Social Networking Offers Bounty of Evidence, But Raises Problems for Both Parties in Case

The Criminal Law Reporter

Social networking provides a ready source of information for good guys and bad guys, as well as plenty of potential for headaches for prosecutors and defense attorneys alike, lawyers said Oct. 23 at a University of California-Berkeley law forum on social networking.

To Robert Morgester, California's deputy attorney general in charge of the Special Crimes Unit, social networking sites mean there are more than 250,000 "sites that I have to worry about."

Morgester and other participants discussed cases involving hidden identity, gang members' use of online communications, and whether there is a need for new laws to address evolving technology.

Morgester said his last case involved a site called "hornymatches.com" and a victim whose identity was impersonated and who received calls from individuals "who wanted to connect."

Hornymatches.com was hosted in the Netherlands, which raised jurisdiction challenges, Morgester said. "For us to get information out of them was extremely problematic," he said.

Investigators found other ways to identify the source of the postings and stalking, and evidence was found on the suspect's computer. The suspect was a deputy district attorney assigned to a gang unit, Morgester said.

Subpoenas on Steroids.

The California AG cannot issue an investigative subpoena, Morgester said. But California has a "special long-arm statute that allows our search warrants to be served on electronic communication providers throughout the United States. My search warrant can go anywhere. It's basically a large subpoena on steroids," he said.

Prosecutors' challenge is to "do a workaround" to get information, Morgester said, "If I can get to you, I can get to your computer. If I can get to your computer, all remnants... [are] going to be on your computer," Morgester said. That will undermine efforts to hide or disguise identity, he said.

Facebook, MySpace, Twitter, and other social networking sites are tools for both sides of the law, according to John Carlin, chief of staff and senior counsel to FBI Director Robert Mueller.

"I do not think at this stage that people realize the amount of information that they are putting out," which is a concern for law enforcement and civil liberties groups, said Carlin.

Gangs are using social networks to contact one another, Carlin said. In Cincinnati, one very violent gang used two dozen MySpace sites to coordinate activities.

Authorities analyzed social networking sites and prosecuted 70 gang members, resulting in a 40 percent decrease of violent crime in that neighborhood, said Carlin. "So in that sense it was a very effective tool," he said.

Are Existing Laws Sufficient?

One question that arises is whether new laws are needed to deal with differences between virtual and offline behavior.

"There is no difference. Crime is crime," Morgester said. "The shift that I've seen is that social networks and the internet in general have removed our moral speed bumps." Internet access means "I can sit in the privacy of my home and cause you all sorts of problems and grief," Morgester said.

Jim Dempsey, vice president of public policy with the Center for Democracy and Technology, believes existing laws are mostly adequate to fight cybercrime. "By and large, the offline rules developed before the internet until now work well in the social networking context," Dempsey said. But he said "there has to be some gap-filling efforts" that are not clearly covered in the online context.

"At the end of the day, it probably requires few newer rules than the moral panic would lead you to believe," said Dempsey.

Orrin S. Kerr, George Washington University law professor, said the question is not whether a new law is needed "but how do these old principles or old statutes apply to the new facts we're presented with."

Section 1030 of the Computer Fraud and Abuse Act prohibiting unauthorized computer access has been expanded over time so it covers "arguably every computer in the world," Kerr said.

The use of the law rose from two or three cases a year a decade ago to about 150 annually now, Kerr said. Almost 80 percent of the cases involve former businesses suing ex-employees for having looked through the network before leaving. This is "not something which any of the drafters of 1030 even thought would be covered" by the law, he said.

While "incredible boorish behavior" occurs online, it is not criminal behavior, said Morgester. "Do we want to criminalize boorish behavior?" he asked.

But there are remedies, the deputy AG said. In one example, comments made to Sacramento-area junior high school girls on a social networking site were "almost a criminal threat" but not quite, according to Morgester. After the parents got a restraining order, the boy who made the threats showed up at school. "Now what happens? He's in the criminal justice system for violating the restraining order," Morgester said.

Impact of Online Postings 'Phenomenal.'

Defense attorney Bill Gallagher, a partner with Arenstein & Gallagher, Cincinnati, said the impact of online postings "is phenomenal. Every time I've been in front of a jury with that type of information, because it is so personal, that carries a lot of weight" whether it is photos, e-mails, posts, or videos.

When Gallagher has a client charged with any kind of crime, he said, "I'm quickly getting on the internet and finding out as much as we possibly can before someone else shuts down that site and someone else goes private instead of public or stops posting" information that may help his case.

Gallagher said he tells his clients to stop texting and sending tweets or instant messages and to shut down Facebook or MySpace accounts. "You don't need to take it down. All you're doing in my mind is taking down that link. They're not removing, they're not deleting anything," he said.

California Superior Court Judge Kurt Kumli, who is in charge of the domestic court in Santa Clara County, said Gallagher's advice does not raise obstruction-of-justice issues.

"Telling a client to cease and desist, essentially to shut up, that's good lawyering. If you're telling your clients to do that, it's tantamount to saying, 'Would you just stop telling people what happened the night of the alleged crime?' That's good practice," Kumli said.