Facebook, MySpace, The Joys and Dangers of Internet Social

Facebook, MySpace, The Joys and Dangers of Internet Social
Networks and How to Use Them as Litigation Tools
Kelly Scribner, Assistant National Litigation Support
Administrator, Office of Defender Services, Training Branch,
Oakland, CA
Alex Roberts, National Litigation Support Paralegal, Office of
Defender Services, Training Branch, Oakland, CA
Rich Kammen, Esq., Kammen & Associates, Indianapolis, IN
U.S. Department of Justice
Criminal Division
Washington, D.C. 20530
CRM-200900732F
MAR
3 2010
Mr. James Tucker
Mr. Shane Witnov
Electronic Frontier Foundation
454 Shotwell Street
San Francisco, CA 94110
Dear Messrs Tucker and Witnov:
This is an interim response to your request dated October 6, 2009 for access to records
concerning "use of social networking websites (including, but not limited to Facebook, MySpace,
Twitter, Flickr and other online social media) for investigative (criminal or otherwise) or data
gathering purposes created since January 2003, including, but not limited to:
1) documents that contain information on the use of "fake identities" to "trick" users "into
accepting a [government] official as friend" or otherwise provide information to he government
as described in the Boston Globe article quoted above;
2) guides, manuals, policy statements, memoranda, presentations, or other materials
explaining how government agents should collect information on social networking websites:
3) guides, manuals, policy statements, memoranda, presentations, or other materials,
detailing how or when government agents may collect information through social networking
websites;
4) guides, manuals, policy statements, memoranda, presentations and other materials
detailing what procedures government agents must follow to collect information through socialnetworking websites;
5) guides, manuals, policy statements, memorandum, presentations, agreements (both
formal and informal) with social-networking companies, or other materials relating to privileged
user access by the Criminal Division to the social networking websites;
6) guides, manuals, memoranda, presentations or other materials for using any
visualization programs, data analysis programs or tools used to analyze data gathered from social
networks;
7) contracts, requests for proposals, or purchase orders for any visualization programs,
data analysis programs or tools used to analyze data gathered from social networks.
8) guides, manuals, policy statements, memoranda, presentations, or other materials
describing how information collected from social-networking websites is retained in government
databases or shared with other government agencies."
While processing your request, we located one record totaling 33 pages. After careful
review of this document we determined to release this item in part. We are withholding portions
of the record pursuant to the exemption in 5 U.S.C. 552(b)(6)which permits the withholding of
personnel and medical files and similar files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy. The withheld material consists of work telephone
numbers and e-mail addresses of DOJ attorneys.
We will continue to search for any additional documents that may be responsive to your
request. We estimate that it make take approximately fourteen days to complete the processing
of your request.
Although your FOIA request is the subject of litigation, I am nonetheless required by
regulation to inform you that you that you have a right to an to an administrative appeal of this
partial denial of your request. Your appeal should be addressed to: The Office of Information
Policy, United States Department of Justice, 1425 New York Ave., NW, Suite 11050,
Washington, DC 20530-0001. Both the envelope and the letter should be clearly marked with
the legend "FOIA Appeal." Department regulations provide that such appeals must be received
by the Office of Information Policy within sixty days of the date of this letter.
Sincerely,
Rena Y. Kim, Chief
Freedom of Information/Privacy Act Unit
Office of Enforcement Operations
Criminal Division
Obtaining and Using Evidence from
Social Networking Sites
Facebook, MySpace, Linkedln, and More
John Lynch
Deputy Chief, Computer Crime
Computer Crime & Intellectual Property Section
Jenny Ellickson
Trial Attorney
Computer Crime & Intellectual Property Section
AGENDA
SSSSSS^'
Introduction to Social Networking Sites
Overview of Key Social Networking Sites
Additional Legal and Practical Issues
Overview of Key Social Networking Sites
Additional Legal and Practical Issues
li, Compe
urt Crime& Intellectual Property Section
Introduction to Social Networking
OF ONLINE SOCIAL NETWORKS
1997
SixDegrees.com
2003
Friendster, Linkedln
2004
MySpace
2005
Facebook
2008
Twitter
li, Computer Crime & Intellectual Property Section
Introduction to Social Networking
POPULAR SOCIAL NETWORKS
Worldwide: Facebook
U.S. and Canada: MySpace, Linkedln, Twitter
Europe: MySpace, Twitter, Hi5, V Kontakte
Latin America: Hi5, Orkut, Tagged
Asia: QQ, Friendster, Xiaonei, Orkut, Mixi, Hi5
Middle East and Africa: Maktoob, Hi5
li, Computer Crime & Intellectual Property Section
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li, Computer Crime & Intellectual Property Section
Introduction to Social Networking
POPULARITY IN THE UNITED STATES
Most-visited websites in the U-S. (August 2009)
1. Google
2. Yahoo
3. Facebook
4. YouTube
5. MySpace
•• •
13. Twitter
•
•
•
27. Linkedln
Source: Alexa.com - August 12, 2009 list of Top 100 websites in United States.
