Written by Phil Villarreal - September 8, 2010 - Arizona Daily Star
http://www.azstarnet.com/
Comments and pictures parents post on Facebook can come back to haunt them during custody battles, debt-collection efforts and job applications.
A compromising Facebook post "is like a smoking gun in that you can't destroy it," said attorney Shawn Kenney, the law department team leader at Thrush Law Group.
Kenney said he's seen custody cases hinge on arguments of parental incompetence stemming from Facebook posts. He recalled a case in which a father posted a picture of himself proudly displaying a 3-foot acrylic bong. In another case, Kenney said a mother wrote about how she'd been out with her girlfriends "getting trashed for the third time this week."
"When people put information on Facebook it may not be in their best interest and does come back to haunt them in ongoing litigation involving custody," Kenney said, adding he's also seen a mother call her young boy "my pimp" and a father post a picture of himself baring tattoos while posed with a butcher knife, joking that he was a killer.
Divorce attorney Robbie Lewis, who owns the Law Offices of Robert G. Lewis, P.C., has also seen Facebook rear its often-ugly head in custody battles.
"The whole face of discovery in divorce has really changed over the last few years," Lewis said. "I can't tell you how many times clients have found out about extramarital affairs through looking through their spouses' telephones in the middle of the night, or checking their spouses' e-mail or Facebook accounts."
Lewis said in the past, clients would hire private investigators to dig up dirt on spouses. Now the evidence can be found with a few mouse clicks.
"People put silly things on Facebook accounts - pictures of themselves or other people in bars doing inappropriate things" that end up presented at trial, Lewis said.
Attorney Grady Wade, who, along with his work in other legal fields, defends clients in debt-collection cases and sometimes collects debt for creditors, said while he doesn't personally use Facebook to investigate debtors, anything people post publicly on Facebook is fair game.
"If they put stuff up there, it's pretty much for public use," Wade said. "If they don't make the page private, then it's for public use and they don't have any expectation of privacy."
The Fair Debt Collection Practices Act, which prohibits abusive behavior and restricts the methods collectors can use to locate debtors, doesn't prohibit using social networking sites.
Wade said third-party debt collectors aren't allowed to publicly shame debtors. For instance, a collector couldn't become a friend of a debtor under a false pretense and then post something on his wall about him owing money.
The restrictions don't apply to the creditors themselves, Wade said, adding that he'd advise clients to record any contact with a third-party collector.
Tucsonans applying for jobs at the University of Arizona, the region's second-largest employer, had best clean up their Facebook profiles.
UA human-resources manager Chris Wolf said managers dig up whatever information they can to vet job prospects, and Facebook is within limits.
"If a candidate regularly references violent behavior, then that may be a red flag," Wolf said. "It's more likely that a hiring manager will discover that someone references topics such as their political views - irrelevant when it comes to determining whether they can perform well, yet it may create an unintended bias."
No matter the context, Kenney said people should stop thinking of Facebook posts as semi-private announcements to close friends. He recalls a mentor's advice from decades ago, advising him to be careful about what he put in writing and says it applies to social networking sites:
"Never put anything on there you wouldn't want on a billboard on the highway," he said.
Showing posts with label privacy. Show all posts
Showing posts with label privacy. Show all posts
Thursday, September 9, 2010
Monday, June 21, 2010
Legalities of Surveillance
The following was written by Kelly E. Riddle, Kelmar and Associates Incorporated.
Surveillance and privacy issues are a constant source of contention for PI's. Although the author is not an attorney and does not intend to offer legal advice, there are case-laws currently on the book which investigators and their clients should be aware of. These, by no means, are the final or sole cases related to the subject. It should be understood that the courts are constantly hearing cases that may have a bearing on the PI industry. The courts have the right to over-rule prior decisions, to restrict prior findings or to disregard prior case law all together. Therefore, please consider the following case findings with these circumstances in mind.
DeLuna -v- State of Texas (1986): Part of the court's findings involved a decision that photographs are admissible as evidence if they accurately depict the subject at the time they were taken.
Darden -v- State of Texas (1982): The court ruled on several issues which included the admissibility of motion pictures and photographs as evidence. The court decided that motion pictures and photographs are admissible as evidence provided there is proof of their accuracy as correct representations of the subject at the given time and they have material relevance.
Johnson -v- State of Texas (1977): The court delivered a finding that photographs that fairly and accurately depict the subject are generally admissible and any discrepancies between the photograph and the subject at the relevant time, if properly pointed out, will not render the photograph inadmissible.
