Icts, Social Media, & The Future of Human Rights

By: Nikita Mehandru and Alexa Koenig

As communication increasingly shifts to digital platforms, information derived from online open sources is starting to become critical in creating an evidentiary basis for international crimes. While journalists have led the development of many newly emerging open source investigation methodologies, courts have heightened the requirements for verifying and preserving a chain of custody—information linking all of the individuals who possessed the content and indicating the duration of their custody—creating a need for standards that are just now beginning to be identified, articulated, and accepted by the international legal community. In this article, we discuss the impact of internet-based open source investigations on international criminal legal processes, as well as challenges related to their use. We also offer best practices for lawyers, activists, and other individuals seeking to admit open source information—including content derived from social media—into courts.
Download Full Article (PDF)
Cite: 17 Duke L. & Tech. Rev. 129

Increasing Copyright Protection for Social Media Users by Expanding Social Media Platforms’ Rights

By: Ryan Wichtowski

Social media platforms allow users to share their creative works with the world. Users take great advantage of this functionality, as Facebook, Instagram, Flickr, Snapchat, and WhatsApp users alone uploaded 1.8 billion photos per day in 2014. Under the terms of service and terms of use agreements of most U.S. based social media platforms, users retain ownership of this content, since they only grant social media platforms nonexclusive licenses to their content. While nonexclusive licenses protect users vis-à-vis the social media platforms, these licenses preclude social media platforms from bringing copyright infringement claims on behalf of their users against infringers of user content under the Copyright Act of 1976. Since the average cost of litigating a copyright infringement case might be as high as two million dollars, the average social media user cannot protect his or her content against copyright infringers. To remedy this issue, Congress should amend 17 U.S.C. § 501 to allow social media platforms to bring copyright infringement claims against those who infringe their users’ content. Through this amendment, Congress would create a new protection for social media users while ensuring that users retain ownership over the content they create.

Schools, Speech, and Smartphones: Online Speech and the Evolution of the Tinker Standard

By: Aleaha Jones

Under the Supreme Court’s holding in Tinker v. Des Moines Independent Community School District, public schools may only restrict student speech where the speech is reasonably forecasted to cause a “substantial and material disruption.” With online forums calling into question who may control speech and forecast its impact, the circuit courts have granted public schools broad authority to monitor, and punish, their students for online activity that occurs off-campus. The Supreme Court recently declined the opportunity to reverse this disturbing trend by denying certiorari for Bell v. Itawamba County. As a result, questions remain unanswered regarding students’ right to free speech and how courts should address First Amendment cases in the digital realm.

Download Full Article (PDF)

Cite: 15 Duke L. & Tech. Rev. 155

Authenticity and Admissibility of Social Media Website Printouts

By: Wendy Angus-Anderson

Social media posts and photographs are increasingly denied admission as evidence in criminal trials. Courts often cite issues with authentication when refusing to admit social media evidence. Cases and academic writings separate recent case law into two approaches: The Maryland Approach and the Texas Approach. The first method is often seen as overly skeptical of social media evidence, setting the bar too high for admissibility. The second approach is viewed as more lenient, declaring that any reasonable evidence should be admitted in order for a jury to weigh its sufficiency. This Brief addresses the supposed differences between the two sets of cases and suggests that courts are not actually employing two distinct approaches. The Maryland Approach courts are not holding social media content to a higher standard than the Texas Approach courts, but are merely responding to a lack of evidence connecting the proffered content to the purported author.

Download Full Article (PDF)

Cite: 14 Duke L. & Tech. Rev. 33