Friday, March 02, 2012

Police, defendants, social media and internet privacy

The Dallas News had an interesting item this week behind the paywall about police officers getting into trouble for outing misconduct or criticizing one another via social media and online message boards. The story opened:
The online message board postings read, at times, like a typical teenager attacking a classmate.

“She has an attitude problem and is all mouth,” wrote “Eskimo88” in one December post.

“SHES AN IDIOT,” he wrote in another, referring to the same person in a post the next day as “bat [expletive] crazy.”

But the posts weren’t made by an angry adolescent. They were published on a members-only local law enforcement message board,, by Dallas police Public Integrity Detective Jeff Baum, according to public records. He made the postings in reference to a since-fired officer whom Baum’s unit investigated for criminal misconduct.

The revelation that Baum is “Eskimo88” could threaten the credibility of pending criminal cases against former Sgt. Stormy Magiera, who is accused among other things of lying about a December Dallas robbery in which police believe she was trying to buy prescription drugs. And the case highlights a culture among some officers of gossip, rumor-mongering and personal attacks that can have career-threatening consequences in the Internet era.

“We are seeing people lose their careers over a posting on Facebook, whether it was about a crime that they went to or about another officer or about a citizen,” said Harvey Hedden, executive director of the International Law Enforcement and Trainers Association.
It's been quite the trend in recent years for police to mine social media for information about defendants, but I haven't seen it used as often to allege police misconduct. That said, allowing such unfettered, anonymous carping by employees in a criminal justice setting can become corrosive and harmful. I know Grits shut down some TYC/juvenile justice strings because of exactly that type of unproductive, personal sniping against non-public figures, and it's unsurprising, if disappointing, that the online culture in some police departments isn't much better.

Perhaps relatedly, the blog Liberty and Justice for Y'all has a post on a unanimous Court of Criminal Appeals ruling which confusingly seemed to adopt a three-pronged standard from a Maryland case for authenticating that online postings actually came from a specific individual and not just someone using their computer or posing as them. However, wrote B.W. Barnett, "While the State failed, in the Tienda case, to use any of the methods articulated by the Maryland Court of Appeals, the CCA nonetheless held, that based on the circumstantial indicia of authenticity, the State created a prima facie case that would justify submitting the ultimate question of authenticity to the jury." So the court invokes a standard, then fails to follow it, but allows the evidence in anyway, declaring those methods are not exclusive. That, my friends, is outcome-based jurisprudence: Pick the outcome you want then pull a reason out of thin air to justify it.

In any event, the Tienda case will make it easier to establish the identities of police officers on sites like just like it makes it easier to prosecute workaday criminal defendants. In an odd sense, the police commenter Eskimo88 and the defendant in Tienda had somewhat aligned legal interests, at least as far as favoring a precedent that maximally protects internet privacy, forcing the state to prove authorship definitively as opposed to circumstantially.

What you say online, even anonymously, is increasingly likely to get you in trouble on the job or even with the justice system. I don't know that we've yet reached "the end of anonymity," but Internet privacy - for cops and citizens alike - certainly hangs by a tenuous thread.


Anonymous said...

Nice grits---

I sail hard. Convicted on B**lshit. We train for the olympics offshore, hard.

Texas is such a witch hunt. If you live there, move...

You deserve better...

Anonymous said...

If you think I'm kidding, go here:

Read everything!

Police perjury, prosecutorial misconduct...

Rockwall County

Anonymous said...

"So the court invokes a standard, then fails to follow it, but allows the evidence in anyway, declaring those methods are not exclusive. That, my friends, is outcome-based jurisprudence: Pick the outcome you want then pull a reason out of thin air to justify it."

Maybe you should read the case and be familiar with the Rules of Evidence before you go on a knee-jerk criticism of the court. The CCA didn't invoke a standard. The lower court (court of appeals) used the Maryland case (which was then overturned in Maryland), so the CCA was simply addressing the approach used in the lower court. The opinion was 9-0 for Pete's sake.

Anonymous said...

I don't know what relevance it would have to this case, but many years ago, I operated a bulletin board service, and was a party to a case against Southwestern Bell. During the discovery phase, Bell requested the we (the plaintiffs) turn over the identity of all the users of our service. We argued that to do so would violate federal wiretap laws. In the end, the judge overruled their demand.

Gritsforbreakfast said...

6:35, if I weren't here to provide "knee jerk" criticism of the court, what would you do for your Saturday morning entertainment? :)

DEWEY said...

I assume that EVERYTHING I say on the internet is intercepted and read.

benbshaw said...

There is no better example of outcomes-based jurisprudence, formally called 'ends justify means" thinking, than the long controversy of the exclusionary rule. The exclusionary rule is the practice required by the Supreme Court during the Hugo Black, William O. Douglas years that said if the evidence is illegally obtained, it must not be admitted. Starting with Nixon down to present, many DA's and members of the Supreme Court see the Bill of Rights as a protection for criminals, not for "upstanding" citizens. They are strict constructionists when it serves them, but have watered down the Bill of Rights with so many exceptions that there is nothing left. They have opposed the Exclusionary Rule as not being in the Constitution, while creating exceptions that cause more damage to the Rule of Law than the Exclusionary Rule could ever do. The Exclusionary Rule is the only real way to ensure the police adhere to the Bill of Rights. If the lawyers and judges in our legal system had their priorities straight, this rule would not even be a matter of contention. The current system is corrupt and Grits is to be honored for trying to right the wrongs he sees, but he is only shooting at the fleas on the beast, not the beast itself who has trampled the Bill of Rights under foot.

The new Justice Party has as its primary goal is to restore the Bill of Rights. Check it out at: