While Facebook has been in the news recently for its upcoming IPO, another story, about Facebook privacy, caught my attention on the radio as I was brushing my teeth this morning. Apparently, Facebook is still working on deleting photos from its servers in a timely manner nearly three years after the issue was brought to Facebook’s attention.

Have you ever deleted a horrific photo on Facebook that was posted by a “friend?” Well, you may not have really deleted it. Photos “deleted” from Facebook seemingly never go away if you have a direct link to the image file on Facebook’s servers. Just imagine the joy felt by those individuals who had the common sense or foresight to delete photos because they didn’t want retaliation from an employer, wanted to avoid family drama or uploaded a photo of a friend without permission, to name a few reasons, when they discovered the photo would remain accessible for an indefinite amount of time as long as someone had a direct link to the .jpg file in question.

A few months ago, I had to research the discoverability of information and data on a Facebook (or other social media) account and profile. From the limited guidance published by a few jurisdictions, it seems that a party would likely succeed in requesting Facebook information and data during the discovery process. The court’s interpretation of federal Rule 26(b)(2)(c) allows for an extremely broad scope of relevancy.

While Maryland courts have not ruled on this broad scope of relevancy as it pertains to social media discoverability pursuant to Rule 26(b)(2)(c), it has ruled on its reliability and authentication. In April 2011, the Maryland Court of Appeals reversed the conviction of Antoine Griffin, which was based on evidence gathered from a MySpace profile of Griffin’s girlfriend. The Court of Special Appeals had ruled the police officer proffered by the state as an authenticating witness was sufficient to authenticate the MySpace profile printout. (A law professor from Chicago gave a great summary of this case on his blog and I will highlight some points here.)

The Court of Appeals ruled that the trial judge abused his discretion in admitting the MySpace evidence pursuant to Maryland Rule 5-901(b)(4) because the picture of Griffin’s girlfriend, Jessica Barber, coupled with her birth date and location, were not sufficient “distinctive characteristics” on a MySpace profile to authenticate its printout, given the prospect that someone other than Barber could have not only created the site but also posted the “snitches get stitches” comment.

The potential for abuse and manipulation of a social networking site by someone other than its purported creator and/or user means a printout of an image from such a site requires a greater degree of authentication than merely identifying the date of birth of the creator and her visage in a photograph on the site.

The Court of Appeals also recognized the decisions of other courts when they were called upon to consider authentication of electronically-stored information on social networking sites, which have all suggested greater scrutiny because of the heightened possibility for manipulation by individuals other than the true user or poster.

After citing a laundry list of such cases, the court then cautioned that

we should not be heard to suggest that printouts from social networking sites should never be admitted. Possible avenues to explore to properly authenticate a profile or posting printed from a social networking site, will, in all probability, continue to develop as the efforts to evidentially utilize information from the sites increases.

The three existing methods are:

(1) The most obvious method would be to ask the purported creator if she indeed created the profile and also if she added the posting in question, i.e. testimony of a witness with knowledge that the offered evidence is what it is claimed to be.

(2) If the alleged creator denied creating the profile or posting the entry, the second option may be to search the computer of the person who allegedly created the profile and posting and examine the computer’s Internet history and hard drive to determine whether that computer was used to originate the social networking profile and posting in question.

(3) A third method may be to obtain information directly from the social networking website that links the establishment of the profile to the person who allegedly created it and also links the posting sought to be introduced to the person who initiated it. This method was apparently successfully employed to authenticate a MySpace site in People v. Clevenstine, 68 A.D.3d 1448, 891 N.Y.S.2d 511 (N.Y.App.Div. 2009).

Has anyone been shutting down their social media profiles to protect themselves? I never update my Facebook profile with status messages anymore, and all of the photos on my profile are fairly mundane. What are your thoughts on the discoverability of social media?

Is what the therapist did here breaking some kind of ethical code? Although the therapist’s article can be viewed as entertainment, it can also inspire hope and be used as a tool by other therapists as they look for ways to improve their own practices. Slate reports it’s not a violation of ethical code for a therapist to talk about his or her patients as long as the patient’s identity remains hidden.

Even though the therapist adhered to the code of ethics and concealed the identity of his clients, his (or her) actions still raised eyebrows and questions related to confidentiality. I didn’t think anything of it while reading the article, but apparently some people thought the clients could still be identified by such generalized descriptions.