li, Computer Crime & Intellectual Property Section
Introduction to Social Networking
THE BASICS
Most
•
•
•
•
•
social-networking sites allow users to:
Create personal profiles
Write status updates or blog entries
Post photographs, videos, and audio clips
Send and receive private messages
Link to the pages of others (i.e., "friends")
How
•
•
•
can LE obtain data from these sites?
Some info may be public
UseijECPA to get info from providers 0
Undercover operations? ( ?
li, Computer Crime & Intellectual Property Section
Introduction to Social Networking
UTILITY IN CRIMINAL CASES
Evidence from social-networking sites can \ J
Reveal personal communications
Establish motives and personal relationships
Provide location information
Prove and disprove alibis
Establish crime or criminal enterprise
Also: instrumentalities or fruits of crime.
AGENDA
Introduction to Social Networking
Additional Legal and Practical Issues
Overview of Key Social Networking Sites
FACEBOOK
Founded in 2004, primarily catering to students
Now over 250m active members worldwide
Over 10b photos in Oct 2008; adds over 1b monthly
Applications run on Facebook platform
True names encouraged but not guaranteed
Privacy model is highly granular; present different
information to different groups or individual users
Messaging includes mail, real-time chat, "wall"
Now used in private background checks
Koobface - virus/worm vector
li, Computer Crime & Intellectual Property Section
I
Overview of Key Social Networking Sites
FACEBOOK
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li, Computer Crime & Intellectual Property Section
Overview of Key Social Networking Sites
FACEBOOK
Computer Crime & Intellectual Property Section
Overview of Key Social Networking Sites
FACEBOOK
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li, Computer Crime & Intellectual Property Section
Overview of Key Social Networking Sites
GETTING INFO FROM FACEBOOK
Data is organized by user ID or group ID
Standard data productions (per LE guide):
Neoprint, Photoprint, User Contact Info,
Group Contact Info, IP Logs
HOWEVER, Facebook has other data available.
Often cooperative with emergency requests.
7
li, Computer Crime & Intellectual Property Section
Overview of Key Social Networking Sites
MYSPACE
Founded 2003, now owned by Fox Interactive Media
2006: Most popular SN; passed by Facebook in 2008
Currently tens of millions of active users monthly
True names less encouraged than Facebook
Messaging through messages, chat, friend updates
Application platform rolled out early 2008
Young user base, history of child safety concerns
Privacy is currently less granular than Facebook
li, Computer Crime & Intellectual Property Section
Overview of Key Social Networking Sites
MYSPACE
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li, Computer Crime & Intellectual Property Section
Overview of Key Social Networking Sites
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li, Computer Crime & Intellectual Property Section
Overview of Key Social Networking Sites
GETTING INFO FROM MYSPACE
Many profiles have public content.
Data is organized by FriendID -f see LE guide.
