Facebook Expert Witness Testimony

Facebook Legal Drama

Earlier today I testified as a Facebook expert witness at a trial up in Newmarket Ontario, in which the accused was charged with uttering a death threat via his use of status updates, and the group facility on the popular social networking site. Ironically when I got home and tried to login, I was denied access, and was told by friends that my profile was no longer available.

First however let me get into the background of the case I was testifying at. The accused, D.S. (name protected by a publication ban) is your average Facebook user. Like anyone else he perhaps puts way too much personal information online, and is certainly not fully aware of the extent to which he's discarded his personal privacy.

When his newborn son is taken away by child services, D.S. expresses his anger and determination to take action via dozens of status updates, and the creation of a group to organize support for the return of his child. In the course of doing so D.S. uses violent language that is inappropriate, and some of his Facebook friends reply and point out as much.

When a staff member of the regional child services agency searches Facebook and finds the group, followed by D.S. and his profile with status updates, they contact police and he is charged.

Obviously I'm neither a lawyer, nor the judge presiding over this case, so it's not my job to say whether D.S. is guilty under the law or not.

However in court I argued that Facebook is essentially a fantasy environment, and that expressions within Facebook should be regarded as existing within a virtual reality. The purpose of Facebook is to offer its users a stage upon which to construct a shared narrative, an interactive play, that while based on real life, is in fact fantasy. Unlike a resume or CV, people spin their profiles to reflect the more positive and attractive elements of their personality.

In cross examination the crown asked me if my own facebook profile was fantasy, to which I replied of course, that it involved elements of exaggeration and embellishment that are intended to entertain.

Obviously testifying in court has a structure, and its form can be quite limiting. A few times I almost forgot where I was and wanted to get into a larger discussion on the virtuality of Facebook and why even aspects of it that are real are in fact entirely fantasy. The best fantasy is often the most realistic, but that does not make it real. Perhaps a discussion or event for another day.

Or perhaps to be continued at another trial in the future. Now that I've been recognized by a court of law as being a Facebook expert it becomes easier in the future for other courts to bestow upon me similar status. Unfortunately I suspect there will be a lot of people charged with crimes relating to Facebook use. It's not that Facebook causes them to break the law, rather Facebook may wrongly portray fantasies of being an outlaw as indicating someone really is living outside of the law.

Of course when I returned home I too wanted to dip my head into the fantasy world that is Facebook, only to be denied! I tried to login and instead got the message that maintenance is being done on my account. While I've seen this happen to others before, I can't help but feel the irony. My profile did return after an hour, although I can't help but imagine the Crown having my profile frozen and seized so each and every bit can be analyzed to see if it really is fantasy, if I really have exaggerated or embellished my online persona...

I also wrote a brief paper that was presented to the court on the role and purpose of Facebook. I've posted a copy of this on my private blog.

Update: Article on my testimony from the Toronto Star

Update 2: Article from the National Post

Update 3: Transcript of the Judge's decision

Comments

Hi Jesse,

I read with great interest this post on your Facebook testimony. I have mixed feelings about it.

On the one hand, I realize that we embellish on the internet all the time - I do it on my blog, I do it to a certain degree on Facebook, too. I do it in emails where I want to come off as something other than what I am or how I am currently feeling. So I agree that there is that aspect to it, as you testified.

On the other hand, I wonder about all the cases we keep hearing about re. cyber bullying in schools and the workplace, and when I read your post, I couldn't help but think that what you described sounds like cyber bullying. It seemed quite obvious to me that D.S.'s intent was to intimidate - but of course I don't have all the information.

I know from personal experience that it's sometimes prudent to keep things back online. Once I wrote about suicidality on my blog and I had several calls from friends asking me if I was OK and if they needed to call an ambulance for me. I didn't fully realize until then that when people read what I write, they might actually take it seriously (I wasn't suicidal at the time, though I was still in the acute phase of depression).

Anyway, food for thought!

