When does your identity cease to be your own and become that which other people claim to see? When is a person’s Internet presence more than a collection of tweets, posts, pictures, favorites, likes, plus-ones, upvotes and reblogs? When does this become a larger issue, one elevated above the mere function of killing time while waiting for a train to become a topic of import? Relevance is in the eye of the beholder, even in this ever-shifting media landscape where we increasingly move our communications online and the line between physical person and digital being becomes more and more blurred.
Members of a jury, though, are a hyper-specific subset of the population. They are individuals selected by providence (and jury selection) to participate in the great, civic splenectomy that is jury duty. They are entrusted with the highest of obligations — a fair and impartial trial, one observed by “a fair cross section of the community” — and, in return, are tasked with not communicating about the trial (in person or online). But it’s 2014, and in 2014 a thing does not really happen if we cannot post something about that thing online.
Lawyers are now allowed to look at the “Internet presence” of a juror or a potential juror, according to the American Bar Association’s committee on ethics and responsibility. Your likes and your faves are now up for review when you are being considered for jury duty or even when you’re already part of a jury. The ABA committee announced its decision in a formal opinion issued in April, noting that in the modern world, “the line … between properly investigating jurors and improperly communicating with them” is blurred. The same is true of what separates our selves from our avatars.
The problem has cropped up at multiple trials. Posts on Facebook during a trial for kidnapping and rape. Facebook, again, this time during a murder trial. Tweets during a civil trial. Posts on Twitter and Facebook during a federal corruption trial. Judges fretted, wondering what could be done. So the ABA’s committee was asked to determine what lawyers could see as well as when.
The determination: Lawyers cannot send a Facebook friend request or, say, ask to follow a private Twitter or Instagram account. Lawyers can passively review a juror’s social media postings, with idly checking a person’s public Twitter page no different than driving down a person’s street to see if anything jumps out, the ABA says. But actively reviewing a person’s social media life — say, sending a friend request, which is compared by the ABA to driving to a person’s home, knocking on the door and asking for permission to snoop around — that’s a no-no. (Judges, meanwhile, are advised to tell jurors that their backgrounds — Internet presence and all — may be investigated by the lawyers in the case.)
What are the lawyers to do with their newfangled social media access? It depends on what they find, according to the ABA. A person posting about the quality of the food being served wouldn’t matter much, but a person posting something that could damage the integrity of the trial (“Here’s the government’s first witness. I added the Sierra filter to the photo give it a more lived-in feel”) might be found in contempt. In the end, though, what matters is less what lawyers find than what they are able to cite. Would liking a certain page be indicative of a certain set of beliefs? Or, more importantly, would someone be able to make that argument? There was a wall between our selves and our Internet presence once, a long time ago, but day by day, those bricks keep disappearing.