For lawyers, of course, the line is a bit clearer. They must adhere to a strict code of confidentiality when it comes to information about their clients. They can only talk about or publicize information about their clients if their client has given informed consent. This happens often in high-profile cases when the lawyer basically buys the rights to a client’s case/story in order to write a book or make a movie/ TV show.

But what about if a lawyer wants to do something similar to the therapist who wrote for Gawker?

I’m many years away from starting my Great American Novel, so I’m not intimately familiar with the rules, but I imagine they are similar to in the case of the therapist. How else would books like this be able to be published? I would think it could be hard to write how-to books for lawyers given the ethical constraints, but these types of books that include first-hand accounts of professionals are incredibly valuable teaching tools. It’s the next best thing to learning by doing.

I know a glimpse into a lawyer’s mind while handling a case would have been a very welcome change from the endless waves of casebooks after casebooks I read in law school. Is it possible to create more books of this genre in the legal profession? Or are the ethical constraints too stringent to allow for this tool?

Yeah. That was my comment. I was working on the computer in the kitchen when my wife came down and said that it was over. It gets worse — she told me the answer, and my attitude was probably best described as indifferent. I am one of five brothers and the only one who has any consistent interest in sports is the oldest. The rest of us just didn’t get that gene. (My dad doesn’t have it, either, though I suppose he’s a carrier.)

I spent more time Sunday reading about football than actually watching it. I came across this article on CNN, “The president who saved football.” It seems whether you like football or hate it, you have Teddy Roosevelt to thank/blame.

Apparently, football was a very violent and unregulated sport back in Teddy’s day. In 1905, before the advent of the NFL and professional football, 18 amateur and college players died because of injuries associated with the game. Fans loved the sport with all of its raw brutality, but it had powerful detractors and was at risk of being banned.

Roosevelt called a beer summit (I can’t say that there was beer there, but one could easily imagine Teddy drinking a brew and bringing folks together) and helped influence changes to the sport that would save it while appeasing the more pacifistic opponents. No more gang tackles, 10 yards needed for a first down and the advent of the forward pass. It’s hard to believe that passing is such a relatively modern addition.

A bunch of grown men in costumes playing war games — it sounds like a Star Trek convention. Actually, how is fantasy football any different than Dungeons and Dragons? Maybe I should like it more than I do…

That said, we’re all aware of social media as a “hot topic” for the year. Most of us use social media of some kind, for better or for worse. Most of us also wonder why and how to use social media. There are plenty of articles out there about how to conduct yourself online, how to develop relationships online and how to use social media in connection with litigation.

With all the excitement surrounding social media, it’s easy to forget about the dangers. To name a few, the Federal Trade Commission is starting to investigate bloggers who receive benefits for namedropping in their posts. Obviously, unscrupulous posts can put your reputation in question (it can also help you repair your reputation). There are security risks. And, yes, what you say online can still be used against you in a court of law (if it is properly authenticated, that is).

Despite those dangers, we seem to have become generally comfortable in this new way of communicating and are now focusing on how to most effectively exploit it.

What we lawyers cannot forget is that the rules of our profession still apply. For example, the American Bar Association’s Rules of Professional Conduct provide guidelines on advertising, providing information about legal services, maintaining confidentiality and communicating appropriately with opposing parties, whether they are represented or not.

And state bars are enforcing these ethical guidelines. A state court judge, for instance, was reprimanded for “friending” a lawyer” in a case he was presiding over.

In practice, it is even more complicated than you might think.

While social media provides us young attorneys with many great opportunities — to highlight risks and benefits of developing technologies for our colleagues and our clients; to network from the comfort of our couches; to maximize the reach of our marketing efforts—we cannot use social media now like some of us used to.

Now, we need to think before we friend someone, before we post, before we comment on someone else’s post and even before we “like” something. We must anticipate the unintended consequences of what we do and say online.

Most of these issues involve working with our staff. Like any other organization with lots of people, there is a hierarchy that exists. When I was a law clerk for Baltimore City Circuit Court Judge M. Brooke Murdock, I assumed the hierarchy was either judge/legal assistant/law clerk or legal assistant/judge/law clerk. (Notice how the law clerk was always last.)

In a law firm, you have different groups, including partners, associates, paralegals and staff. Early in my career, I was provided with two pieces of sound advice: if you find a good secretary/legal assistant, never let him or her go; and always be nice to those you work with (and the court clerks).

