Tweeting a revolution and more

Last October, Malcolm Gladwell caused some controversy by posting an article on Why the Revolution Will Not Be Tweeted. At the time, the article caused a stir among the blogosphere of people agreeing, at least in part and some others vehemently disagreeing. This debate just got a lot more interesting thanks to the recent revolution in Egypt and there’s already been quite a bit of talk about how much of it might be owed (or not) to Facebook, Twitter, and the Internet in general– both in the blogosphere (like this post on Facebook, Twitter, and Youtube’s role in the uprisings in the Middle East) and in the mainstream media, like the New York Times: Equal Rights Takes to the Barricades and Facebook Officials Keep Quiet on Its Role in Revolts.

I don’t want to get into the debate on the subject (partly because that would probably take a book and not a blog post), but it did start me thinking about the idea of free sources, legal or not, on the Internet, in general.  In this class and elsewhere, obviously, having these free resources is very useful for lawyers and other people to learn more and, even if social media and the Internet might not cause a literal revolution, everyone seems agreed that having more free resources is a good thing.  But it occurs to me that just having these new resources may not, actually, be a good, in and of itself, but it’s only as good as what people use it for (like most tools, of any kind.)   As Gladwell pointed out, a link or a cause going “viral” on Facebook and Twitter is one thing, but it may not actually do anything.   As an example, I can point to one recent campaign on Facebook that involved urging people to use a certain website to turn their profile pictures purple as a symbol of solidarity against the rash of teenage bullying in schools.  Showing solidarity is a good thing as was raising the profile of the issue, but as an action, I highly doubt it accomplished any tangible good– or ever will.  Clicking ‘like’ on Facebook isn’t a form of voting in an election and it won’t even contact a member of Congress to let them know about a problem, that may potentially have some effect.  It’s more a short, painless way of making people feel involved and active without actually requiring them to do anything. The problem is that it may even deepen the fairly notorious apathy of the average American when it comes to things like politics and law-making.  Such people may end up feeling just involved enough by clicking ‘like’ on Facebook, and not so uninvolved as to feel like s/he needs to make a real effort to get involved in a meaningful way.

The Internet has made a lot of things much easier, but sometimes doing what’s harder is what’s required.  As an example (and returning to a more legal subject), Regulations.gov has made it a lot easier for the public to comment on federal agency rule-makings. But making commenting easier didn’t necessarily result in more or better public comments to proposed rules and may, in fact, result in worse comments. For example, in the Airline Passenger Rights rule, there were a large number of comments– at least 40– submitted by members of an airline passenger rights organization that were nearly all identical and did nothing but express the person’s support for the proposed rule. Such comments would have been absolutely useless to the agency and is one example of how lowering barriers to participation may not end up being a good thing. Participating in a rulemaking in any meaningful way requires some effort– if only just to understand the rule at issue– and that may not be a bad thing.

The free legal resources available may have their negative effects too. As an example, it may make people feel more confident to represent themselves pro se in any legal matters that arise, but pro se litigants are likely to be disadvantaged when facing off against a lawyer in court, not only from a lack of formal training, but because of the limited information that’s available. As we’ve mentioned in class, none of the free websites that provide case law allow for things like Shepardizing and so a litigant may end up relying on a case that was no longer good law and lose the case. This is not to say, of course, that having more legal resources available on the Internet is a bad thing, but as in evaluating any new website, we should remember that more information doesn’t necessarily mean more good information, just as lowering barriers to participation doesn’t necessarily lead to effective or meaningful participation.

Learn the Law (and other subjects) Anywhere — For Free!

No, it’s not spam. In an increasingly open world, professors from a wide range of universities have opened their class doors to anyone with internet access and a desire to learn.  One particular favorite of mine is Open Culture, which offers a wide range of courses, lectures, and discussions on the law and just about any academic subject under the sun. Some gems under the law section include “Introduction to Copyright,” taught by Professor Keith Winstein and “Environmental Justice and Human Rights in the Aftermath of Katrina” by Professor Cynthia Toms Smedley.  What makes the Open Culture site particularly versatile is that it offers a variety of delivery formats for the lectures.  For example, there are downloadable lectures on your iPod, video streams, and in a few cases, actual lecture notes.  While driving about for errands, I can easily learn a bit more about aspects of environmental law.

I put Open Culture to the test with a current writing assignment I have on extraordinary rendition in the context of the war on terror. Having little to know background knowledge on the topic, I entered “extraordinary rendition” into the search function of Open Courses and as luck would have it, the first entry was a lecture given by Professor David Cole who spoke on the topic at Stanford Law School. While this single lecture was by no means enough for me to write a good brief on the subject, it offered a good overview of the topic and touched upon important policy considerations that helped guide my further research.

Although Open Culture does a decent job of aggregating law school lectures from across the nation, the bulk of the courses remain from other disciplines such as Engineering, Art History, and even Chemistry.  Moreover, these lectures span across varying skill levels with some being from the undergraduate level while others are from graduate level.  The sheer amount of audio, video, and even lecture notes that are posted online is nothing short of incredible.  What is somewhat troubling is that while other disciplines are making great strides towards a “free culture” of information, law schools have been somewhat slower in offering their lectures free for the public.  In aggregate sites like Open Culture, the law school section is significantly smaller than comparable graduate sections like the business school section.   This remains somewhat puzzling.  While there are many free sources available for access to federal cases, it is still difficult for a lay person to piece together these materials together without significant time and effort.  And, for the casually curious, this can be a daunting obstacle.  Why is it still somewhat difficult to find reliable sources that put legal topics together in an easy-to-understand manner in a lecture or purely explanatory format?  Is it better to leave tidbits of legal information to the legal reality shows?

Lawyers, ethics, and social media

It seems like every other day there is a new article or blog post about social media and the law. The ABA Journal Magazine‘s February 2011 issue features an article by Steven Seidenberg entitled Seduced: For Lawyers, the Appeal of Social Media Is Obvious. It’s Also Dangerous is a bit better than many because it analyzes how specific ethics rules apply to the use of social media.

The article mentions the rich resource that social media can be for investigating people. All of the examples provided are from family law cases. Other examples I have come across involve workers’ compensation cases and the character of witnesses, victims, and defendants in criminal cases. I would be interested in hearing about other examples you have seen.

The ethics issue in performing this type of research is clearly how the attorney acquires the information. If the individual’s profile is publicly available, there seems to be no problem. But many times profiles are not publicly available. Then what? The easiest option is through your client, who may have access to the information. If the individual is represented by counsel, you cannot friend them–sending the friend requests violates ABA Model Rule 4.2 prohibiting communication with a party represented by counsel. The issue is stickier with a person not represented by counsel. It is clear you or your investigator cannot use false pretenses to gain access to social network profiles (ABA Model Rule 4.1(a)), but what about withholding information? For example, your investigator could send a friend request to a witness, knowing that some people accept all friend requests. Is that OK?