MySpace requires a search warrant for private
messages/bulletins less than 181 days old
• Also considers friend lists to be stored content'
Data retention times
User info and stored files - indefinitely
5
^
IP logs, info for deleted accounts - 1 year J
/
li, Computer Crime & Intellectual Property Section
Market leader in "micro-blogging"
Began in mid-2006 as "status message" service
Ubiquity and ease of updating, but limited space
Breaking news, real-time updates: USAir, Iran
Most multimedia handled by 3d party links
Simplified privacy model: updates public or private
Direct messages are private; sender can delete
Short URLs used to serve malicious links and code
li, Computer Crime & Intellectual Property Section
Overview of Key Social Networking Sites
TWITTER
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li, Computer Crime & Intellectual Property Section
Overview of Key Social Networking Sites
GETTING INFO FROM TWITTER
The good news
• Most Twitter content is public
• Private messages kept until user deletes them
The bad news
• No contact phone number
• Only retain last login IP ^
• Will not preserve data without legal process
• Stated policy of producing data only in \
response to legal process (i.e., no 2702) J
• No Law Enforcement Guide
\
li, Computer Crime & Intellectual Property Section
Overview of Key Social Networking Sites
LINKEDIN
Business-focused with enforced limits to interaction
Profiles focused on education and work experience
Use for criminal communications appears limited
But can be used to identify experts
Can check background of defense experts
Privacy model similar to Facebook
Profile information is not checked for reliability
li, Computer Crime & Intellectual Property Section
Overview of Key Social Networking Sites
LINKEDIN
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Current
Past
President at United States of America
US Senator at US Senate (tL-D)
Senior Lecturer in Law at University of Chicago
Law School
State Senator at Illinois State Senate
Education
Connections
Industry
Websites
Harvard University
Columbia University in the City of New York
Occidental College
(p?l 500+connections
Government Administration
• White House website
• Join Barsens Linkedln Group
. MyRSSfeed
©
•
Public profile powered by:
y » Page »
Linked | | |
Create a public profile: Sign In or Join How
View Barack Obama's full profile:
• See who you and Barack Obama know In
common
• Get introduced to Barack Obama
• Contact Baractc O&ama directly
View Full Profile.
j
Name Search:
Search for people you knowfrom over 40 million
professionals already on Linkedln.
Done
@ Internet | Protected Mode: Off
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-!l
Introduction to Social Networking
Overview of Key Social Networking Sites
Social networking sites increasingly adopting
federated identity schemes
o OpenID, Facebook Connect
Facebook, MySpace, Yahoo!, and Google actas1
iderrtityja^
mode
Example: A user can log in to a Facebook account
using Google credentials
o After a link is established between two accounts, Google
will check and vouch for identity of its user
o Authentication information split from activity information
o In turn, a Facebook login may be used to authenticate to
sjtesjusiag "Facebook Connect"
/
If^ttn^tion^ is necessary, must determine identit
provider - not simply the domain.
-
Computer Crime & Intellectual Property Section
a
Introduction to Social Networking
TERMS OF SERVICE I PRIVACY POLICIES
Social networks have extensive terms of
service and privacy policies
J
o Most permit^^^e
LE
^^
o All specify exceptions to respond to legal process
and protect service against fraud/damage
^
can failure to follow TOS
render access unauthorized under 1030?
U.S. v: Drew-
o Employment policy cases tend to say yes
o But concerns that transforms TOS into private
criminal code for site misconduct
li, Computer Crime & Intellectual Property Section
Legal and Practical Issues
DOES THEPPA APPLY?
Growth of social networks raises questions
of breadth of PPA
o Is Facebook/Twitter a "similar form of
communication" to a newspaper, book,
broadcast? (Ashton Kutcher? CNNbrk? Iran?)
o No easy answers, but look to intent to \ <?
communicate news to sizable audience
o In many cases, Guest v. Le/s rule will be
sufficient; CCIPS can help with analysis
Congress continues to examine media shield
li, Computer Crime & Intellectual Property Section
Legal and Practical Issues
UNDERCOVER OPERATIONS
n\
Why go undercover on Facebook, MySpace,
etc?
• Communicate with suspects/targets
• Gain access to non-public info
• Map social relationships/networks
Undercover operations after U.S. v. Drew
If agents violate terms of service, is thaiV-x
"otherwise illegal activity"?
li, Computer Crime & Intellectual Property Section
Legal and Practical Issues
WITNESSES & SOCIAL NETWORKS
\
Many witnesses have social-networking pages V
• Valuable source of info on defense witnesses
• Potential pitfalls for government witnesses
Knowledge is power
• Research all witnesses on social-networking sites
• Discovery obligations?
Advise your witnesses:
• Not to discuss cases on social-networking sites
• To think carefully about what they post
J
li, Computer Crime & Intellectual Property Section
Legal and Practical Issues
OTHER COURTROOM ISSUES
Social networking and the courtroom
can be a dangerous combination
• Use caution in "friending" judges, defense counsel
• Warn jurors about social-networking sites
Social networking + mobile devices =
real-time updates on courtroom events
li, Computer Crime & Intellectual Property Section
C C I P S Duty Line: 2 0 2 - 5 1 4 - 1 0 2 6
John Lynch
B6
Jenny Ellickson
Q-
•
•
•
•
U.S. v. Voneida, 2009 WL 2038633 (2009)
U.S. v. Scheuerman, 2009 CAAF LEXIS 812, 7-8 (C.A.A.F. 2009)
U.S. v. Drew, 259 F.R.D. 449 (CDCA 2009)
U.S. v. Suarez, 2010 WL 4226524 (2010)
DEPRECATED
The author's
user ID.
