug Guide and Pill ID app “is playing fast and loose with your personal info.” www.appthority.com/news/mobile-threat-monday-android-app-leaks-your-medical-info-online.  iPharmacy is a free app that allows consumers to maintain a personal health record on their prescription drugs, look up information on a drug, provide reminders, and maintain pharmacy discount cards. Appthority found that while the app description states that it encrypts personal information, it only uses a common encoding scheme and does not protect user info when the consumer searches for information about a drug through the app.  Appthority also claims that the app sends personal information to advertising networks.  Another example of a legitimate privacy and security concern relates to cloud storage.  Many mHealth apps collect physiological data through sensors affixed to the body, store the data in the cloud, and provide the data to a physician or other provider.  If the cloud storage vendor does not provide adequate security protections, the provider could be implicated as a party to the app’s use.  mHealth apps offer tremendous opportunities to advance a more sophisticated and connected healthcare environment – but the modes of connection need to be solid from a data protection perspective.  Good risk management is key.   

 

 
 
 
 

FTC Investigates Facebook's Proposed Privacy Policies


The Federal Trade Commission (FTC) has launched an inquiry to determine whether Facebook's recently announced privacy policies violate an agreement to obtain express consent before revealing users' private information to new viewers.

According to The New York Times, the FTC claims Facebook's new policies require users to provide Facebook with broad permission to utilize their personal information in advertising. Facebook has fired back, stating that this requirement comes from a class action settlement to users who were unhappy that their names and images were used in Facebook ads to shill products to their friends.

Facebook privacy is already a tough subject, but will this inquiry reveal anything new?

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NSA Seeks To Come Clean On Surveillance Practices


With potential reforms in the wind with respect to government surveillance practices, the National Security Agency (NSA) has issued a seven-page report that seeks to explain and justify its conduct.

The report, titled "The National Security Agency: Missions, Authorities, Oversight and Partnerships," begins with a quote from President Obama that calls for "reviewing the authorities of law enforcement, so we can intercept new types of communication, but also build in privacy protection to prevent abuse."

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White House Enlists Help To Get Hip To Cyber Legal Issues


Back in the day, President Bill Clinton touted the development of the "information superhighway," and Vice President Al Gore not entirely accurately was reported to have stated that he had invented the Internet.

Since then, the Internet has exploded and grown exponentially. There have been many benefits, such as the potential to purchase a tremendous number of goods and services online, as well as the ability to communicate freely via social media portals such as Facebook and Twitter.

Of course, the Internet also presents risks. Indeed, the news frequently is filled with reports of privacy violations and security compromises.

In the wake of these realities, the White House now further seeks to get hip by hiring Twitter counsel Nicole Wong. She will occupy a new senior advisory position with an emphasis on Internet and privacy policy, according to Reuters. Wong will team with Chief Technology Officer Todd Park, with a White House aim of dedicating more efforts to combating hackers.

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New FTC "Red Flag Rule" Guidance to Help Fight Identity Theft


The Federal Trade Commission recently issued revised its “Red Flag Rules” guidance.  The Red Flag Rules protect consumers by requiring businesses to watch for and respond to warning signs or red flags of identity theft.  The guidance outlines which businesses are covered by the Rule.  A copy of the guidance can be viewed at http://business.ftc.gov/documents/bus23-fighting-identity-theft-red-flags-rule-how-guide-business.

 
 
 
 

The Social Media Teen Generation


Today's teens certainly constitute the social media generation. And a recent study titled "Teens, Social Media and Privacy" by the Pew Research Center's Internet & American Life Project sheds light on this phenomenon.

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Your Life in Photos: Privacy and a New Kind of Camera


What if you could capture your entire life in photos?  The New York Times reported that a Swedish company Memoto has developed a wearable camera that accomplishes just that. http://bits.blogs.nytimes.com/2013/03/08/meet-memoto-the-lifelogging-camera/. This application goes way beyond Instagram.

Memoto’s website says: "The Memoto camera is a tiny camera and GPS that you clip on and wear. It’s an entirely new kind of digital camera with no controls. Instead, it automatically takes photos as you go. The Memoto app then seamlessly and effortlessly organizes them for you." 

Read more about the pros and cons of this new device at the New Media and Entertainment Law Blog.

 
 
 
 

President Obama's Executive Order: 5 Ways To Improve Cybersecurity


Following his recent State of the Union address, President Obama issued an Executive Order entitled "Improving Critical Infrastructure Cybersecurity."

