Sony v. Hotz – Judge Grants Sony’s Request for Information about Visitors to Hotz’s Website

This is not necessarily a jury/social networking issue, but I’ve been following the Sony v. Hotz case and find the most recent turn of events very interesting.  

In a continuing streak of misfortune for hacker George ‘Geohot’ Hotz, the guy who originally hacked the iPhone, a magistrate judge in California federal court has now granted Sony’s subpoena for information regarding visitors to the website of defendant Hotz.

Back in January, Sony brought a lawsuit against Hotz for jailbreaking Sony’s PlayStation 3 console.  More recently, the district court judge in the case granted Sony’s discovery request for access to Hotz’s computer hard drives.

Sony contends that the subpoena is not overly broad, but the actual wording seems broad indeed:

“all server logs, IP address logs, account information, account access records and application or registration forms [and] any other identifying information corresponding to persons or computers who have accessed or downloaded files hosted using your service and associated with the http://www.geohot.com website, including but not limited to the geohot.com/jailbreak.zip file.”

The breadth and potential unfairness of the subpoena has not been lost on commentators.  A recent article on CrunchGear.com points out that just about “everyone who visited GeoHot’s site (or his blog at Blogspot) is subject to involvement in this case.” And RedmondPie.com has echoed those sentiments.

The problem gets worse, though.  Under the magistrate judge’s ruling, Sony will not only have access to information retained by Bluehost, which was hosting Hotz website when the jailbreak code was posted.  Moreover, the court has also granted the PlayStation 3 maker access to Hotz’s account information with YouTube, Twitter, and Google.

RedmondPie.com suggests, “at this rate, we’re all going to get dragged into it for having the audacity to watch a YouTube video or following the wrong person on Twitter.”

The Electronic Frontier Foundation has also found the breadth of the subpoena disturbing.  In a letter to the magistrate judge, the EFF argues that “the discovery seeks information about non-parties [and] the relationship to the narrow jurisdictional question at issue seem tenuous at best.”

Meanwhile, Hotz has apparently been on vacation in South America and seems to be enjoying his depiction as an “international fugitive.”

Christopher Dize graduated summa cum laude from Salisbury University.  He will receive his J.D. from Seton Hall University School of Law in 2011.  After graduation, Chris will clerk for a judge of the Superior Court of New Jersey, Appellate Division.  He has interned with judges of the United States District Court for the District of New Jersey.  Chris currently works for a litigation firm in New Jersey.

Detroit Juror Misuses Facebook . . . But How Over-the-Top is this News Report?!

Here’s a news report about the juror in Michigan that wrote on her Facebook page that she was “actually excited for jury duty tomorrow [because it was] gonna be fun to tell the defendant they’re GUILTY.”  This was during a criminal trial for resisting arrest.

The judge did not give the juror any jail time.  But she was fined $250, which is a lot for a 20 year old attending community college, assuming the report is accurate on that point.

The judge also made her write a 5-page essay on the Sixth Amendment.  With regard to the essay, and I say this as a third year law student who has survived a 5-credit constitutional law course . . . aarrggghhhhhh . . . .

So that’s the story.  It highlights the current problems and troubles that occur when jurors misuse online social networking media, such as Facebook, Twitter, MySpace, etc.   And that’s pretty much what I’ve been blogging about on this site.

The facts of this particular case are not unusual by any means.  Here’s some others.  And I could probably list dozens of similar incidents across the country within the last 10 years or so.

Over-the-Top media coverage?

What is unique about the story, however, is the out-of-proportion news reporting in this video. I really doubt the woman was crouched in sadistic anticipation of the verdict.  Of course, I could be wrong and, regardless, she shouldn’t have prematurely drawn a conclusion.

The post is clearly facetious.  But from the way these yahoos are talking about it, you’d think this juror had single-handedly brought down the entire judicial process.  Seriously, I expected a mob with pitchforks and torches to come marching down the street to get her.

Check out this guy Charlie Langton at .45 seconds.  Is he a distant relative of Rodney Dangerfield? Say it, don’t spray it, pal! And try not to put out an eye with the arm waving.

And then you’ve got the crypt-keeper with the microphone banging on the woman’s front door!  Seriously?  Are you Walter Cronkite? You had to go to her house?   It wasn’t good enough to broadcast her shame from the courtroom? You had to make a house-call?