The author of the tweet. This
embedded object can get out of sync.
Number of tweets
this user has.
Whether this user has geo
enabled (http://bit.ly/4pFY77).
The geo tag on this tweet in
GeoJSON (http://bit.ly/b8L1Cp).
The tweet's unique ID. These
IDs are roughly sorted &
developers should treat them
as opaque (http://bit.ly/dCkppc).
Text of the tweet.
Consecutive duplicate tweets
are rejected. 140 character
max (http://bit.ly/4ud3he).
{"id"=>12296272736,
"text"=>
"An early look at Annotations:
http://groups.google.com/group/twitter-api-announce/browse_thread/thread/fa5da2608865453",
Tweet's
"created_at"=>"Fri Apr 16 17:55:46 +0000 2010",
creation
"in_reply_to_user_id"=>nil,
date.
The ID of an existing tweet that
"in_reply_to_screen_name"=>nil,
this tweet is in reply to. Won't
"in_reply_to_status_id"=>nil
be set unless the author of the
The screen name &
"favorited"=>false,
referenced tweet is mentioned.
user
ID
of
replied
to
Truncated to 140
"truncated"=>false,
tweet author.
characters. Only
"user"=>
The author's
possible
from
SMS.
{"id"=>6253282,
user name.
The author's
"screen_name"=>"twitterapi",
biography.
The
author's
"name"=>"Twitter API",
screen name.
"description"=>
"The Real Twitter API. I tweet about API changes, service issues and
happily answer questions about Twitter and our API. Don't get an answer? It's on my website.",
The author's
"url"=>"http://apiwiki.twitter.com",
URL.
"location"=>"San Francisco, CA",
The author's "location". This is a free-form text field, and
"profile_background_color"=>"c1dfee",
there are no guarantees on whether it can be geocoded.
"profile_background_image_url"=>
"http://a3.twimg.com/profile_background_images/59931895/twitterapi-background-new.png",
Rendering information
"profile_background_tile"=>false,
for the author. Colors
"profile_image_url"=>"http://a3.twimg.com/profile_images/689684365/api_normal.png",
are encoded in hex
"profile_link_color"=>"0000ff",
values (RGB).
"profile_sidebar_border_color"=>"87bc44",
The creation date
"profile_sidebar_fill_color"=>"e0ff92",
for this account.
Whether this account has
"profile_text_color"=>"000000",
contributors enabled
"created_at"=>"Wed May 23 06:01:13 +0000 2007",
(http://bit.ly/50npuu).
"contributors_enabled"=>true,
Number of
"favourites_count"=>1,
favorites this
Number of
"statuses_count"=>1628,
user has.
users this user
"friends_count"=>13,
is following.
The timezone and offset
"time_zone"=>"Pacific Time (US & Canada)",
(in seconds) for this user.
"utc_offset"=>-28800,
"lang"=>"en",
The user's selected
"protected"=>false,
language.
"followers_count"=>100581,
"geo_enabled"=>true,
Whether this user is protected
"notifications"=>false,
DEPRECATED
or not. If the user is protected,
Number of
"following"=>true,
in this context
then this tweet is not visible
followers for
"verified"=>true},
Whether this user
except to "friends".
this user.
"contributors"=>[3191321],
has a verified badge.
"geo"=>nil,
"coordinates"=>nil,
DEPRECATED
The contributors' (if any) user
"place"=>
The place ID
IDs (http://bit.ly/50npuu).