The Policy section of the Executive Order notes that repeated cyber intrusions into critical infrastructure demand improved cybersecurity. This section correctly points out that the threat to critical infrastructure "continues to grow and represents one of the most serious national security challenges we must confront."

Indeed, it is stated that the "national and economic security of the United States depends on the reliable functioning of the Nation's critical infrastructure in the face of such threats."

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High Tech Replacing Familiar Favorites, But Low Tech Will Live On


Technology is advancing at warp speed, and the way we live is changing constantly. Indeed, what was once lifestyle bedrock is now going the way of the dinosaurs.

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HHS (Finally) Issues HIPAA/HITECH Amendments


On January 17, 2013 the federal Department of Health & Human Services (“HHS”) announced a final omnibus rule that details amendments to the privacy, security, data breach and enforcement rules under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).  The 2013 HIPAA Amendments (which, with commentary from HHS, weighs in at 563 pages) are closely based on statutory changes under the HITECH Act of 2009, and were previewed in proposed and interim rules issued by HHS several years ago. They involve a number of sweeping expansions to the existing HIPAA Rules including: (1) a broader definition of “business associates” (“BAs”) to include downstream subcontractors that handle protected health information (“PHI”) on behalf of BAs; (2) increased penalties for noncompliance, with a maximum penalty of $1.5 million per violation; (3) expanded individual rights, including the right to request electronic medical records; and (4) new limitations on the use of PHI for marketing and fundraising, or the sale of PHI; among other broad changes.   Read the full text here.  Duane Morris is preparing a fuller description of the 2013 HIPAA Amendments that will be distributed shortly. Please do not hesitate to contact Lisa Clark, lwclark@duanemorris.com, Neville Bilimoria, NMBilimoria@duanemorris.com, or your contact at Duane Morris for more information.  Thanks to Elinor Hart, EHart@duanemorris.com, for her prompt assistance with this breaking development.  

 
 
 
 

FTC Imposes a Record $22.5 Million Civil Penalty on Google for Privacy Misrepresentations


On August 9, 2012, the FTC announced that Google agreed to pay a record $22.5 million civil penalty to settle charges that it made misrepresentations to users of the Safari Internet browser when Google represented that it would not place cookies or serve targeted ads to those users.  In doing so, Google violated an earlier privacy settlement it had with the FTC.

FTC Chairman Jon Leibowitz said “[t]he record setting penalty in this matter sends a clear message to all companies under an FTC privacy order. . . “[n]o matter how big or small, all companies must abide by FTC orders against them and keep their privacy promises to consumers, or they will end up paying many times what it would have cost to comply in the first place.”

The FTC's aggressive enforcement is expected to continue and it is important that businesses review their privacy policies to ensure that the policies have not become dated and no longer represent the current data collection and maintenance practices of the business.

The FTC press release can be viewed at http://ftc.gov/opa/2012/08/google.shtm

 
 
 
 

California Spotlights Mobile Applications and Privacy: The Impact on the App (Including the mHealth) Industry


The relationship between privacy and mobile applications is coming into focus.  On February 27, 2012, the California Attorney General entered into a Joint Statement of Principles with the six largest mobile application companies – Apple, Google, H-P, Microsoft, Amazon and RIM – regarding consumer privacy and transparency issues when data is collected through an app.  http://ag.ca.gov/cms_attachments/press/pdfs/n2647_agreement.pdf. The Five Principles set parameters for good practice.  Although not legally binding, the AG promises to review compliance in the fall, and may use California laws on privacy, false advertising, unfair business practices and others as enforcement tools.  Since California often leads the way in privacy enforcement it is likely that other states will follow suit.    

What are the ramifications of this development for mobile medical (mHealth) apps?  A medical app developer must take into account privacy issues, particularly if it collects or assists with the collections of personal data.  In addition, a mobile medical app provider must consider any HIPAA requirements, such as would apply if the app was offered by a health care provider or payor to a consumer, or used internally (e.g. transfer of data by physicians in a hospital).  HHS has established an mHealth Initiative to review the emerging mHealth area and to develop guidance.  In sum, privacy is quickly becoming an important compliance area for mHealth stakeholders: device makers, software and app developers, platform providers, investors, health care providers and payors, and consumers.  Keep an eye on developments and enforcement activities in this area. 

 
 
 
 
 

Duane Morris TechLaw

Duane Morris lawyers share their insights on developing legal issues which impact technology and business. Topics include e-commerce, cloud computing, outsourcing, security, privacy, social media, software, telecommunications and more.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.