The Real Problem

Now, don’t get me wrong.  Yes, the juror violated her duty.  And, yes, she was punished. But do we really need to kick her door in and take a statement?

There’s nothing wrong with reporting the story. It was perfectly newsworthy, and it’s the same kind of thing I’ve been talking about on Jury Trials and Social Networks.  But the report goes over the top and in the process misses the bigger picture.

Jurors inappropriately posting trial updates on Facebook isn’t new and it isn’t unusual.  And this particular juror’s misconduct isn’t as sensational as these yoyos make it out to be. Her particular misconduct is part of a larger problem that courts are facing.

This report didn’t even tell us that the case was merely symptomatic of a much greater trend of misconduct among jurors who use digital social networking media.

Can Barry Bonds Get an “Impartial” Jury?

Right now, Judge Susan Illston, the well-respected judge presiding over Barry Bonds’ perjury case, is considering whether to have an anonymous jury.  This would be a drastic move in a society that values open court proceedings, but problems with the jury are not likely to end there.

According to an article last week on TechDirt.com, the attorneys for Barry Bonds are requesting a preliminary jury instructions that would specifically order jurors not to discuss the all-time home run record holder’s case on online social networking media.

The jury instructions that Bonds’ attorneys have proposed single out several services where abuse would be most likely to occur:

“[Y]ou must not communicate with anyone about the case by any other means, direct or indirect, such as: a writing, the telephone, e-mail, Facebook, MySpace, Twitter, instant messaging, Blackberry messaging, I-Phones, I-Touches, Google, Yahoo, any internet search engine or any other form of electronic communication for any purpose whatsoever.”

Of course, this type of explicit jury charge is not completely new.  There has been a consistent movement in many jurisdictions to adopt more specific language, naming sites such as Facebook, Twitter, and MySpace, sites where jurors are often tempted to discuss or post updates about their case.

However, while many courts use language in their pattern jury instructions similar to the language Bonds’ attorneys are requesting, the Northern District of California, where the case is being held, has not yet gone to a narrower instruction.  The California federal court follows the model jury instruction of the Ninth Circuit, which provides a general recitation of prohibited improper contact:

“Do not communicate with anyone in any way and do not let anyone else communicate with you in any way about the merits of the case or anything to do with it.  This includes discussing the case in person, in writing, by phone or electronic means, via email, text messaging, or any Internet chat room, blog, website or other feature.”

The baseball player’s widespread popularity has also raised concern about court management.  There is an official USA v. Bonds Guide for Journalists.  And to deal with the potential flood of media and fan inquires, the district court has set up a website where the public and media can access all court documents, including those dealing with evidentiary motions.

In the past several weeks, it has been widely reported that Bonds’ attorneys are attempting to exclude all sorts of evidence.  Last week, attorneys successfully barred 2007 Playboy photos of Bonds’ ex-mistress, although Bonds lost a motion to keep the article and the ex-mistress’s testimony out.

While the purpose of excluding evidence is to prevent the jury from hearing and considering it, all motions, responses and decisions are being made available on the court’s USA v. Bonds page.  Incidentally, the court’s Bonds page comes up first in a Google search for “USA v. Bonds.”

With a computer and an Internet connection, any overly curious juror can do his or her own research on the case, notwithstanding the evidence properly admitted or excluded from trial.  In light of such easy and swift digital access, it is easy to understand the greater specificity of Internet-related jury restrictions that Bonds’ attorneys are requesting.

High-profile cases such as USA v. Bonds highlight the impact that Internet and social media are having on the ability to get an impartial jury and a fair trial.  However, as Caren Myers Morrison has pointed out in her article, ”Jury 2.0,” forthcoming in the Hastings Law Review, the idea of “impartiality” does not necessarily require an ignorant or passive jury.

Professor Morrison, who teaches law at Georgia State University, points out that in the Nineteenth Century, the meaning of an impartial jury was more open to debate.  To say a juror was “impartial” simply meant that he or she had no manifest conflicts of interest, i.e. the juror was not family, friend, or enemy of the parties.  And it was not uncommon for jurors to have personal knowledge of the events and people involved.

As this country moved into the Twentieth Century, the idea that jurors should be ignorant of the facts and parties became solidified.  As a result, today’s jurors are dismissed with regularity for simply having familiarity or acquaintance with a defendant.