I am assuming that in order to see your private blog and comments etc. that I have to be a registered user on your network?

Thanks for listening,

Allyson.

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As a person who has witnessed at first hand how one of my very good friends was mercilessly manipulated and lied to by CAS over and over again, I can certainly understand how someone might feel intense antipathy towards some of their actions.

And, as a person who has spent many years in internet Chat forums, I am certainly aware of the existence of some intentionally cruel individuals who go out of their way to seek out and exploit the weaknesses of some participants with the explicit intent to tear them down, and torment them.

It also seems fairly obvious to me that "What happens in Facebook, stays in Facebook", so to speak. "Death threats" online, and those in what we tend to call "real life", are not the same - one need not invoke the ideas of fantasy worlds and/or role-playing to make this distinction.

The simple reality is that speech on the internet is protected not only by so-called Charter rights; it is also protected by the simple model of no habeas corpus. There is more range of allowable expression precisely because the stakes are so low: no unexpected punch in the jaw, nor any kick in the shins can ensue.

The corollary is that in this case there WAS such an unexpected punch, in the form of a legal action brought as a consequence of something stated on the internet, no matter how outrageous an utterance it might seem in "real life".
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The only "fantasy world" there is in basis exists in the living out of one's ability to voice such frustrations in such an unbridled fashion, because there pre-exists the notion that it is not "real life", which therefore provides safety to vent, rant, vilify, threaten, etc.

I personally am not at all certain that this is in fact a good thing in its entirety, largely because there is exactly this disconnect between "internet" and "real life". It seems to lead to the potential for a whole quasi-heroic exisitence bearing no relation to one's unpleasant real life experiences - this seems ultimately unhealthy, and if participated in the mass, permits the abandonment of more and more individuals of their idea that their "real" life can ever bring any worthwhile satisfactions.

I don't think it seems useful to breed a class of such persons in our society without at least acknowledging their otherness in ths context, and having societal norms and services which effectively tend to integrate such persons into the larger society.

We are far from any such awarenesses, as this trial shows.

Facebook, as you say, may be primarily a virtual world. We are not talking, for example, of unwanted harassing messages sent directly to a Facebook member. In cases where individuals write openly online (Facebook or other private websites), regardless of the gravity and inappropriateness of the claims, influence is limited. There are no "physical" consequences unless a defamation/harassment suit is launched. But how would you categorize similar writings posted on permanent Government websites? Cyberbullying on such a "respected" site proves particularly damaging, inescapable and permanent. How would your expertise apply in a case where the Ontario Government identifies and cyberbullies a 14-year-old?

It might be enlightening to have you testify on this.

Hey Richard, I think you've touched upon something interesting here. My testimony regarding Facebook was certainly about the particular conditions that web environment fosters. Certainly other websites would have different qualities, characteristics, and relationship between reality and fantasy. Arguably the government is the sanctioned authority when it comes to defining reality, and thus by default a government website that provides a permanent place for information is an example of said reality.

I agree with Wandering Coyote's concerns about cyber-bullying, and thus this whole issue needs greater exploration and discussion. So Richard I'm curious to hear more about the case you mention. If you know the lawyer involved have them contact me...

My lawyer has a fool for a client. We are both one in the same. But I am better off than the plaintiffs' counsel on this case. You can find many of the "facts" of the case online.-google [andrew osidacz]

Hi Jesse,

What a fascinating topic!

After reading this post and the write-ups in the Star and Post, a few things occurred to me that I didn't see mentioned.

First, when someone joins Facebook, they agree to a series of terms including "In consideration of your use of the Site, you agree to (a) provide accurate, current and complete information about you as may be prompted by any registration forms on the Site ("Registration Data")", and "In addition, you agree not to use the Service or the Site to: upload, post, transmit, share, store or otherwise make available any content that we deem to be harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable."