Terry -v- State of Texas (1973): The court indicated that photographs are admissible in evidence and sighted the theory that they are pictorial communications of the witness who uses them, instead of, or in addition to, some other method of communication.
Hall -v- State of Texas (1992): The court ruled that under Rule 1001 which governs the admissions of photographs, including video tapes, the "7 prong test" must be satisfied. The 7 prong test consists of the following:
1) It must be proved that the recording device (camera) was capable of taking testimony. Note: The investigator must be able to show that the camera was in good operating condition without malfunctions.
2) The operator of the recording device must be shown to be competent in the use and operation of the device.
3) The authenticity and correctness of the recording must be documented. Note: The investigator must be able to document the proper chain of custody and that tampering with the tape has not occurred.
4) The investigator must be able to show that the tape or photographs have not had any additions, deletions or changes made to the tape. Note: The investigator must be able to testify that the tape is a true and complete recording, free of editing or tampering of any kind. If a tape is edited, the original unedited copy must be available for review by the court.
5) The court must be shown the manner of presentation.
6) The recording must show proper identification of the subjects depicted in the tape or photographs. Note: The investigator must have proper facial views of the subject documented so that the identity of the subjects can be assessed.
7) Must be able to show that the testimony or actions was elicited voluntarily without inducement. Note: This goes directly to the "entrapment" of a subject. The Investigator cannot cause a situation that would create circumstances that would make the subject act differently than they might without the circumstances presented to them. Example: the investigator cannot let the air out of a tire to cause the subject to have to change the tire.
U.S. -v- Pretzinger (1976): The court indicated that the attachment of an electronic location device to a vehicle moving about on public thoroughfares or through public air or public space does not infringe upon any reasonable expectation of privacy and does not constitute a search. therefore no search warrant is needed for installation of the device. Note: The investigator should remember other laws such as trespassing laws when considering the use of these devices. If the investigator has to enter upon the property of the subject to affix the device on the vehicle, trespassing may have occurred.
U.S. -v- Mendoza (1978): The court made a ruling on the admissibility of tape recordings which were made with the consent of one party to a conversation (ex: an undercover officer). The court rules that judicial authorization to record conversations is not necessary in these situations.
U.S. -v- Torres (1984): According to the findings in this case, television surveillance of suspected criminals and criminality is not unconstitutional.
U.S. -v- Rizzo (1978): The court found that in this case, a private investigator was attempting to gather evidence of marital infidelity on behalf of their client. The court stated that regardless of whether or not the private investigator installed an electronic device for recording conversations over the telephone or procured the client-spouse to install it by giving her the device and instructing her on how to use it, they violated the provision against interception of wire or oral communications.
White -v- Weiss (1976): The found that when a private investigator used, or gave their client an electronic device to record telephone conversations even though it was within the client's own home and it involved one spouse against another violated the wiretap provisions of Omnibus Crime Control and Safe Streets Act.
U.S. -v- Myers (1982): In a case in which undercover agents videotaped a conversation with a Congressmen, the court ruled that the agents did not violate the Congressmen's 1st and 4th Amendment Rights.
Air Line Pilot's Association, International -v- United Airlines: The court rules that it is a violation of the National Labor Relations Act to unlawfully photograph a picket line is it is intended to coerce or interfere.
National Labor relations Board -v- Southern Mayland Hospital: The court ruled that it is not illegal to photograph union activities in areas restricted to the union.
General Notes: It is apparent that the court has ruled that a person has the right to privacy if a reasonable and prudent person would have an expectation of privacy under similar circumstances. If a person has the garage door open and you can see the subject from the street without any binoculars or other visual assistance, the person can't expect to have a total sense of privacy. Whereas, a subject in their own home with the doors and curtains closed would be expected to have a certain degree of privacy. Common sense goes a long way in this type of work. Remember, it is your business, livelihood and reputation on the line. Making a few dollars illegally is not worth the long-term circumstances. If the situation involves trespassing, entrapment or some other violation, think before you commit.
Surveillance and privacy issues are a constant source of contention for PI's. Although the author is not an attorney and does not intend to offer legal advice, there are case-laws currently on the book which investigators and their clients should be aware of. These, by no means, are the final or sole cases related to the subject. It should be understood that the courts are constantly hearing cases that may have a bearing on the PI industry. The courts have the right to over-rule prior decisions, to restrict prior findings or to disregard prior case law all together. Therefore, please consider the following case findings with these circumstances in mind.
DeLuna -v- State of Texas (1986): Part of the court's findings involved a decision that photographs are admissible as evidence if they accurately depict the subject at the time they were taken.