With Bonds’ widespread popularity, the publicity of his case, and the swift ease of online research, all this begs the question:  Can Bonds get an “impartial” jury, especially in San Francisco where Bonds played for 14 years, breaking numerous records and garnering worldwide fame?  Or does the jury system need to bend back in time to give the home run hitter his day in court?

Voir dire in the Bonds case – the process by which the attorneys question potential jurors to select a jury – is set to begin on Monday, March 21, 2011.

Christopher Dize is a third year law student at Seton Hall Law. After graduation, he will clerk for a judge of the Superior Court of New Jersey, Appellate Division. He has interned in the United States District Court and works for a litigation firm in New Jersey.

Charlie Sheen Selected for Jury Duty . . .

Okay, Charlie Sheen has not been selected for jury duty.  I made that part up.

But could you imagine that guy in a jury room talking about warlocks and prostitutes?  Twitter and Facebook updates about jury deliberations would be the least of the judge’s problems!

So, while his insanity has nothing to do with juries or social media, the drama is too funny to pass up.

A couple days ago, he received a letter from the attorneys representing Warner Bros, the producer of his now former television show Two and a Half Men.

New Media: A Typology of Technology

Last August, the Committee of the Conference of Court Public Information Officers issued a report on the impact that “new media” is having on the court system.  The report makes a number of interesting observations and findings, and I definitely encourage anyone interested in this topic at least to read the Executive Summary.

The full report is packed with useful and interesting facts and statistics.

Amongother things, the report offers a breakdown of the types of new media that are affecting the legal system.  The report etches out seven different categories of technologies that are necessary to understand in discussing current issues.

WSJ.com article – “Searching for Details Online, Lawyers Facebook the Jury: Attorneys Seek Cues on Potential Jurors in Networking Sites”

This article offers some insight into how attorneys use online social networking media to investigate whether potential jurors are suitable to sit on the jury.

“Prosecution and defense lawyers are scouring the site for personal details about members of the jury pool that could signal which side they might sympathize with during a trial. They consider what potential jurors watch on television, their interests and hobbies, and how religious they are.

“Paul Kiesel, a plaintiffs’ lawyer in Beverly Hills, Calif., said his firm ran searches of social-networking sites during the jury-selection process in a recent sex-abuse case involving a Catholic priest. The case was settled, but Mr. Kiesel said the information would have proved invaluable.

“‘We could glean whether someone was identified with a religion, and get a sense of how devout they seemed to be,’ he said. ‘It’s a waterfall of information, compared to the pinhole view you used to get.’”

Do Lawyers Have an Ethical Duty to Google the Jury Pool?

Today, attorneys are frequently using social networking media to investigate potential jurors before going to trial.

Under the court rules in most states, an attorney can request a voir dire list from the clerk of the court several days in advance of actual jury selection.

Scientific American article – “The YouTube Cure: How Social Media Shapes Medical Practice”

Lawyers and the judiciary may not be the only ones struggling to keep up with the changing landscape of our times.  In the medical field, doctors are discovering that online social media is driving a demand for unproven treatments.

Judges and Courts on Social Media? – Report Released on New Media’s Impact on the Judiciary

The Conference of Court Public Information Officers conducted a first-of-its-kind nationwide survey on new media and the courts - ”New Media and the Courts: The Current Status and A Look at the Future.”

The 2010 report shows that state judges and court staff recognize the potential impact of social media on the administration of justice and are taking a close look at both the ramifications and opportunities.

More than a third of state court judges and magistrates responding to the survey said they have used social media either in their personal or professional lives.

But the survey also found that nearly half of the judges who responded disagreed when asked if a judge —in a professional capacity—could participate in social networking sites without compromising ethical codes of conduct.

“Are Juries Fair?” – Empirical Study of Jurors’ Internet Use in England

A recent large-scale empirical study was done in England by Professor Cheryl Thomas, University College London.  This is probably the largest study done so far on jurors’ use of internet.

The study showed that in high profile cases 12% of jurors had looked for information on the internet during the trial.  It also showed that over 25% of jurors actually saw reports online during the trial, presumably whether they were looking or not.

The figures were a bit lower for “standard cases.”  In these trials, only 5% of jurors said that they looked for information and 13% said they saw reports online.

The report also showed that younger jurors were not necessarily more likely to search the internet for information than older jurors.