To Google or not to Google, That is the Question

The Recorder’s Scott Graham caught up with Intellectual Property partner Carolyn Toto for a litigator’s take on social media’s role in trials in a Q&A session.

Judge Alsup talks about trial lawyers and jury consultants scouring Facebook and other profiles to dissect politics, religion, relationships, preferences, photographs. How much of that is standard practice in a reasonably high stakes trial nowadays? I think it probably is pretty standard. I think courts are just now starting to realize how much is accessible and they want to put some balance on it, to reasonably limit the scope of what Judge Alsup considered an invasion of privacy.

He didn't seem to believe that users could rely on privacy settings. He made a funny comment about it's more a matter of blind faith than conscious choice. I think he's indicating the court wants to play a role in making sure that some of this information, even though it could be public, stays protected.

Isn't a lot of social media content very deliberately public? Could there be much confusion about Twitter or LinkedIn? Right. That's kind of the tension there. I think we're at a kind of crossroads now as social media becomes more of an everyday norm. I mean, millennials, for example. I have a sister who's 12 years younger than me. I have no doubt that she understands how the privacy settings work. So up until now, there probably is confusion, but as we go on this might be less and less of an issue.

Another issue the court was concerned about was, what if you go friend somebody, or you use somebody who happens to be a friend [of the juror]. That information arguably would be private to you. I think the bar associations and the courts are grappling with how to limit that, where to set boundaries.