{"id"=>"2b6ff8c22edd9576",
"url"=>"http://api.twitter.com/1/geo/id/2b6ff8c22edd9576.json",
The URL to fetch a detailed
"name"=>"SoMa",
The printable names of this place
polygon for this place
"full_name"=>"SoMa, San Francisco",
"place_type"=>"neighborhood",
The type of this
"country_code"=>"US",
place - can be a
"country"=>"The United States of America",
The place associated with this
"neighborhood"
"bounding_box"=>
Tweet (http://bit.ly/b8L1Cp).
or "city"
{"coordinates"=>
[[[-122.42284884, 37.76893497],
[-122.3964, 37.76893497],
The country this place is in
[-122.3964, 37.78752897],
[-122.42284884, 37.78752897]]],
"type"=>"Polygon"}},
"source"=>"web"}
The application
The bounding
that sent this
box for this
Map of a Twitter Status Object
tweet
place
Raffi Krikorian <[email protected]>
18 April 2010
THE PHILADELPHIA BAR ASSOCIATION
PROFESSIONAL GUIDANCE COMMITTEE
Opinion 2009-02
(March 2009)
The inquirer deposed an 18 year old woman (the “witness”). The witness is not a party
to the litigation, nor is she represented. Her testimony is helpful to the party adverse to
the inquirer’s client.
During the course of the deposition, the witness revealed that she has “Facebook” and
“Myspace” accounts. Having such accounts permits a user like the witness to create
personal “pages” on which he or she posts information on any topic, sometimes
including highly personal information. Access to the pages of the user is limited to
persons who obtain the user’s permission, which permission is obtained after the user is
approached on line by the person seeking access. The user can grant access to his or
her page with almost no information about the person seeking access, or can ask for
detailed information about the person seeking access before deciding whether to allow
access.
The inquirer believes that the pages maintained by the witness may contain information
relevant to the matter in which the witness was deposed, and that could be used to
impeach the witness’s testimony should she testify at trial. The inquirer did not ask the
witness to reveal the contents of her pages, either by permitting access to them on line
or otherwise. He has, however, either himself or through agents, visited Facebook and
Myspace and attempted to access both accounts. When that was done, it was found
that access to the pages can be obtained only by the witness’s permission, as
discussed in detail above.
The inquirer states that based on what he saw in trying to access the pages, he has
determined that the witness tends to allow access to anyone who asks (although it is
not clear how he could know that), and states that he does not know if the witness
would allow access to him if he asked her directly to do so.
The inquirer proposes to ask a third person, someone whose name the witness will not
recognize, to go to the Facebook and Myspace websites, contact the witness and seek
to “friend” her, to obtain access to the information on the pages. The third person
would state only truthful information, for example, his or her true name, but would not
reveal that he or she is affiliated with the lawyer or the true purpose for which he or she
is seeking access, namely, to provide the information posted on the pages to a lawyer
for possible use antagonistic to the witness. If the witness allows access, the third
person would then provide the information posted on the pages to the inquirer who
would evaluate it for possible use in the litigation.
©2009 The Philadelphia Bar Association
All Rights Reserved
1
The inquirer asks the Committee’s view as to whether the proposed course of conduct
is permissible under the Rules of Professional Conduct, and whether he may use the
information obtained from the pages if access is allowed.
Several Pennsylvania Rules of Professional Conduct (the “Rules”) are implicated
in this inquiry.
Rule 5.3. Responsibilities Regarding Nonlawyer Assistants provides in part that,
With respect to a nonlawyer employed or retained by or associated with a lawyer:…
(c) a lawyer shall be responsible for conduct of such a person that would be a violation
of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct,
ratifies the conduct involved; …
Since the proposed course of conduct involves a third person, the first issue that must
be addressed is the degree to which the lawyer is responsible under the Rules for the
conduct of that third person. The fact that the actual interaction with the witness would
be undertaken by a third party who, the committee assumes, is not a lawyer does not
insulate the inquirer from ethical responsibility for the conduct.
The Committee cannot say that the lawyer is literally “ordering” the conduct that would
be done by the third person. That might depend on whether the inquirer’s relationship
with the third person is such that he might require such conduct. But the inquirer plainly
is procuring the conduct, and, if it were undertaken, would be ratifying it with full
knowledge of its propriety or lack thereof, as evidenced by the fact that he wisely is
seeking guidance from this Committee. Therefore, he is responsible for the conduct
under the Rules even if he is not himself engaging in the actual conduct that may violate
a rule. (Of course, if the third party is also a lawyer in the inquirer’s firm, then that
lawyer’s conduct would itself be subject to the Rules, and the inquirer would also be
responsible for the third party’s conduct under Rule 5.1, dealing with Responsibilities of
Partners, Managers and Supervisory Lawyers.)
