Can A Judge Force A Juror To Reveal Facebook Account Info?
from the we-may-soon-find-out dept
And here we go with yet another case about courts struggling with the idea that jurors use social networking tools. In the latest in a long line of such cases, a juror in a case about a gang beating, named Arturo Ramirez, has been ordered to turn over information from his Facebook account, after another juror claimed that Ramirez had broken the rules by mentioning the case on Facebook. Apparently Ramirez's big violation was to wonder if the case could "get any more BORING" on his Facebook account. Rather than just respond to that issue, the defense attorneys in the case sent a subpoena to Facebook asking for Ramirez' full account info. Facebook noted that giving out such info would clearly violate both the Stored Communications Act and the Electronic Communications Privacy Act. The judge, in attempting to get around those laws, has ordered Ramirez to sign a consent form allowing Facebook to hand over the info... or face contempt of court charges.While I agree that it wasn't the smartest move by Ramirez to mention the case on Facebook, the reaction seems to go way beyond reasonable. In particular, having the judge basically force Ramirez to give up the rights granted by the SCA and ECPA seems to go way over the line. Ramirez is planing to appeal the order, as it clearly seems to go against the basic structure of those two laws to then force someone to give up those protections or risk a contempt of court claim. And, honestly, given that Facebook communications tend to be the sort of thing you say to your friends, when you step back and think about it, imagine if Ramirez had simply made the same point to a friend one day during the case. Would the court really go to such extreme lengths in such a scenario?
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: ecpa, juries, privacy, social networks, stored communications act
Companies: facebook
Reader Comments
Subscribe: RSS
View by: Time | Thread
Stretch!
The guy made a public comment about a case he wasn't support to discuss, and as a result, they need to make sure he hasn't made any other such comments in the same manner. It's not really unusual, unless you are trying to create a techno-panic by using "privacy, facebook, court order" in the same sentence. Is Techdirt perhaps guilty of the same things they claim of others?
[ link to this | view in thread ]
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re:
Don't get me wrong, the guy was dumb for talking about the case. However, that doesn't justify this abuse of justice. This could set a terrible precedent whereby someone could be found in contempt of court for failure to produce personal information like passwords, PINs, or cryptographic keys.
What gets me, though, is that you go all off on this "facebook = public" thing. If that's true...why doesn't the Court just go to the juror's profile page and read away?
...oh, right, because not everyone's facebook profile is public. So your argument regarding Ramirez's "public comment" is a straw man.
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
Consent or be shot
Consent or be shot.[ link to this | view in thread ]
Re: Re:
Let's take this further. As a prerequisite to being a juror, you must sign a Consent to Wiretap form. This is so the authorities can make sure you aren't talking about the case with anyone on the phone. Failure to sign your Consent to Wiretap form will send you to jail for contempt of court.
[ link to this | view in thread ]
[ link to this | view in thread ]
Extortion?
Seems like the judge is also participating in extortion. "Give me the info or I will do something bad to you."
Can anyone explain this?
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re: Re: Re:
[ link to this | view in thread ]
Re: Re: Re:
[ link to this | view in thread ]
Re: Re: Re: Re:
Just get out of jury duty and stuff like that won't happen... he decided to go and break the rule/law/whatever and of course you people say nothing should happen, probably because you're the stupid folks we see walking around and driving while texting, or facebooking your kid's birth.
Plus, the judge must not know the laws you know.. because in the great US of A they tend to do that... you know... put people in power that have absolutely no clue?
[ link to this | view in thread ]
If it was only that one line then defense is grasping at straws.
[ link to this | view in thread ]
Re:
Then, you have full access to poke your nose into his account, and he has given up none of his passwords, et al.
[ link to this | view in thread ]
Then Build a New Account with (NOTHING) to show, Take the Contempt charge.
[ link to this | view in thread ]
All is FAIR in LOVE AND WAR.
[ link to this | view in thread ]
What about the civil rights of the person on trial? If Ramirez posted a comment, and others responded to him might that not affect his decision. The comments could range from "if he's been arrested, he's guilty," to "you know cops only arrest the poor and guys they don't like so they can bully them to jail."
Ramirez's rights don't exist in a vacuum, they have to be balanced with the rights of others. If the jury is tainted, how about a mistrial is declared. Then Ramirez should have to pick up the tab for defense counsel, the cost of the time of the judge, the cost of the court personnel, not to mention he should also compensate the other jurors.
