Social Media and Privacy and Public Access to Court Records:

All A-Twitter Over Nothing?

Michael JohnsonLegal Counsel Division

Minnesota State Court Administrator’s Office

Virtual Media Explosion:

• Going Viral• CSPAN on steroids

• Infinite channels, infinite speeds

Who is the Media?

• Bloggers, tweeters, web site operators (TheUpTake.org)• Florida Proposed Rule: Tie to Shield Law 90.5015

– “Professional journalist” means a person regularly engaged in collecting, photographing, recording, writing, editing, reporting, or publishing news, for gain or livelihood, who obtained the information sought while working as a salaried employee of, or independent contractor for, a newspaper, news journal, news agency, press association, wire service, radio or television station, network, or news magazine. Book authors and others who are not professional journalists, as defined in this paragraph, are not included in the provisions of this section.

Cameras in Courtroom Expansion:

• Pilot Project: Federal Civil Cases– Judge and party consent– No coverage of jurors, voir dire or sidebars– No live broadcasts– 3 year test, 14 courts, , 8 cases, 70 videos posted

Cameras in Courtroom Expansion:

• Pilot Project: Minnesota Civil Cases (Gen. R. Prac. 4)– Judge consent only– Case Type Exclusions: child custody, marriage dissolution,

juvenile proceedings, child protection proceedings, paternity proceedings, civil commitment proceedings, petitions for orders for protection, motions to suppress evidence, police informants, relocated witnesses, sex crimes, trade secrets, undercover agents, and proceedings that are not accessible to the public

– MN no coverage of jurors or any witness who objects thereto in writing or on the record before testifying

– Government shutdown hearings filmed

Cameras in Courtroom Developments:

• If you Film It, They Will Come

– CA Proposition 8 trial U.S.S.C.: no coverage• Video used for training, now requests being made for it

– Oops• Open Court Initiative

– in court disclosure of minor victim identity

Text Based Communications:

• Who Uses/May Use PCs/ PDAs in Court?– Surveys• Attorneys (73%), public (37%), media (14%), witness

(6%), jurors (2%)• Routine jury instruction (85%)• Judge’s Blog http://jurorsbehavingbadly.blogspot.com• mistrial in a felony domestic assault case due to juror

use of the internet to look up definitions• Potential juror discussing case on Facebook• Tampering, intimidation concerns

Text Based Communications:

• Who Uses/May Use PCs/ PDAs in Court?– Absolute ban?• Tweet = “Broadcasting” prohibited by Fed. R. Crim. P.

53 (Judge Clay Land, November 2009, Georgia)

– Attorney exception?– Media exception?• Who is media? Bloggers, tweeters, web site operators?

– Gallery/Public Exception?• Permit unless disruptive (New Hampshire)

Text Based Communications:

• Who Uses/May Use PCs/ PDAs in Court?– Witness Use– Juror Use; Unplugging the Wired Juror• Deliberation ban; Pretrial, recess ban• Alienating jurors• One tweet every three minutes re jury duty

Impact of Social Media Databases

• Twitter Archives

• Facebook Readily Accessible to Anyone and Forever?

• Capable of Producing Avalanche of Evidence

Social Media Avalanche of Evidence

• Juror Voir Dire/Misconduct Challenges– One tweet every three minutes re: jury duty

• Judge Removal/Recusal• Intimidation/bullying– Witnesses– Jurors– judges

Social Media Avalanche of Evidence

• Require Redacting? Whose Burden? Initials?• Format: Pro Se Parties Attempting to Admit

Facebook Pages, Tweets, Videos and Photos Right From Their PC/PDA

• Logistics: Preserve and Provide Public Access– Copies?– Viewing?

Updating Access Policies

• Format based approach (e.g. no public access to e-mail)– Expand to other social media?– Convert to content-based approach

• Content-based approach – Must be related to court business– Impact of “personal use” policies• e-mail to family member is not a court record

Updating Access Policies

• Format or content based public access exclusions not absolute access bar:– publicly-accessible discipline records• compromising photo, office romance gone sour,

uncomplimentary remark about a colleague or party

– Lawsuit may generate discoverable and admissible (and therefore publicly-accessible) records