Rule 8.4. Misconduct provides in part that,
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or
induce another to do so, or do so through the acts of another; …
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; …
©2009 The Philadelphia Bar Association
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Turning to the ethical substance of the inquiry, the Committee believes that the
proposed course of conduct contemplated by the inquirer would violate Rule 8.4(c)
because the planned communication by the third party with the witness is
deceptive. It omits a highly material fact, namely, that the third party who asks to
be allowed access to the witness’s pages is doing so only because he or she is
intent on obtaining information and sharing it with a lawyer for use in a lawsuit to
impeach the testimony of the witness. The omission would purposefully conceal
that fact from the witness for the purpose of inducing the witness to allow access,
when she may not do so if she knew the third person was associated with the
inquirer and the true purpose of the access was to obtain information for the
purpose of impeaching her testimony.
The fact that the inquirer asserts he does not know if the witness would permit
access to him if he simply asked in forthright fashion does not remove the
deception. The inquirer could test that by simply asking the witness forthrightly for
access. That would not be deceptive and would of course be permissible.
Plainly, the reason for not doing so is that the inquirer is not sure that she will
allow access and wants to adopt an approach that will deal with her possible
refusal by deceiving her from the outset. In short, in the Committee’s view, the
possibility that the deception might not be necessary to obtain access does not
excuse it.
The possibility or even the certainty that the witness would permit access to her pages
to a person not associated with the inquirer who provided no more identifying
information than would be provided by the third person associated with the lawyer does
not change the Committee’s conclusion. Even if, by allowing virtually all would-be
“friends” onto her FaceBook and MySpace pages, the witness is exposing herself to
risks like that in this case, excusing the deceit on that basis would be improper.
Deception is deception, regardless of the victim’s wariness in her interactions on the
internet and susceptibility to being deceived. The fact that access to the pages may
readily be obtained by others who either are or are not deceiving the witness, and that
the witness is perhaps insufficiently wary of deceit by unknown internet users, does not
mean that deception at the direction of the inquirer is ethical.
The inquirer has suggested that his proposed conduct is similar to the common -and ethical -- practice of videotaping the public conduct of a plaintiff in a personal injury
case to show that he or she is capable of performing physical acts he claims his injury
prevents. The Committee disagrees. In the video situation, the videographer simply
follows the subject and films him as he presents himself to the public. The
videographer does not have to ask to enter a private area to make the video. If he did,
then similar issues would be confronted, as for example, if the videographer took a
hidden camera and gained access to the inside of a house to make a video by
presenting himself as a utility worker.
©2009 The Philadelphia Bar Association
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Rule 4.1. Truthfulness in Statements to Others provides in part that,
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; …
The Committee believes that in addition to violating Rule 8.4c, the proposed conduct
constitutes the making of a false statement of material fact to the witness and therefore
violates Rule 4.1 as well.
Furthermore, since the violative conduct would be done through the acts of another third
party, this would also be a violation of Rule 8.4a. 1
The Committee is aware that there is controversy regarding the ethical propriety of a
lawyer engaging in certain kinds of investigative conduct that might be thought to be
deceitful. For example, the New York Lawyers’ Association Committee on Professional
Ethics, in its Formal Opinion No. 737 (May, 2007), approved the use of deception, but
limited such use to investigation of civil right or intellectual property right violations
where the lawyer believes a violation is taking place or is imminent, other means are not
available to obtain evidence and rights of third parties are not violated.
1
The Committee also considered the possibility that the proposed conduct would violate Rule 4.3,
Dealing with Unrepresented person, which provides in part that
(a) In dealing on behalf of a client with a person who is not represented
by counsel, a lawyer shall not state or imply that the lawyer is
disinterested . . .
(c) When the lawyer knows or reasonably should know that the
unrepresented person misunderstands the lawyer’s role in the matter the
lawyer should make reasonable efforts to correct the misunderstanding.
Since the witness here is unrepresented this rule addresses the interactions between her and the
inquirer. However, the Committee does not believe that this rule is implicated by this proposed course of
conduct. Rule 4.3 was intended to deal with situations where the unrepresented person with whom a
lawyer is dealing knows he or she is dealing with a lawyer, but is under a misapprehension as to the
lawyer’s role or lack of disinterestedness. In such settings, the rule obligates the lawyer to insure that
unrepresented parties are not misled on those matters. One might argue that the proposed course here
would violate this rule because it is designed to induce the unrepresented person to think that the third
person with whom she was dealing is not a lawyer at all (or lawyer’s representative), let alone the
lawyer’s role or his lack of disinterestedness. However, the Committee believes that the predominating
issue here is the deception discussed above, and that that issue is properly addressed under Rule 8.4.
