Facebook, Social Media, and Attorney Ethics

The scary Facebook news just keeps coming. We all have friends who are threatening to cancel their Facebook account in the aftermath of the Cambridge Analytica scandal.

And now we learn that the social media company is tracking our phone calls and text messages.

The company says the content of calls and messages is not saved, and that the tracking information is never shared with third parties. And if you don’t want Facebook to have any information about who you call or text, you can delete any data they have collected. Not only that – you can prevent the company from collecting any more information about your calls and texts.

I Didn’t Tell Zuckerberg He Could Do That … Did I?

Facebook’s Messenger app collects your phone call and text messaging information by default. But you can go into the app, click on the “people” option, and turn off “sync contacts.”

So, what gave Facebook the right to collect this information? According to the company, you did. When you started using Messenger, the app defaulted to turning “sync contacts” on – but you had the option to turn it off. If you didn’t turn it off, it collected your call and text data. It might seem a little sneaky, but for now it doesn’t appear Facebook has broken any laws.

New Technologies Always Deliver New Problems

These kinds of ethical gray areas are common with social media. But it’s not something specific to social media – all new communications technologies bring with them legal and ethical questions that must be answered and can make users nervous.

When telephones first became available at the turn of the 20th century, people were terrified that their conversations might be overheard or recorded. And they were right – operators frequently eavesdropped on conversations before the industry and the legal system developed norms around the technology.

When use of email started becoming widespread in the 1990s, many people worried that it would be too disruptive and would even dumb down communications. Now, of course, it’s an essential part of most people’s personal and professional lives.

Social Media Challenges Specific to Attorneys

The ethical challenges of social media are not unprecedented, but they can be particularly challenging for attorneys.

For example, if knowing that Facebook can track all your calls and text messages makes you nervous, how does it make you feel to know the social media site might be tracking all your attorney’s calls and texts related to your case? That’s a lot of information that you assumed was private. Could it be used against you in court? These are the kinds of questions that keep attorneys awake at night.

Other ethical issues posed by social media for attorneys include:

  • Can my social media sites violate rules against giving legal advice outside my jurisdiction? Social media blurs the lines of “jurisdictions,” so it’s important that attorneys only offer generalized information online rather than answering specific legal questions.
  • Could I accidentally establish an attorney-client relationship? Attorneys should liberally post disclaimers noting that any interaction doesn’t form an attorney-client relationship.
  • Could I violate ethics rules by “friending” a witness or judge who is involved in a case I am trying? Social media relationships with judges can result in the judge being recused, and communications with witnesses could be seen as witness tampering. Attorneys should know what their state bar association says about these kinds of social media relationships.
  • Could I violate ethics rules just by posting about what a bad day I had? For example, if you say something like, “My idiot client lied to the judge today,” the “idiot client” could see it and complain that you have improperly disclosed information about them.

More than ever, attorneys need to take care that they are not violating any ethics rules on Facebook or other platforms. There are plenty of ethical pitfalls and ethical gray areas when attorneys are using any electronic tools – Facebook, email, Twitter, even cloud storage services can result in a grievance, loss of clients, and embarrassment for otherwise competent lawyers.

SC Criminal Defense Attorney in Myrtle Beach

Daniel A. Selwa, II, is a criminal defense lawyer in Horry County, SC. If you have been charged with a crime in the Myrtle Beach, Conway, or Georgetown area, call now at (843) 492-5449 or fill out our online contact form to set up a free, confidential consultation about your case.

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