Ruling highlights social media privacy issues
Published 10:02 am, Friday, August 15, 2014
Following the reversal of a New Canaan journalist's breach of peace conviction this month, the privacy settings of the world's most popular social media website have come into question.
Teri Buhl, a self-described "smashmouth investigative journalist," was found guilty last year of harassing her then-boyfriend's 17-year-old daughter by posting parts of the teen's private journals on Facebook. She was convicted in April 2013 on the misdemeanor charges of second-degree harassment and second-degree breach of peace.
Buhl appealed the decision and the Appellate Court recently announced that it was reversing the breach of peace conviction, claiming the state did not provide enough evidence that the Facebook page was public. The ruling remands the case to the Norwalk Superior Court, with instructions to acquit her of the breach of peace charge.
"In order to convict somebody based on evidence that pertains to social media, like Facebook, you can't have less than a qualified individual testifying about the way social media works," Buhl's attorney, Stephan Seeger, said.
The teen victim was the state's only witness who testified regarding the public or private nature of the Facebook profile, according to the court's opinion.
Appellate Court Judge Stuart Bear wrote that the teen was not qualified to provide any testimony beyond how she accessed the Facebook page. According to the court's opinion, the girl testified that she was able to view the Facebook page through her own because the profile was "unprivate" and "seemed to be public." The state argued, which the Appellate Court disagreed, that this testimony was sufficient to establish that the page was public.
The reversal shows that as technology advances faster than the laws, courts are dealing with unaddressed areas of social media issues. One of the most difficult is privacy, which has proven complicated on Facebook.
The social network, which originally only allowed friends to view one's profile, has updated its privacy settings multiple times over the years, changing how the world thinks about privacy.
Molly Land, professor of law and human rights at University of Connecticut's School of Law, said the state could have provided evidence by, for instance, bringing documentation about Facebook privacy settings or questioning a social media expert.
"The state did not meet the burden of proof," she said. "If you have a privacy setting but it allows your posts to be shared with friends of friends, (the exposure) may become significantly larger," of which she said many people are not aware.
Land said social media is changing our expectation of privacy and that social media privacy settings are "much more complicated that one might imagine."
"I wasn't actually surprised by the ruling," Land said, adding that it shows "a desire to know more" about how Facebook works. "It strikes me that there wasn't a description of the facts regarding Facebook settings. Who had access to it?"
The prosecution claimed Buhl created a Facebook profile under the alias "Tasha Moore" on the day of New Canaan High School's graduation in June 2010 and posted photographs of journal writings of the high school senior, which detailed underage drinking and sexual activity at a party. The diary was in the back of the teen's bedside drawer, according to her arrest warrant affidavit.
The court's opinion states that "the state failed to meet its burden of proving beyond a reasonable doubt" that Moore's Facebook page was public and, therefore, "we further conclude that the evidence was insufficient to support the defendant's conviction of breach of the peace in the second degree."
In addition to the Facebook post, the girl's father received an anonymous Priority Mail package one day after graduation with photocopies of his daughter's diary entries and a letter describing the girl's actions while at the party, according to court documents. Buhl has denied having a Facebook account with the name Tasha Moore or posting the girl's writing on the website, the affidavit said. She admitted, however, to sending the package but not to writing the letter or obtaining the photographs.
According to state law, a person is guilty of breach of peace when "with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person publicly exhibits, distributes, posts up or advertises any offensive, indecent or abusive matter concerning any person." The court's opinion describes a "public place" as "any area that is used or held out for use by the public whether owned or operated by public or private interests."
The state did not provide "sufficient evidence for the court reasonably to have concluded that, under the evidence presented, Moore's Facebook page was held out for use by the public," Bear wrote.
"The judges were right. That was a strange charge," he said. "Technically, that person could have copied it from the Internet and then made it public. ... The girl wasn't even sure how she saw it."
A recent state Supreme Court opinion in State v. Altajir explains that Facebook's general infrastructure, including its privacy settings, "is highly dynamic and in many cases may be accurately assessed only with reference to a limited time period."
Land noted that although Facebook's privacy policies are increasingly an issue, the law is not always behind technology.
"There are fewer new problems than we initially might think. There are just new manifestations," she said. "It sounds like this wasn't much of a technology problem, but an evidential problem. ... It just means the judges just needed more explanation on how (Facebook) privacy works."
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