©2009 The Philadelphia Bar Association
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4
Elsewhere, some states have seemingly endorsed the absolute reach of Rule 8.4. In
People v. Pautler, 47 P. 3d 1175 (Colo. 2002), for example, the Colorado Supreme
Court held that no deception whatever is allowed, saying,
“Even noble motive does not warrant departure from the rules of Professional
Conduct. . . We reaffirm that members of our profession must adhere to the
highest moral and ethical standards. Those standards apply regardless of
motive. Purposeful deception by an attorney licensed in our state is intolerable,
even when undertaken as a part of attempting to secure the surrender of a
murder suspect. . . . Until a sufficiently compelling scenario presents itself and
convinces us our interpretation of Colo. RPC 8.4(c) is too rigid, we stand resolute
against any suggestion that licensed attorneys in our state may deceive or lie or
misrepresent, regardless of their reasons for doing so. “ The opinion can be
found at http://www.cobar.org/opinions/opinion.cfm?opinionid=627&courtid=2
The Oregon Supreme Court in In Re Gatti, 8 P3d 966 (Ore 2000), ruled that no
deception at all is permissible, by a private or a government lawyer, even
rejecting proposed carve-outs for government or civil rights investigations,
stating,
“The Bar contends that whether there is or ought to be a prosecutorial or some
other exception to the disciplinary rules is not an issue in this case. Technically,
the Bar is correct. However, the issue lies at the heart of this case, and to ignore
it here would be to leave unresolved a matter that is vexing to the Bar,
government lawyers, and lawyers in the private practice of law. A clear answer
from this court regarding exceptions to the disciplinary rules is in order.
As members of the Bar ourselves -- some of whom have prior experience as
government lawyers and some of whom have prior experience in private practice -- this
court is aware that there are circumstances in which misrepresentations, often in the
form of false statements of fact by those who investigate violations of the law, are useful
means for uncovering unlawful and unfair practices, and that lawyers in both the public
and private sectors have relied on such tactics. However, . . . [f]aithful adherence to the
wording of [the analog of Pennsylvania’s Rule 8.4], and this court's case law does not
permit recognition of an exception for any lawyer to engage in dishonesty, fraud, deceit,
misrepresentation, or false statements. In our view, this court should not create an
exception to the rules by judicial decree.“ The opinion can be found at
http://www.publications.ojd.state.or.us/S45801.htm
Following the Gatti ruling, Oregon’s Rule 8.4 was changed. It now provides:
“(a) It is professional misconduct for a lawyer to: . . . (3) engage in conduct involving
dishonesty, fraud, deceit or misrepresentation that reflects adversely on the lawyer’s
fitness to practice law.
©2009 The Philadelphia Bar Association
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(b) Notwithstanding paragraphs (a)(1), (3) and (4) and Rule 3.3(a)(1), it shall not be
professional misconduct for a lawyer to advise clients or others about or to supervise
lawful covert activity in the investigation of violations of civil or criminal law or
constitutional rights, provided the lawyer's conduct is otherwise in compliance with
these Rules of Professional Conduct. ‘Covert activity,’ as used in this rule, means an
effort to obtain information on unlawful activity through the use of misrepresentations
or other subterfuge. ‘Covert activity’ may be commenced by a lawyer or involve a
lawyer as an advisor or supervisor only when the lawyer in good faith believes there
is a reasonable possibility that unlawful activity has taken place, is taking place or will
take place in the foreseeable future. “
Iowa has retained the old Rule 8.4, but adopted a comment interpreting the Rule to
permit the kind of exception allowed by Oregon.
The Committee also refers the reader to two law review articles collecting other
authorities on the issue. See Deception in Undercover Investigations: Conduct Based
v. Status Based Ethical Analysis, 32 Seattle Univ. L. Rev.123 (2008), and Ethical
Responsibilities of Lawyers for Deception by Undercover Investigators and
Discrimination Testers: An Analysis of the Provisions Prohibiting Misrepresentation
under Model Rules of Professional Conduct, 8 Georgetown Journal of Legal Ethics 791
(Summer 1995).
