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VOL. 121 | NO. 110 | Thursday, May 25, 2006

Beware of Blogs: Entries Admissible in Court without Warrant

By Andrew Ashby

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WORLD AT HER FINGERTIPS: Ruth Smith, law library assistant director at the U of M, checks out a favorite blog. Blogging has become a popular means of communication. -- Photograph By Andrew Ashby

Most lawyers don't have time to surf the Internet at work, much less post information on blogs. However, these cyber journals can be handy for finding information on a variety of legal topics.

About 8 million people have created blogs and 32 million read them, according to the Pew Internet & American Life Project, a 2005 nationwide survey.

One segment of the legal community that uses blogs extensively is law librarians. They use technology heavily to communicate, said Gregory K. Laughlin, associate dean for information resources and law library director at the University of Memphis' Cecil C. Humphreys School of Law.

"It's the old water cooler writ large," he said. "It's the conference you go to once a year, available 24-7, where you're bouncing ideas off your colleagues from around the country or in some cases, around the world."

Nanosecond networking

Law librarians are able to get ideas and different ways of thinking from a diverse group of people via blogs. They can post a question and find out how others have handled it or see another angle to a problem.

"That may generate some answers to the question I raised, but it may also raise some additional issues that I wasn't even thinking about that I should have been thinking about," Laughlin said.

A Word on Blogfest USA:
- Nationwide, 8 million people have created blogs.
- 32 million Americans are blog readers.
- Blogs evolved from bulletin boards, which were used on the Internet since the 1960s.
- Since the information is in the public realm, bloggers don't have a reasonable expectation of privacy for anything they post on a blog.
- Bloggers can be protected under free speech, but face the limitations of it as well.

However, blogs have uses outside the world of law academia. Attorneys can use blogs as a tool to find information on a case, although it should be tempered by the limitations of the Internet, such as each piece of information's authenticity.

"A lawyer might use a blog to identify the sources he or she needs, not to get the information itself," Laughlin said. "Information on the Internet, particularly unvetted information on the Internet, is extremely unreliable. They might go to the blog and ask people what kind of resources they have or how they have approached (an issue)."

The U.S. Department of Defense developed the Internet in the 1960s as a way to continue communications in the case of a nuclear attack, Laughlin said. Users could post information on bulletin boards shared across a computer network. The World Wide Web, which is a part of the vast Internet, came into existence in the early 1990s as a system of sites that allowed graphics, and blogs became part of that evolution.

"Users basically took the bulletin board concept that existed before the Web and used it to share information," Laughlin said.

Private thoughts, public realm

"Some people have been fired because blogs have hurt the company. They can be going contrary to their corporation's policies. They need to take a hard look at something before they go traipsing out under the guise of free speech."
- Jim Summers
Civil attorney for Allen, Summers, Simpson, Lillie and Gresham PLLC

Laughlin also is an associate professor of law who teaches cyber law, which deals with issues relating to law and technology. He deals mostly with trademark concepts, free speech and privacy. He has seen some cases involving the admissibility of information that a defendant in a criminal court had posted to a discussion list.

"There, the court said that if you're putting information onto a discussion list or bulletin board that you have no reasonable expectation of privacy," Laughlin said. "Therefore, law enforcement officers do not need a warrant to obtain that information to use it in court."

Jim Summers, a civil attorney for Allen, Summers, Simpson, Lillie and Gresham PLLC, doesn't use blogs to enhance his practice, but sends an e-mail to other lawyers or does the research himself.

However, he has seen how blogs can raise legal questions. In one instance, Summers was representing the CEO of a company that was having financial difficulties. On a blog, various shareholders and employees were posting messages speculating about the company's stock.

"Some people were beginning to ascribe some motives to the company that weren't great," Summers said. "I woke up one Saturday morning and read a post. It was the CEO of the company who responded to some of the posts, saying 'This is not true, this is what is going on.'"

Summers' first thought was whether this was really the CEO responding to criticism or someone pretending to be him. If there had been additional litigation and the other side could prove it was the CEO writing the messages, then the information could be used in court. The law treats blogs like diaries or personal journals.

"There is nothing in the law that I'm aware of that says a person's personal journal cannot be used against them," Summers said. "The only difference is that you're putting that journal out on the marketplace for people to read. If you go home and make notes and then get involved in a lawsuit next week, and the notes are relevant to the issues of the lawsuit, guess who's going to get a copy of that journal? I am."

A blog can be protected under conditions such as the First Amendment's free speech clause, although it does have limitations. The classic example is that you can't yell fire in a crowded theater.

Employees, for example, can post messages on a blog about a company they work for, but they have to be careful.

"Some people have been fired because blogs have hurt the company," Summers said. "They can be going contrary to their corporation's policies. They need to take a hard look at something before they go traipsing out under the guise of free speech."

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