© 2015 The Texas Lawbook.
By Shamoil T. Shipchandler and Terence J. Hart of Bracewell & Giuliani
(Feb. 12) – Hey, did you know that you can get yourself in a whole lot of trouble on social media? No, seriously, you can! Wait, you already knew that? Everyone knows that? Well then, why does it keep happening?
The Dallas Morning News last June published an article about how the Dallas Police Department botched the Twitter announcement of a public intoxication arrest. Specifically, DPD spokesman Max Geron tweeted that Denver Broncos cornerback Aqib Talib had been arrested. But it turns out that Dallas police had actually arrested Aqib Talib’s brother, Yaqub Talib, who is about as much of an NFL player as we are.
There are many lessons in this minor debacle about the propriety of publicly announcing high profile arrests (DPD certainly does not announce all of its arrests). For example, is Twitter the appropriate vehicle for public announcements that come from any source but the Kardashians, from whom a 140-character limit would truly be a blessing?
In case you actually thought that we could not source this comment, we give you this: “The Keeping Up with the Kardashians starlet took to Twitter to let everyone know just how she feels about French Montana admitting he’s using her for fame!” Feel free to read more, if you dare, at http://perezhilton.com (Aug. 18, 2014).
The lesson that we want you to consider is how damaging social media can be to … well, to your everyday, average pair of prosecutors who work out at a local gym and decided to pretend “as a joke, to punch each other in sensitive areas of their bodies,” according to the Albany Times Union in an article in March 2014.
“A photo was taken. It went on Facebook. The district attorney saw it,” the newspaper reported. The DA suspended them over the Facebook picture.
There are the lawyers who, in 2010, posted a song about the “Trial from Hell” – during the trial, of course – on Facebook, describing the judge as confused and opposing counsel as weasel-faced.
And there are these:
• The target of a government investigation who tried to convince federal agents that he was out of town when certain events occurred despite “checking in” on Facebook at the local gym;
• The defendant who tried to convince SEC regulators that she has an arms-length relationship with another company, but posted pictures of a night on the town with the company’s owner, and;
• The individual who tried to convince a federal prosecutor that he’d make a great witness and a lousy defendant, despite having posted “government workers are like ticks” on Tuesday (along with a picture).
None of this is peculiar to litigation or government investigations, by the way. Corporations and businesses are all over social media right now because that’s where their customers are.
Because of that, the Federal Trade Commission and U.S. Securities & Exchange Commission both have social media guidelines governing what company employees can say about company products online.
If that’s not enough to give your average general counsel fits, how about thinking through employee-on-employee sexual harassment via Twitter, or company trade secrets posted on 4chan, or disparaging comments on Yelp?
Or what if social media gets you some unfavorable notice by the SEC, like in the case of New York money manager Mark Grimaldi, whom the SEC sanctioned for making false claims about his success on Twitter? And how about the IRS data mining Facebook and eBay to look for tax evaders?
There can be an innocent explanation for anything posted on the Internet, but social media has given you a barrier to surmount – one entirely of your own making – and the stakes are often enormously high: regulatory investigations, trials, job interviews, job performance reviews and, of course, immortality on the Internet.
What about privacy settings? Give us a break. We’ll see your privacy settings and raise you a subpoena, a search warrant or civil discovery.
Do you feel comfortable that all 797 of your very best friends in the world won’t take a screen capture of your Facebook page and send it to the media?
In the days when hashtags were pound signs, there was generally no contemporaneous public diary of your activities. Now, from when you woke up (“awake and feeling great!”), to what you ate (“eggs and peanut butter, #imlovinit”), to your afternoon mood (“soooooooo sleepy”), to opinions of your coworkers (“I wish Bob would stop staring at me. #creepy”), it’s all out there. And sometimes that over-sharing of information can write a narrative that gets you into a great deal of trouble.
Now let’s acknowledge that social media may lead to indiscretions, with the inescapable reality of electronic storage of information.
It’s a well-known fact of life that things turn up where or when you least expect them. Lose your glasses? They’re probably on your head. Wallet? Still in the car. Remote control? Between the couch cushions. Vial of smallpox? Probably in th—
What?
Yes. Vial of smallpox. Not joking. Smallpox, as in a government scientist cleaning out a storage room last July at a lab on the National Institutes of Health’s Bethesda campus found decades-old vials of smallpox, the second incident involving the mishandling of a highly dangerous pathogen by a federal health agency in a month.
If you’re having a bad day, stop for a moment to think about the poor guy who stumbled across smallpox. It’s guaranteed to make you feel better, promise.
Great Googly Moogly! (If you are sadly unfamiliar with the term “Great Googly Moogly,” please visit YouTube immediately. You’ll thank us for it. Promise).
Now imagine, if we can find decades-old vials of smallpox that someone has forgotten were there, what can we find in your social media archives, where nothing is ever deleted?
Did you write something controversial in college or law school? Or hashtag something offensive after the last Romo interception? Or say something indiscreet about a co-worker or opposing counsel? Because it’s all going to be out there. Forever.
Now here’s where you have problems. Law firms, large and small businesses, governmental agencies and even public interest organizations are amazingly loose with things when it comes to electronically-stored information. Things that we want to store are often not, and things that we don’t want to store often are.
Most places have networked computer setups with a server where all the information is housed. But how often do you save a local copy of a document to your hard drive to work on and then forget to put it back on the network? You’ll get to it tomorrow, right?
Or you jot some notes down during a call that you save on your Microsoft Office desktop, along with the 50-gazillion other such notes that make your desktop look a lot like rush hour collided with a Beyoncé concert.
Eventually you’ll get a free day when you can sort all of that out. Of course you will. But when your hard drive crashes before then, all of that information is lost.
Compare that with how many places Twitter, LinkedIn or Facebook information stores.
Did you know that there are websites that even provide access to historically archived Internet pages? For example, Politwoops restores politicians’ deleted Tweets because, well … just because.
That kind of stuff is not going away any time soon. The useful stuff? Gone. The dangerous stuff? Hanging out.
So you may very well misplace your keys, or cell phone, or purse. But the results of that “What kind of mollusk are you” Buzzfeed quiz that you sent to 23 friends? Yeah, that’s lodged for posterity.
The bottom line here: Take a moment to think before you make a public pronouncement. And while you may not get to post all of your thoughts on the internet the moment they happen … you’ll get a lot more time for all the cat videos.
Shamoil T. Shipchandler is a former federal prosecutor handling white-collar criminal cases for the U.S. Attorney’s Office in the Eastern District of Texas. Terence J. Hart is a former state and federal prosecutor in Dallas. Shipchandler and Hart are now partners at Bracewell & Giuliani where they handle white-collar criminal matters and defend individuals and companies involved in enforcement cases brought by the U.S. Securities and Exchange Commission.
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