Finally, the inquirer also requested the Committee’s opinion as to whether or not, if he
obtained the information in the manner described, he could use it in the litigation. The
Committee believes that issue is beyond the scope of its charge. If the inquirer
disregards the views of the Committee and obtains the information, or if he obtains it in
any other fashion, the question of whether or not the evidence would be usable either
by him or by subsequent counsel in the case is a matter of substantive and evidentiary
law to be addressed by the court.
CAVEAT: The foregoing opinion is advisory only and is based upon the facts set forth
above. The opinion is not binding upon the Disciplinary Board of the Supreme Court of
Pennsylvania or any other Court. It carries only such weight as an appropriate
reviewing authority may choose to give it.
©2009 The Philadelphia Bar Association
All Rights Reserved
6
Attachment
Proposed Model Jury Instructions
The Use of Electronic Technology to Conduct Research on
or Communicate about a Case
Prepared by the Judicial Conference Committee on
Court Administration and Case Management
December 2009
Before Trial:
You, as jurors, must decide this case based solely on the evidence presented here
within the four walls of this courtroom. This means that during the trial you must not
conduct any independent research about this case, the matters in the case, and the
individuals or corporations involved in the case. In other words, you should not consult
dictionaries or reference materials, search the internet, websites, blogs, or use any other
electronic tools to obtain information about this case or to help you decide the case. Please
do not try to find out information from any source outside the confines of this courtroom.
Until you retire to deliberate, you may not discuss this case with anyone, even your
fellow jurors. After you retire to deliberate, you may begin discussing the case with your
fellow jurors, but you cannot discuss the case with anyone else until you have returned a
verdict and the case is at an end. I hope that for all of you this case is interesting and
noteworthy. I know that many of you use cell phones, Blackberries, the internet and other
tools of technology. You also must not talk to anyone about this case or use these tools to
communicate electronically with anyone about the case. This includes your family and
friends. You may not communicate with anyone about the case on your cell phone,
through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or
website, through any internet chat room, or by way of any other social networking
websites, including Facebook, My Space, LinkedIn, and YouTube.
At the Close of the Case:
During your deliberations, you must not communicate with or provide any
information to anyone by any means about this case. You may not use any electronic
device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or
computer; the internet, any internet service, or any text or instant messaging service; or
any internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube
or Twitter, to communicate to anyone any information about this case or to conduct any
research about this case until I accept your verdict.
NEW CLIENT SOCIAL MEDIA CHECKLIST
G
Does clt have mobile device (ie. cell phone, iphone, blackberry, etc.)
#
Does clt use mobile device to send text messages
#
Does clt use mobile device to access the internet
#
Does clt use mobile device to access any social networking sites
G
Is clt on Facebook or MySpace (same questions should be asked for both)
#
Does clt accept anyone as friend by default or are do they review requests
#
Does clt allow the public to see their profile and postings (what are clt’s privacy
settings)
#
Is clt friend with anybody involved in this case
#
Has clt already posted or discussed anything related to the case on their page (ie.
messages, links, photos, etc.)
Warn clt not to discuss case on Facebook and explain why (friends may be govt
snitch/Govt can use it against clt)
Warn clt not to discuss case with any potential witness (may be violation of bond;
potential obstruction of justice; potential threats )
Warn clt not to discuss witnesses nor make reference to witness (may be obstruction of
justice; potential threats)
i
i
i
G
i
i
i
G
G
G
G
G
Does clt use Twitter
#
Who does client follow
#
Who follows client
#
Has client tweeted about the case
#
Has client received any tweets about the case
#
Does client allow the public to follow their tweets (what are clt’s privacy settings)
Advise clt re: public nature of tweets and how cannot control where/to whom they are
forwarded
Warn clt not to discuss case on Twitter and explain why (friends may be govt
snitch/Govt can use it against clt)
Warn clt not to discuss case with any potential witness (may be violation of bond;
potential obstruction of justice; potential threats)
Warn clt not to discuss witnesses nor make reference to witness (may be obstruction of
justice; potential threats
Is clt using any other social networking sites
Does client have a blog
Does client go to any blogs regularly and have they left comments - if so, under what
user name
Does client go to any chat rooms - what is their handle (user name)
For all of the above, have any of their discussions been related to the case
#
Get details and give warnings