In one case cited by organizers of a social networking conference at the Samuelson Law, Technology & Public Policy Clinic at UC-Berkeley last Friday, a judge cracked down on a drunk driver whose passenger died in a crash after the woman’s MySpace page featured pictures of her in an outfit with shot glasses and an ad for booze. The judge sentenced the woman to five years in prison, saying the pictures showed she wasn’t remorseful, according to her lawyer.
To the surprise of some of the academics at the conference, Santa Clara Superior Court Judge Kurt Kumli said he and others on his panel came to the general consensus that the criminal justice system at the state and federal levels admits social networking evidence.
Restraining orders: No coming within 500 pixels of my Facebook wall ... after the jump.
“More often than not, if relevant, it tends to come in,” Kumli said. “However, everything that is relevant with a sufficient foundation is subject to evidence code section 352.” In other words, as with all other evidence, judges have to weigh the probative value of social networking evidence against the probability that it will be prejudicial.
In another question that came up at the conference, should defendants in domestic violence matters be able to follow their victims on Facebook without violating protective orders?
Kumli said it wouldn’t be hard to make changes to protective orders to reflect the impacts of social networking. In a domestic violence context, he said, protective orders (at least in Santa Clara) don’t necessarily spell out that defendants and probationers are barred from following their victims on Facebook or Twitter.
“If what you’re really trying to do is protect victims and put this wall up between perpetrators and victims, it seems to me it would be a fairly simple fix to include following the victims’ postings and content on social networks,” he said.
The conference, “Social Networks: Friends or Foes? Confronting Online Legal and Ethical Issues in the Age of Social Networking,” was sponsored by the Samuelson Law, Technology & Public Policy Clinic; the Berkeley Center for Law and Technology; and the Berkeley Center for Criminal Justice.
— Kate Moser