When I first signed up for Facebook a close friend was surprised that I had opted to join "the world with no privacy." Undeterred, I ventured on, slowly picking up the Facebook lexicon, though trying to avoid it for fear of it slipping into a motion someday. It was, and remains, remarkably useful and entertaining. But it is also awkward and disturbing in the early going. You are actively invited into people's intimate moments and thoughts, and more likely than not, these are people you may not have seen in years. In part, this was the privacy-lacking world Justice Sotomayor referenced in her U.S. v. Jones concurring opinion, covered here on this blog. As anyone who tried to open a Google-related site this past week only to be warned of a changed privacy policy knows, we are sharing just about everything we do online with someone. This type of inadvertent disclosure, however, is rather different than the intentional disclosures made on sites such as Twitter and Facebook. Yet those intentional disclosures are often made at the spur of the moment, often with a feeling that the universe with whom you're sharing this information is closed and controlled. The truth is far from that, and once made, tweets and posts can have a life of their own. In the past few weeks, two warring Brooklyn gangs and two British tourists found that out the hard way.
In January the Brooklyn District Attorney indicted 43 members of two warring Brownsville gangs, the Wave Gang and Hood Starz. The gangs were responsible for six homicides and 32 shootings in the past 18 months, leaving a total of 38 wounded, including a 9-year old. All of the indicted gang members were teenagers or in their early 20s, which is not surprising given the manner in which law enforcement was able to hone in on their illegal activities.
In their fervor to document and share their exploits both gangs had taken to Twitter, Facebook, and Youtube, leaving behind a trail of electronic evidence. Indeed, the police officers monitoring certain sites grew adept at deciphering the gangs' codes.
The Hood Starz would announce their intentions to enter Wave territory by posting or tweeting about "going to the beach." The Wave Gang would announce having shot a Hood Starz member by stating they had "clapped him off the surfboard." One can only speculate that police were aided in cracking the gangs' codes by the lack of beaches, much less surfing, in Brownsville. Regardless, it's likely that many of the gang members will hear their own tweets and posts being read to a jury sometime in the near future.
The Department of Homeland Security used social media preemptively when they detained and then denied two British tourists entry to the United States. Leigh Van Bryan and Emily Banting were detained, searched, and interrogated about Van Bryan's tweets for five hours. Before travelling to Los Angeles he had tweeted about "destroying" America, a reference to his plans to party and drink hard during his stay. He was also questioned about a tweet where he referenced a "Family Guy" episode, joking about digging up Marilyn Monroe's corpse. Banting, who did not tweet anything, was accused of potentially acting as the lookout for the exercise in body snatching. Both tourists were transported to holding cells where they remained for 12 hours before being placed on a plane back to Europe. Aside from further demonstrating the incredible lack of common sense that now appears to be a tenet of the Transportation Security Administration, this holiday gone wrong is just another example of law enforcement using social media to carry out their mission. It is well-known that the Department of Homeland Security's uses fake Twitter handles to monitor people's tweets, as our unlucky travelers found out upon arrival to L.A.
The allure and pitfalls of social media for lawyers have been extensively covered given the thorny ethical issues that accompany such sites. And criminal defense attorneys know to warn their clients that Facebook and Twitter are to be avoided as their case progresses. Indeed, some may go so far as to ask their clients to take down their Facebook page, though this too can raise issues depending on whether a client "deactivates" their page, or actually permanently deletes that account.
Whatever the case, never before have more people shared more information publicly than today. It's not just teenagers and Millenials on social media either. Facebook's fastest-growing population segment is users over 50. Predictably, and intelligently, law enforcement is watching. Lawyers and their clients should both be aware of the consequences of this sharing, and know that that no code, slang, or jargon can best the easiest solution of all, to simply stop using social media when necessary.
For additional coverage of the Brooklyn gang indictments see here (local news with video) or here (New York Times).
For additional coverage of the TSA Twitter detentions see here (Daily Mail).
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