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 2: Article from the National Post
Update 3: Transcript of the Judge's decision