Darden -v- State of Texas (1982): The court ruled on several issues which included the admissibility of motion pictures and photographs as evidence. The court decided that motion pictures and photographs are admissible as evidence provided there is proof of their accuracy as correct representations of the subject at the given time and they have material relevance.
Johnson -v- State of Texas (1977): The court delivered a finding that photographs that fairly and accurately depict the subject are generally admissible and any discrepancies between the photograph and the subject at the relevant time, if properly pointed out, will not render the photograph inadmissible.
Terry -v- State of Texas (1973): The court indicated that photographs are admissible in evidence and sighted the theory that they are pictorial communications of the witness who uses them, instead of, or in addition to, some other method of communication.
Hall -v- State of Texas (1992): The court ruled that under Rule 1001 which governs the admissions of photographs, including video tapes, the "7 prong test" must be satisfied. The 7 prong test consists of the following:
1) It must be proved that the recording device (camera) was capable of taking testimony. Note: The investigator must be able to show that the camera was in good operating condition without malfunctions.
2) The operator of the recording device must be shown to be competent in the use and operation of the device.
3) The authenticity and correctness of the recording must be documented. Note: The investigator must be able to document the proper chain of custody and that tampering with the tape has not occurred.
4) The investigator must be able to show that the tape or photographs have not had any additions, deletions or changes made to the tape. Note: The investigator must be able to testify that the tape is a true and complete recording, free of editing or tampering of any kind. If a tape is edited, the original unedited copy must be available for review by the court.
5) The court must be shown the manner of presentation.
6) The recording must show proper identification of the subjects depicted in the tape or photographs. Note: The investigator must have proper facial views of the subject documented so that the identity of the subjects can be assessed.
7) Must be able to show that the testimony or actions was elicited voluntarily without inducement. Note: This goes directly to the "entrapment" of a subject. The Investigator cannot cause a situation that would create circumstances that would make the subject act differently than they might without the circumstances presented to them. Example: the investigator cannot let the air out of a tire to cause the subject to have to change the tire.
U.S. -v- Pretzinger (1976): The court indicated that the attachment of an electronic location device to a vehicle moving about on public thoroughfares or through public air or public space does not infringe upon any reasonable expectation of privacy and does not constitute a search. therefore no search warrant is needed for installation of the device. Note: The investigator should remember other laws such as trespassing laws when considering the use of these devices. If the investigator has to enter upon the property of the subject to affix the device on the vehicle, trespassing may have occurred.
U.S. -v- Mendoza (1978): The court made a ruling on the admissibility of tape recordings which were made with the consent of one party to a conversation (ex: an undercover officer). The court rules that judicial authorization to record conversations is not necessary in these situations.
U.S. -v- Torres (1984): According to the findings in this case, television surveillance of suspected criminals and criminality is not unconstitutional.
U.S. -v- Rizzo (1978): The court found that in this case, a private investigator was attempting to gather evidence of marital infidelity on behalf of their client. The court stated that regardless of whether or not the private investigator installed an electronic device for recording conversations over the telephone or procured the client-spouse to install it by giving her the device and instructing her on how to use it, they violated the provision against interception of wire or oral communications.
White -v- Weiss (1976): The found that when a private investigator used, or gave their client an electronic device to record telephone conversations even though it was within the client's own home and it involved one spouse against another violated the wiretap provisions of Omnibus Crime Control and Safe Streets Act.
U.S. -v- Myers (1982): In a case in which undercover agents videotaped a conversation with a Congressmen, the court ruled that the agents did not violate the Congressmen's 1st and 4th Amendment Rights.
Air Line Pilot's Association, International -v- United Airlines: The court rules that it is a violation of the National Labor Relations Act to unlawfully photograph a picket line is it is intended to coerce or interfere.
National Labor relations Board -v- Southern Mayland Hospital: The court ruled that it is not illegal to photograph union activities in areas restricted to the union.
General Notes: It is apparent that the court has ruled that a person has the right to privacy if a reasonable and prudent person would have an expectation of privacy under similar circumstances. If a person has the garage door open and you can see the subject from the street without any binoculars or other visual assistance, the person can't expect to have a total sense of privacy. Whereas, a subject in their own home with the doors and curtains closed would be expected to have a certain degree of privacy. Common sense goes a long way in this type of work. Remember, it is your business, livelihood and reputation on the line. Making a few dollars illegally is not worth the long-term circumstances. If the situation involves trespassing, entrapment or some other violation, think before you commit.
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