What other fair remedy would you have a judge attempt to fashion in this case?
[ link to this | view in thread ]
Re: Re: Re: Re: Re:
I'd have the judge realize that all the guy did was complain to his friends that the case for which he is serving on a jury is boring. According to the article, that's all he did. He didn't discuss details of the case, nor even which case it was.
Just get out of jury duty and stuff like that won't happen...
How civically responsible of you.
[ link to this | view in thread ]
[ link to this | view in thread ]
But without seeing the actual posts we don't know if the actual case was discussed or not.
[ link to this | view in thread ]
Re:
Juries don't exist in a vacuum either, and it is naive to think that they do.
So we have a choice. One option is trying to achieve the impossible and sequester every jury. Take their phones and internet access away, don't let them watch TV, or read the newspaper. Heck, they wouldn't be able to bring along a book, because that might influence them! Make sure they know nothing about anything even remotely related to the case before selecting them, too, otherwise they'll be influenced. Basically stick them in a black box and only feed in 100% judge approved data. This way, only the judge can influence the case.
The other option is to have reasonable restrictions upon what a juror can do. Live their normal lives, just don't discuss details of the case with others. Don't watch or read news reports about this specific case. But if you want to tell your friends that you're stuck with jury duty and its mind numbingly boring, that's fine.
[ link to this | view in thread ]
Re:
Sometimes the judge must declare a mistrial.
A mistrial is certainly preferable to coercing fake “consent.”
[ link to this | view in thread ]
Can't he just say "I refuse to provide this information on the grounds that my testimony may incriminate me?"
" ...nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law..."
They're trying to circumvent due process. The judge should be suspended until such time as he has retaken a basic constitutional law course, and an ethics course as well.
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: Re: Re: Re: Re:
If he feels it's a big deal he can probably narrow his request to Facebook down to just the posts in question, rather than everything the accused has ever said or uploaded.
[ link to this | view in thread ]
Re: Re:
Not good enough. What about all the things they hear before they become jurors?? What if they have read books? What if they can recite every episode of every Law & Order series from memory?!
Surely, the only fair and equitable solution is to raise a special class of people from birth with no exposure to outside media or thought. Only then can we put cases before them and be sure that they were never "influenced" by anything or anyone.
Of course, they would be unable to speak or otherwise articulate to us their verdict, but surely that's a minor problem in the face of such an outrageous issue as jury partiality.
[ link to this | view in thread ]
Re: Re:
There is something sort of significant on facebook: Almost none of your comments are private. Unless you send a private message (and nobody would know about it), your comments are either public (completely open) or "shared" with all of your friends (and their friends if they answer and the post becomes part of their pages as well). Basically, a comment posted on your wall, on your status, whatever, is pretty much open and public. It isn't private unless he only has a single friend who has no other friends, otherwise it's likely to be in the open.
At minimum, his comment was made in a room full of his friends and their friends. At worst, it was a megaphone heard around the world.
The key issue here is "has he said anything else that wasn't noted"? The failure of the judge to deal with this matter directly is absolutely good reason for a mistrial or, if the trial completes, for appeal. Juror misbehavior is serious.
Side note: Are you and your friends having fun "insightful" buttoning each other on this one?
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re:
I prefer someone that gets out of jury duty than someone that fails horribly then bitches cause "his rights are supposedly taken away". At least it's more civically responsible than "Boo hoo. I purposely fail then I cry about it."
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re:
[ link to this | view in thread ]
I would request all information posted on facebook (and others) from the day the trial began to the day this happened. It's clearly not a stretch and anyone claiming otherwise is probably doing similar things... like someone said above and posting your kid's birth while driving and texting. Seriously.
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Re:
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Re:
[ link to this | view in thread ]
Re:
Replace that one jury and be done with it.
Unless you want to punish someone there is no good reason to strip him of his rights.
[ link to this | view in thread ]
The Difference
[ link to this | view in thread ]
Re: Re: Re: Re: Re:
> brush it away as nothing happened?
No, I'd have the judge recongize what the law requires and what limitations it places on the government and abide by it.
You seem to be suggesting that when there's something of significant concern, the government can just ignore whatever laws are in the way.
[ link to this | view in thread ]
#18 ElSteevo
How about the judge show evidence that the jury is tainted before he starts swinging the heavy hammer?
And Ramirez should foot the tab for the costs if a mistrial is declared? I see -- this will certainly encourage willing participation in the legal process. Just think how many people will stand up for jury duty if, when they "violate" an arbitrary whim, are liable for the entire cost of the trial!
+1 Troll. Well played!
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re: Re: Re:
At minimum, and probably at maximum in this case, his comment was made within a room full of people, all of whom were speaking at the time.
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Re:
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Re: Re:
He has proven that he is not responsible and most likely not impartial.
The questions before the judge are: "How irresponsible was he?" and "Was this sufficient to cause a miss trial"?
[ link to this | view in thread ]
What about the other Juror(s)
Both Defendant and prosecution/plaintiff legal teams can not be a party to this since it is not a matter for them and ONLY a matter for the court itself since it comes up against the sanctity of the court, which no matter what people get told... a jury when empanelled IS THE COURT, a judge is just an administrator or arbitrator of procedures if you will.
For the judge to order an open ended timeframe of records is very wrong though.
What a lot of people here have not picked up on, and neither did Mike, is a very relevant question about the other juror who complained.
Where did they receive the information about the posted opinion regarding the "Boring" case? Did they actually see it online? If they did two questions need to be asked. Did they see it publicly and if so WHY were they searching out the names of their other jurors on Facebook? This could be construed as someone trying to influence the jurors from inside the panel. If it was not a public world viewable post and only given to friends, that then means the jurors have friended each other which begs the question about the complaining juror and other jurors on the same panel if they were friended too.
Maybe the jury were talking amongst THEMSELVES on a private chat/discussion about how they felt about being on the panel and not about the actual case itself. We probably will never know.
[ link to this | view in thread ]
Re: Extortion?
Some people will dispute this by saying "You can always say no"...
To them I suggest doing the following.
Next time you are on a witness stand in a court and the oath or affirmation is given to you and they ask the question. "Do you swear/affirm to tell the truth the whole truth and nothing but the truth?"
Say NO... I dare you
[ link to this | view in thread ]
[ link to this | view in thread ]
Re:
In the end, the stretch seems to be your's, particularly if they couldn't just go to his FB page and read it.
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Re: Re: Re:
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re:
Really? The judge - knowing the laws in question - has ORDERED this man to give up his rights under the law or go to jail for contempt. That's not a stretch?
You aren't thinking about the precedent allowing this sets. Since our judicial system is heavily based on precedent, the slippery-slope argument is valid. If a judge can order you to give up your rights or face jail time, we would not need trials and juries anymore. They could simply force everyone they think is guilty to sign settlement agreements. They could compel people to give up evidence that incriminates them (5th amendment anyone?).
This is a huge stretch and an abuse of power.
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re:
Such as the right and lawful duty of all to REFUSE to aid, abet, fund, pay taxes to, or otherwise support, in any manner whatsoever, a society that participates in plans and preparations that are predicated on a will and capacity to use nuclear and / or other weapons of mass murder against defenseless fellow human beings??
Which, of course brings to mind the reality that jurors in some (All?) jurisdictions must sign a form stating that, to the best of their knowledge, they have NOT broken ANY LAW, that they are property owners and that they have no outstanding TAX debt.
Hmmm: He faces "Contempt of Court" charges.
My advice: Confront the Judge with the following: “Your Honour, I have reason to believe, and I do verily believe, that you, sir, have brought the Administration Of Justice Into Contempt And Disrepute ". Such aside:
******************************
Maintain The Rage!
Add your voice to reason's call.
Join the Tax Refusal.
******************************
http://www.TaxRefusal.com
************************* *****
And the related effort to wake the world:
STOP YOUR ENGINES !
http://www.StopYourEngines.com
*************************************
[ link to this | view in thread ]
Re: Consent or be shot
No, that won't do it. That's a coward's way. Do this: Tell the Judge that you choose to . . .
******************************
Maintain The Rage!
Add your voice to reason's call.
Join the Tax Refusal.
******************************
http://www.TaxRefusal.com
************************* *****
And the related effort to wake the world:
STOP YOUR ENGINES !
http://www.StopYourEngines.com
*************************************
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Re: Re:
[ link to this | view in thread ]