Now, I'm sure that both these terms are frequently ignored by Facebook users, and so perhaps an important question to ask is whether and why Facebook would treat rule-breaking with unequal measures. Nevertheless, surely Facebook would have a good case for saying, based on the first term quoted above, that users are NOT supposed to treat the site as a place for fantasy, and that, based on the second term, fantasy or not, threats are unacceptable.

I was really intrigued by your / McLuhan's idea about Facebook text being akin to verbal than to the written word in its impermanence. I can see why for a lot of reasons - there is no obvious, tactile material record of what's been said, and Facebook encourages users to change their record of themselves frequently. (As a medievalist, I am totally fascinated by the evolving nature and status of 'text' in our culture and the question of whether we're becoming hyperliterate or postliterate or what. But I digress.) I wonder if the distinction between a permanent, 'paper' copy of something and an impermanent, 'digital' version is so hard and fast among young folks today. I've noticed in teaching at university, for example, that students, supposedly the most media-savvy generation ever, show very poor discernment skills when finding sources: I shudder to think of how many times "Wikipedia" and perhsonal homepages of no scholarly merit have been used in academic history essays.

Hey Mairi,

I too am fascinated by the evolving nature and status of text. This only came up tangentially in the case but is something I've written about extensively and hope to revisit again soon.

With regard to Facebook's policies, I spoke in court about their efforts to enforce integrity amongst their users, and I further argued that this was a pre-requisite for the type of virtual reality that this environment cultivates. The strength of such fantasy is its basis and dependence upon real life. I often think of Facebook as a half way point towards a Second Life virtual immersive environment.

I can't help but think of vampires and zombies (two of the most popular facebook applications) and biting people as vivid examples of the fantasy aspect of Facebook.

Yes, that's an excellent point about the vampires and zombies. Now that I think about it, some of the superpoke options are pretty insulting, if not threatening, while clearly (meant to be) in the realm of fantasy.

Reader response critics could have a ball with this - should what a Facebook author mean to say inform how the text is received?

One could go on and on and on. And even on.

I think you'd be further ahead to give up on the "fantasy" thesis and switch to Goffman's "identity management" approach if you want to carry your ideas further. The fantasy thesis is limiting, ultimately fragile and calls into question the "expert" tag.

Anon, dear friend, I didn't see you in the courtroom yesterday. Thus I assume you were not able to listen to my full testimony. I'm quite familiar with identity management, and touched upon it within the context of describing the presence of fantasy within the use of Facebook.

I'm sort of confused by your original post...
At first, I thought you were outright defending the guy.
But then I saw some caveats that hinted that maybe you're just not sure.

So I have some questions...

1) Are you saying that a threat made on FaceBook (while conversing with others) is NOT the same as someone making an email/phone/real-life threat (while conversing with others)?

2) Are you confusing tone, with environment?
Meaning, a defesne might be that the persons text did not convey the intended tone...maybe a sarcastic tone was taken seriously. Whereas you're saying that because it's done in the FaceBook environment, we should dismiss it altogether.

3) Would you seriously NOT REPORT a threat you saw on FaceBook to the authorities? Thinking it was "fantasy".

Hey Paul,

1) Yes, I am saying they are not the same, though to be clear, in this case the threat was not directed. It was made sort of speaking out loud, an expression of frustration rather than a targeted threat. A status message on Facebook is arguably not the same as conversing with others, as really you're speaking out loud, but in a way that your friends will hear you. I don't think your speaking with them in that case however.

2) The environment helps influence and set the tone. And please don't paraphrase me incorrectly, or assume that what the National Post wrote is what I said. The testimony in court took almost 3 hours total, and a lot was said in that time, that was not reported. I did not say that anything said in Facebook should be dismissed altogether. Rather I said that things said in Facebook need to be taken within the context of Facebook.

3) No. I never indicated anything of the kind.

Here's the link: http://www.canlii.org/en/on/oncj/doc/2008/2008oncj98/2008oncj98.html

We did our last podcast on this.

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