Written by attorney Peter Anthony Sartes II

How Social networking sites can affect your criminal case

We don't have to tell you how technological leaps change the way we practice law. We expect that there will be a video in a DUI case. We expect undercover recordings in drug cases. We expect some electronic-spectromagigie to tell us that the blood is blood and it belongs to the dead guy. So what makes social networks like MySpace, Facebook, YouTube or Twitter any different? Well, in the old days law enforcement had to go out and collect evidence to convict your client. They had to leave the police station and do actual investigations. Since the emergence of MySpace and other social network sites, all law enforcement has to do is log on and build a case based solely on the information put on the web by your client. Recently in Polk County, Florida, a group of teenagers were arrested for the beating of their schoolmate. The teens tape recorded the event and uploaded the video to YouTube. In Missouri, a woman was Indicted by the Department of Justice for cyber-bullying a neighbor girl which apparently led the teenaged girl to commit suicide. And just so you don't think this is an American trend, a Facebook internet group is currently facing persecution in Australia for making threats against the life of a man charged with starting brushfires. In the UK, a juror barely escaped prosecution for posting the details of a child abduction and sexual assault case on her Facebook page and for taking a poll for votes regarding the defendant's guilt or innocence. Even if your case doesn't revolve around a social network site for its prosecution, there is a good chance that the photos on your client's MySpace page of him or her consuming beer through a funnel posted shortly after he was involved in a DUI Manslaughter will surface at his sentencing. In fact, MySpace pages are becoming commonplace in violation of probation hearings and at sentencing where enhancements are at issue. This, of course, is secondary to cases where the defendant puts pictures of him and his buddy vandalizing the house next door on his Facebook page for law enforcement to see. The federal system has been on the forefront of electronic prosecutions since their jurisdiction encompasses any medium of interstate commerce. In a recent trial, we were able to cross-examine the custodian of records for AOL who testified that all AOL e-mail and instant messages are routed through their central hub in Virginia. Even if you instant message your neighbor, the communication still travels in interstate commerce unless both sender and recipient are located in Virginia. Pursuant to a law enforcement subpoena their compliance team can tag an account and print out a copy of the billing summary, e-mail accounts, screen names, buddy lists, address books, profiles and account histories that are in their central database. He also testified that AOL saves e-mail for 28 days as a default unless the user chooses a longer period of time for retention. Finally, we learned that AOL does not save instant messages or internet searches, although they do retain information regarding the IP address of websites the user has visited. Federal prosecutions for child pornography, and enticing or coercing minors via computer have always hinged on the internet, but now, with the proliferation of social networking sites like MySpace, our client's communications with the 12 year old girl from Kansas who likes interludes with older men were all recorded and date stamped by the internet provider. Of course the 12 year old girl is really...Detective Romanosky, Pinellas County Sheriff's Office. Recently, the 11th Circuit in United States v. Villanueva, 2009 U.S. App. LEXIS 3852 affirmed the sentencing enhancements of a felon in possession of a firearm case that stems from a YouTube video and a MySpace photo. The Court expressed in its opinion that even though the actual date of possession of the firearm could not be ascertained from the YouTube video or the MySpace photo, it was clear that they were created after the Defendant's felony conviction. Also, the Eleventh Circuit affirmed sentencing enhancements for possession of an assault weapon and a high capacity magazine based solely on the Defendant's video. Many Gang units are using MySpace as a way of identifying gang members. We were involved in a case recently where a vast number of individuals were identified based upon a known gang phrase. These individuals had open MySpace accounts and most of the time were proud of their gang affiliation and included photographs of their gang conquests and, of course, their guns. Long gone are the days of searching defendant's for tattoos, and colored bandanas, all law enforcement needs to do now is print the MySpace page, and present it to the jury. MySpace is not only the catalyst for investigations of individuals involved in child pornography cases, or in firearm charges, in fact, an individual commits a felony offense punishable by up to five years' imprisonment if he transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another. 18 U.S.C.S. ? 875. So, all your client's talk about wanting to kill his ex-wife that he posted on his MySpace page is evidence of a federal offense. In the case of United States v. Ebersole, 263 Fed. Appx. 251 (3rd. Cir. 2008) The Defendant's Myspace page was admitted at the supervised release revocation hearing to put his e-mail in context. Ebersole's Myspace page, entitled "Skanka8er-Justice is Coming" played a theme song containing the lyrics: "I used to love her, but I had to kill her/I had to put her/Six feet under/And I can still hear her complain." Ebersole's Myspace page also included commentary stating, "I vowed justice against my false accuser and I have never broken my word of honor . . . I honestly don't know how much time is left before she forces my hand." At the revocation hearing, Ebersole testified that he used his Myspace webpage as a "vehicle to voice [his] frustration. The District Court found that Ebersole's e-mail violated the conditions of his supervised release because it was reasonable to assume that the message would reach the victim and any reasonable person would interpret it as a threat. As if this wasn't enough, digital cell phone carriers now offer a number of applications that a consumer can download. Some of these applications are free and are designed as social networking tools. For instance a Blackberry application called google maps that shows you the location of your friends anywhere in the world. I-phone has Who's Here which shows you the location of individuals that are also members of Who's Here that may be in your general vicinity. Recently, a Georgia man was arrested after it was determined that he traveled to Florida to have sex with a 14 year old girl. His whereabouts along with the 14 year-old girl's were memorialized by the GPS locator in their I-phones which led police to track the exact time and place of their interlude, and also aided in the arrest of the defendant. In Miller v. Skumanick, 605 F. Supp. 2d 634 (M.D. Penn, 2009) the issue of the case was the practice of "sexting," which has become popular among teenagers in recent years. "sexting" is "the practice of sending or posting sexually suggestive text messages and images, including nude or semi-nude photographs, via cellular telephones or over the internet." Typically, the subject takes a picture of him- or herself with a digital camera or cell phone camera, or asks someone else to take that picture. That picture is stored as a digitized image and then sent via the text-message or photo-send function on a cell phone, transmitted by computer through electronic mail, or posted to an internet website like Facebook or MySpace. This practice is widespread among American teenagers; According to the Plaintiffs (the parents of minors involved in "sexting") studies show approximately 20% of Americans age 13-19 have participated in the activity. In the Miller case, the District Attorney was enjoined from pressing charges against the minors involved. So what is a good criminal defense attorney to do? First and foremost, during your initial interview, find out what social networking sites your client frequents and maintains accounts with. Secondly, advise the client that everything he posts on MySpace, YouTube, or anywhere on the internet is there forever. Thirdly, find out what is on the MySpace account and who has access to it. Is the account private, or is it open for anyone to see? Also, find out if they grant anyone access that asks, or if they require a DNA sample and a passport photo before granting access to an outsider. If there is anything questionable, don't bother removing it, cancel the account completely. Canceling the account is the only way that most social networking sites will purge their servers of the data. Furthermore, explain to the client the implications of the mindless chatter that occurs on these social networking sites, advise your client to refrain from posting their feelings about the judge and the alleged victim until after you win the case.

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