Paralegals, legal assistants and interns can save you (and your case) when time is short and a deadline is near. Staying late, working through lunch and taking extra care with the task at hand comes easier when a mutual respect exists. Talking down to or poorly about your staff to others only builds resentment. And blaming others for something that is ultimately the attorney’s responsibility is merely trying to deflect responsibility from yourself. As a general rule, it is my responsibility to make sure that there are no mistakes in any document that has my signature on it.

As such, I want to take the time to thank the staff and paralegals I work with and assist me in the zealous representation of our clients. Thanks Tina, Erin, Lara, Brad, Colleen, Jean, Lisa, Tina M. and Nancy.

Do you have staff that you want to commend? Do so in the comments section.

Biden, a lawyer, is as aware as anyone of the importance Americans place on the rule of law at home and abroad. He presided over some of our nation’s most controversial judicial nominations and later, as the Senate’s point man on foreign affairs, met with countless leaders from  different countries, territories and international organizations while pushing President Bill Clinton and the United Nations to punish rulers who flouted the rule of law.

Our own commitment to the rule of law was demonstrated to the world during the 2000 presidential election in which we accepted the Supreme Court’s decision in Bush v. Gore. Without a coup, civil war or violent rioting in the streets, the public and the losing candidate moved beyond the controversy because of respect for the rule of law and the greater good of the nation.

The respect may be especially profound to those entrusted with determining the rule of law in specific cases. It is a topic of Justice Stephen Breyer’s recent book and a favorite subject of Maryland Court of Appeals Chief Judge Robert M. Bell.

When speaking to youth about the judiciary and separation of powers, Bell often laments the court’s status as the weakest branch of government. With the legislature possessing the power of the purse and the executive having the power of the sword, the courts have only the power left to it by the willingness of the public to accept its judgments. The fact that we regularly do is truly exceptional.

Talk of American exceptionalism often seems tinged with arrogance, and this perception can be counterproductive when trying to collaborate with foreign governments. But I think Biden’s perspective gives us something to be very proud about when comparing ourselves to the rest of the world and something both sides of the political spectrum can embrace.

In the weeks leading up to the event, I heard great stories about bar banquets past. Only lawyers and judges can attend the Prom, and the lack of spouses and significant others may account for the legendary tales.

While last night was not as rowdy as days of yore, one great tradition remained intact: throwing rolls at the keynote speaker. I’ve asked around the courthouse to see if anyone knows the origin of the tradition to no avail. But I learned it is upheld no matter the level of dignitary at the podium. Spiro Agnew once gave the keynote while vice president; even with the Secret Service in the building, he was still pelted with dinner rolls. Last night’s keynote, Baltimore County Executive Kevin Kamenetz, came prepared with a basket of rolls to fire back at the crowd.

Throwing rolls is indicative of the general mood at the Prom. Even though everyone is dressed in their finest black-tie garb, no one takes themselves too seriously, and I think that’s precisely why it was so much fun. (The lobster dinner and open bar didn’t hurt, either.) It was a great opportunity as a young lawyer to see respected judges and lawyers let their hair down, a reminder they like having a good time just as much as the next guy.

Even though the banquet is a great party, it’s also a good place to make connections. The guest list is a who’s who of Baltimore-area lawyers and judges. One person last night told me that he gets more business in an hour at the Prom than in a week at the office, and I don’t doubt it. For every law school classmate, law clerk and former coworker I caught up with last night, I met three new lawyers.

If you’ve never been before, the Baltimore County bar banquet is a rite of passage that can’t be missed – and one professional event you won’t dread attending.

My son was born as I was finishing up my first year of law school. As we all heard numerous times during our first years of law school, going to law school teaches us how to think like lawyers. I agree whole-heartedly and frankly, I have trouble remembering how I engaged with any subject — politics, sports, cooking — before law school. This also means that I have thought like a lawyer for the entire time I’ve been a father.

Unfortunately, thinking like a lawyer doesn’t always help me to be a better father. For example, my son often tells me that a directive I have given him — clean up his toys, turn off the TV — is “not fair.” For a long time, I made the time-consuming mistake of explaining to him why what I had asked him to do (or stop doing) was, in fact, completely fair. My wife would roll her eyes knowingly or glide behind me and whisper that I should stop wasting my time. She was right, of course. I only aggravated my son and myself by trying to explain.

My next step was to agree with my son. When he told me that something wasn’t fair, I would immediately tell him that he was right and it wasn’t fair. This worked well… the first few times. Thereafter, my son began retorting “it’s fair to you!” Initially, I stifled my laughter and continued with my plan of telling him he was right and agreeing with him that my order was fair to me but not to him.

