Rules For Criminal Case Game On Facebook
Matthieu Kool
For many attorneys today, fathering social media evidence is one of the very first steps in forming a case, which means they may have documented incriminating posts long before you got the idea to delete it.
The rules of presenting evidence in criminal cases can be difficult and complicated to understand, but Madison criminal defense attorney Pat Stangl has years of experience with the legal rules regarding admissibility of evidence in court.
Plaintiffs, U.S. citizens of Hamas terrorist attacks in Israel, appealed the district court's dismissal of their federal civil antiterrorism and Israeli law claims against Facebook, alleging that Facebook unlawfully assisted Hamas in the attacks. Plaintiff argued that Hamas used Facebook to post content that encouraged terrorist attacks in Israel during the time period of the attacks.
The DC Circuit affirmed the district court's judgment as to the federal claims, holding that 42 U.S.C. 230(c)(1) bars civil liability claims that treat a provider or user of an interactive computer service as a publisher or speaker of any information provided by another information content provider. In this case, plaintiffs' claims fell within Facebook's status as the publisher of information within the meaning of the statute, and Facebook did not develop the content of the postings at issue. Therefore, section 230(c)(1) applied to Facebook's alleged conduct in this case. The court also held that applying section 230(c)(1) to plaintiffs' claims would not impair the enforcement of a federal criminal statute; the Anti-Terrorism Act's civil remedies provision, 18 U.S.C. 2333, did not implicitly narrow or repeal section 230(c)(1); and applying section 230(c)(1) to plaintiffs' claims would not be impermissibly extraterritorial. Finally, in regard to the foreign law claims, the court declined to exercise supplemental jurisdiction sua sponte to cure jurisdictional defects and therefore dismissed these claims.
42 U.S.C. 230(c)(1) bars civil liability claims that treat a provider or user of an interactive computer service as a publisher or speaker of any information provided by another information content provider.
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On May 2, 2018, the Fourth District Court of Appeals (Fourth DCA) published its opinion in Lamb v. State of Florida, No. 4D17-545, Case No. 502016CF004626A. The Fourth DCA upheld the trial court's ruling that the Facebook Live video presented in this Palm Beach County criminal case was properly authenticated and admissible to the jury. (The link to the Fourth DCA's opinion can be found below.)
There are many juicy bits to this opinion which relate to electronic discovery (#ediscovery) and the use of social media in litigation. The fairly new 2017 Federal Rules of Evidence on self-authenticating evidence provide guidance on this authentication issue and could have been persuasive authority (even though not binding) for the trial courts to consider.
Citing case law in similar criminal cases, the court found that the legal basis for authentication of online evidence is required but the authentication for the purpose of admissibility has a low threshold. Based on the testimony from the digital forensic examiner, the Fourth DCA ruled that the state met the relatively low threshold required to authenticate the Facebook Live video.
As reflected in the Committee Notes, it is the hope of the court that parties and their counsel will utilize this effective tool to efficiently and cost-effectively present ESI in cases. The use of Rules 902(13) and (14) eliminates the need for costly experts and unnecessary time used to present testimony in order to authenticate ESI.
If we want to address this problem, then authorities must do what Monaco spoke about, and actually investigate Facebook insiders for criminal activities. This may sound aggressive, but multiple lawsuits - before Haugen testified - show enough internal discourse involving what appears to be various forms of fraud and deception for the Department of Justice to seriously investigate key actors and potentially make criminal indictments.
But we also cannot ignore another problem we have in American society, which is that the rule of law simply does not apply to the powerful. To take a few examples, no important Wall Street banker went to jail during the financial crisis, the Sackler family has escaped criminal liability for their role in the opioid epidemic, and Boeing CEO Dennis Muilenburg, responsible for hundreds of deaths from the 737 Max debacle, was not indicted, but instead received a golden parachute of $62.5 million. It is the failure to investigate and prosecute those actions that created the incentives to do more of them.
In 2016, advertisers alleged that Facebook knowingly inflated video view numbers by claiming to calculate views that lasted three seconds or longer, when in fact they included views under three seconds, inflating viewership measures by 150 to 900 percent. These errors led to advertisers paying more than they otherwise would for advertising, because they thought their spots were being watched more than they were. Internally, Facebook officials knew of the error for a year before fixing it, which means they knowingly deceived advertisers and benefitted from that deception.
The second example is also a case of fraud in advertising metrics, in which Facebook insiders knowingly misled advertisers by overestimating how many people Facebook advertisements reached. Facebook exaggerated its reach by counting duplicate or fake accounts as distinct people that advertisers could touch through Facebook, at one point telling advertisers it reached more teenagers in the United States than the census counted in the United States. Again, this caused advertisers to spend more than they otherwise would have.
Google to Customers: Antitrust Will Destroy Maps, Gmail, Docs, and Search: Last week, Dave Dayen at the American Prospect reported on how Amazon is telling hundreds of thousands of merchants that it will have to kick them off of its marketplace if Congress passes antitrust law reform.
This is the beginning of a list-building exercise, where Google is trying to find businesses who will back them. And then the search giant will get those firms to contact Congress, with the goal of blocking any sort of legal reform.
I support the anti-monopoly movement because of how it's personally affected my life. My dad's hometown of Crossett, AR is unfortunately a textbook victim of monopolization. It's a company town centered around its paper mill, which until late 2019 was one of the largest in the US. I enjoyed spending a good chunk of my summer and the holidays there growing up. It always seemed the quintessential American small town, with a southern flavor to it of course.
The Crossett mill is owned by Georgia-Pacific, which is itself owned by Koch Industries. The US paper mill industry is highly consolidated, with 3 big companies (GP, International Paper, Kimberly Clark) responsible for much of the industry. Paper milling is a dirty business, and the Crossett mill had its share of notoriety. It was the subject of a documentary film called Company Town and a few years after that, got hit by the largest penalty in GP's history (under Donald Trump's EPA no less).
Shortly after this, the Kochs retaliated against the town by closing down a substantial portion of the mill, laying off nearly 600 people: -closes-plant-after-huge-epa-fine. In a town of 6000 people, where this is the main industry, it was like ripping the heart out of the place.
I then reached out to various people in the town, along with the politicians in the Arkansas statehouse responsible for representing the area. I wanted to see, from my small perch, how I could help. One response stuck with me. I asked why no one else had tried to come in and operate the mill, which was in the middle of prime timber country, with a very experienced workforce. I got told "there's no one else left. The industry has consolidated and there's no one left to step up."
That started me down the road of the anti-monopoly movement. I read Goliath at the beginning of the pandemic. At the same time we were experiencing a toilet paper and paper towel shortage. I couldn't help thinking it might have helped to have GP's 2nd largest paper mill open during that time. It just helped convince me of the stupidity and greed at the heart of our current economic system.
I think we should consider who is behind the whistle blower, and where the actual power lies. From what I've read, the whistle blower is working with the support of and in the interests of the politically powerful to coopt Facebooks immense power over discourse for themselves through public browbeating. Here's a couple of stories on this: -whistleblower-frances-haugen-us-intelligence/
Today I want to use Facebook\u2019s recent scandals to go over the case for criminal charges against Mark Zuckerberg and other Facebook insiders. Behind this essay is a basic question. Does the rule of law apply to the powerful?
First, some house-keeping. I got incredible feedback on my piece on the hearing aid cartel, including a bunch of tidbits on just how dirty the firms are. As one expert in the industry noted, it caused a \u2018shit storm\u2019 among audiologists. I\u2019ll be doing more reporting here, as the U.S. government might start paying for hearing treatment in Medicare or Medicaid.
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