In a seminar I attended recently on technology issues and family law, a speaker correctly noted that the courts are always going to be 10-15 years behind the times as to how to handle technology in the courtroom. Back in the early 90’s, we used to hear that Maricopa County would ‘soon’ be providing internet access to all case information, including the actual filed documents. In the late 1990’s, an online family court case docket (a list of filed documents, but not the documents themselves) did finally appear, but ECR Online (access to the actual filed documents) came almost a decade later. (By the time I could view court documents online, I’d been buying airline tickets online for at least ten years.)
Court systems have similarly struggled to deal with internet and other technology in the courtroom. Courts were generally behind in telling jurors that they weren’t allowed to Tweet during trials and deliberations and not allowed to Google their questions to find out general information about a pending case. Most courts now include anti-Tweet and technology instructions in standard jury instructions (see Preliminary Criminal Instruction #13, “Admonition”), but jurors have probably already found other ways to communicate to get around the current rules.
Judges and lawyers and litigants connect in ways never previously anticipated, such as friending one another on Facebook or even playing online games together. Judges and attorneys can generally be social media friends (but not in Florida), just as they are sometimes social with each other IRL.
Entire industries have developed just to help lawyers and courts deal with social media in the courtroom. And the partial anonymity of the internet raises new discovery questions for courts, while at the same time, all have to realize that there is no privacy on the internet. In that Fayette, George School District case, the lower court initially allowed a civil case to proceed against a school district for the alleged misuse of a student’s Facebook photo. But on reconsideration and a detailed review of the student’s Facebook settings (which allowed her photos to be viewed by “friends of friends”), the Court reconsidered and dismissed the student’s claim against the School District. The student’s Facebook privacy settings could not withstand an “expectation of privacy” analysis. (Ironically, the School District’s alleged misuse of the photo was during an Internet safety and awareness campaign presented to students to teach them how permanent and possibly detrimental their online postings would be. Lesson learned?) Another Facebook privacy case, United States v. Meregildo, 883 F.Supp.2nd 523 (S.D.N.Y. 2012), noted that even using the more restrictive Facebook privacy setting of “friends only” does not indicate an expectation of privacy, as all of those friends are free to use the Facebook content in whatever way they desire. [Note: Facebook has changed its privacy policies yet again even since these cases, and now allows teen-aged users to have “public” postings, although the default setting for teen users is “friends only”.]
Courts are catching up, and court systems, judges and attorneys will have to significantly adapt continuing legal education projects to keep up with new technology issues cropping up every day.