Lately, though, I have begun to think about this notion — and more specifically –  his concept of fairness. He and I are very much alike, so I think I understand what he’s getting at. For him, fairness is more than just an equitable concept, the basis of a quantum meruit action in a dispute. For him — and for us? — fairness is a lived experience. It is a feeling, a strong and righteous one, that arises without any rational control, often in the heat of the moment.

Think about it. This is often the feeling that wells in the pit of your stomach when you realize that a judge is about to rule against you despite your well-reasoned argument. However, we have learned — at least most of us have — to suppress our desire to tell the judge that her ruling is “not fair.”

The point? I think that acknowledging and recognizing how, why and when this concept of fairness rears itself in my own life, the lives of my clients and the lives of adverse parties and their attorneys makes me better-equipped to serve my clients’ needs by insisting on bringing reason — as opposed to emotion — to bear on whatever matter they have brought before me.

And just in case you’re wondering, yes my son still protests that I am not fair, and no, I haven’t figured out how to handle it.

U.S. v. Jones involved a drug dealer who appealed his conviction for conspiring to distribute drugs that was based on evidence the police collected via a GPS monitor physically attached to his vehicle. The police used the GPS monitor to track Antoine Jones’ movements for more than a month without a warrant. All nine justices upheld an appellate court decision reversing Jones’ conviction.

While the Supreme Court mentioned that police might need a probable cause warrant from a judge to physically attach a GPS device to a vehicle and monitor the vehicle’s movements, SCOTUS omitted a clear opinion on what specific situations required a warrant.

While the decision is better than what the government contended — that it could affix GPS devices on the vehicles of all members of the Supreme Court, if it desired, without a warrant — it is hard to tell where we stand in the increasing debate over our rights to privacy.

Justice Sonia Sotomayor, in a concurring opinion, suggested Americans have more rights to privacy in data held by phone and Internet companies than the Supreme Court has held in the past. I did not own an iPhone at the time when everyone found out that Apple tracked its users, but I do own one now. And let me tell you — every time my device asks me whether it can “use my location,” I wonder if I should let it.

John W. Whitehead, writing at The Huffington Post, listed several sources of technology that spur the privacy debate. Drones, smart dust devices, surveillance cameras, facial recognition software, iris scanners and your very own cell phone are some of the items available to the police without engaging in a “search” pursuant to U.S. v. Jones.

This is because these technologies do not require the government to engage in a physical trespass of one’s property to gain information.

On another note, I sent in my very first set of discovery requests a few weeks ago that utilized requests for information available via social media. The latest case law (and there is still not much of it yet) leads us to believe that pokes, wall comments, status updates and the like will be discoverable if relevant to the matter being litigated. Is anything we do via our gadgets and on the Internet going to be protected in five years? What are your thoughts? Where do we draw the line?

It looks like our legal system is going to have a similar relationship with the technology; the Supreme Court ruled Monday the use of a GPS device to track a suspect’s behavior and location qualifies as a search under the Fourth Amendment.

However, the justices left it an open question as to whether it’s an invasion of privacy to use GPS devices to track people through a device that comes installed with a GPS, such as a cell phone. The justices hinted that they might have to modify their ruling if GPS devices were used in this manner in order to protect privacy rights.

I know phone records can be subpoenaed in cases and these records can also show the location of the calls, or at least what tower the cell phone call is routed through. But it’s interesting to think that law enforcement could have the capability to monitor your every move through the GPS device on your phone.

Considering that it’s a virtual necessity, if only for safety reasons, for adults to carry a cell phone, this means just about anyone’s location could be tracked at anytime.

Even red-light and speeding cameras are held by some as compromising our right to privacy. Many states (not including Maryland) require these cameras to capture the driver’s face and therefore can be used to place a suspect in a particular place at a particular time. Even the cameras in Maryland that only capture pictures of license plates can be used to implicate where a suspect was, when he was there and where he was going.

Also, there is always a question about the reliability of the equipment, which has already been questioned in red-light camera cases. And, as an owner of a GPS device, I’ve got to believe reliability is going to become an issue in these GPS cases. (I mean how can you lose a satellite signal on I-95?)

There are many issues left to be dealt with in these cases, such as how private citizens can use technology against law enforcement. We recently saw, for example, citizens have the right to tape police in traffic stops. I’m excited to see what other creative ways people will begin to use technology to protect their individual rights against law enforcement.

What do you think of the court’s ruling? What issues do you think these types of cases willraise and what will be the big issues in the future?