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Is Facebook on its way to the Supreme Court’s agenda?

By A.J. Wagner

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Judges tend to be older. One cannot become a judge in Ohio without six years under their belt as a lawyer and the electorate usually looks for someone with experience when casting their vote.   So a few gray hairs help a judicial candidate. If there’s a problem with this formula for success it is this, judges are often behind the curve when it comes to modern technology and social media.

It was only last year that the Florida Supreme Court ruled that judges can’t be friends with lawyers on Facebook. Ohio’s Supreme Court Board of Commissioners on Grievances and Discipline determined that “friend” on Facebook doesn’t mean bosom buddy so they allow such relationships provided the judge maintains “dignity in every comment, photograph and other information shared on the social network.”

Before I retired as judge at the end of last year, I was at a seminar with about 50 judges. We were asked how many of us had a Facebook account and about three of us admitted our possible transgression. A few judges were dismayed at this possibility but most were baffled. “Why?” was the question I heard most often.

Judges are coming around, however. Not because they want to be on Facebook, but because criminals, cheating spouses and individuals with civil protection orders against them want to be on Facebook.

There are so many criminals willing to brag on Facebook, Twitter or MySpace about what they’ve done, or are going to do, that the New York City Police Department now has a unit dedicated to combing social media full time. The question that will ultimately be presented to courts in these cases will be, “Did they need a warrant?”

That same question has been coming up with other technologies. Heat detectors, cell phones, GPS (Global Positioning Systems) and tablets all have the possibility of revealing information never intended for public disclosure. So, does the use of these technologies to conduct surveillance and searches violate the Fourth Amendment to the Constitution? That amendment states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

As a rule, unless police have permission or there is some exigent circumstance, that is to say some urgent need, they cannot enter or search your house, car, mail, phone calls, papers or person without a warrant. A warrant can only be obtained from a judge upon a finding, based on a sworn statement, that it’s probable there is specific evidence of a crime at the location to be searched. Also as a rule, those things that are in public purview do not require a warrant.

How do these rules apply to high-tech devices and social media?

The U.S. Supreme Court in Kyllo v. United States has addressed the use of heat detection devices to determine if drug cultivation is going on in a house.  Suspicious that marijuana was being grown in Kyllo’s home, agents used a thermal imaging device to determine if the amount of heat emanating from it was consistent with the high-intensity lamps typically used for indoor marijuana growth. The scan showed the garage roof and a side wall were relatively hot compared to the rest of the home and substantially warmer than the neighboring units. Based in part on the thermal imaging, a judge issued a warrant to search Kyllo’s home, where the agents found marijuana growing.

The court held that where, as here, the government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment “search,” and is presumptively unreasonable without a warrant.

This term the Supreme Court will determine if this same rule applies to a GPS device used to track a drug dealer’s car. The court will need to address if tracking a car is a search under the Fourth Amendment, if GPS is in general public use, and ultimately if a warrant is required.

Facebook is not on the Supreme Court agenda at this time, but questions will be raised in lower courts as to how public the information is on social media and how the police can monitor a Facebook account without a warrant.

Of course, by the time decisions are made on high-tech devices and social media to clarify the law, there will be a whole new generation of devices awaiting legal interpretation.
The next generation of judges will have plenty of work to do.

Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein.

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper.com.

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper.com.

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