Computers, cell phones, the internet, and social media have transformed the practice of law and criminal law specifically. My legal career is now long enough that I remember what it like before these things were in wide use.
I sometimes wonder what percentage of criminal cases and other trouble would not exist but for this technology.
Life is precious, and I want everyone to live their best lives. Sometimes the best way to prevent problems to share information that everyone should know, perhaps don’t, or maybe need a reminder.
Here are some thoughts that are not legal advice but should be common sense but sometimes isn’t:
Assume nothing is anonymous.
You should always assume that what you say and do online can be discovered even if you intend for it not to be.
There are many ways this is done. Intercepted. Found by others. Found during legal discovery after a dispute. Employers discovering it. Governmental entities creating or taking over websites and monitoring those communications. You shared it with someone. They share it with someone else.
Most of what you do online leaves digital traces. The sites you visit often know a lot about you.
I once worked at a media site where we could read everything that a person said when they forwarded an article. When I helped moderate a popular website, I could see users’ IP addresses (a numerical label assigned to devices). If someone created a trolling account, we could often see who else had that same IP address.
Your physical location can be discovered when you take your cell phone places.
You might be saying, yeah, but I am cautious about my privacy and know ways to keep my computer and online life secret. Good luck with that. No matter how careful you are, motivated people and governments can usually find it.
The First Amendment speech protections do not apply to everything you say.
You should always assume though you may be able to say what you want in America, you may not be protected from the consequences of your speech. Other people can use their own speech to say something about it.
Some laws, like defamation laws, punish you for certain types of speech.
And though the government should not punish you for speech protected under the Constitution, they sometimes try to through unconstitutional laws and enforcement of them. It is not easy to fight for your rights.
And the First Amendment applies to the government trying to control speech, not usually private entities who limit speech.
The short takeaway? First Amendment law is a specialized area, and just because you have a right to do or say something, does not mean it will be consequence-free, respected, or easily defended.
The web makes it easier to get in trouble.
People establish laws to arrange how people get along in society. Computers, cell phones, the web, and social media make it easier to get in contact with others, which also makes it easier to get in trouble with others.
There are huge lists of cybercrimes that did not exist when I started practicing law, and each year more actions are turned into crimes that did not use to be crimes.
But even beyond that, pretty much every area of the law has ways where people are their own worst enemies by what they post online or where they visit.
Strangers can misinterpret what you post online and use it to punish you.
Criminal trials are a bad way to find out the full life of a person. It is an adversarial process, with rules that restrict what evidence is seen by the jury.
In an adversarial process, the prosecutor may be able to see everything in your digital life and give it the worst interpretation in retrospect even if it has an innocent explanation.
You may know who you are as a person and what is in your heart. But outsiders may just judge the entirety of you by what words and acts they can see, and sometimes that is stuff on your computer, cell phone, and what you post online.
The first impression that people have of you is often the one that sticks with people, and that can be difficult to change. The “presumption of innocence” is given lip service when “everybody knows they’re guilty” is what reflects human nature.
For example, if you post pictures of yourself with guns, and then later use lawful self-defense, a prosecutor may try to use that to tell the jury you are an aggressive gun nut.
If you post a lot of outrageous statements that you mean as a joke, others may not read it the same way.
In the Anglo-American system of justice, historically, people were only supposed to be convicted based on what they did, not who they are as a person. That said, the legislative trend is to create more criminal exceptions to that general rule, with some statutes that likely are unconstitutional. But just because I think something is unconstitutional, does not mean that it would be easy to defend or that a judge would agree with me.
Also, social media can be used as circumstantial evidence to show elements of a crime, like whether someone intended to do an action.
The web never forgets.
If you delete digital information or social media posts after you get into trouble, it can be considered destroying evidence in some legal contexts. Often it still can be found if someone is looking for it.
That said, it may not be a bad idea every once in a while to consciously consider what you have posted in the past and whether you still think it reflects who you are as a person. If not, maybe delete your post, delete that social app.
Even then, for some things, the web never forgets, and it may be difficult to leave no digital trace.
Take care where you hang out on the web.
The best and worst part of the internet is that no matter your interests, you likely can find people to share those interests. Sometimes that leads people into trouble they would have never faced if they did not hang out in those places.
Website algorithms that are trying to keep you using their site will suggest more content to you: If you like this person or content, you will like this person or content.
This can be helpful or hurtful. These algorithms can direct you to extreme and outrageous people and content, ones intended to get people’s attention for various reasons, some recommending actions that can get you into legal trouble.
I think of this like my experience with a bad cheesecake. If you store cheesecake in the fridge next to bacon, it can take the bacon’s flavor and become bacon-flavored cheesecake. Maybe you are good with that. Maybe that is not what you want.
Sometimes you should reflect on whether the people and places you give the most attention to in both real life and on the web actually benefit your life and are a net positive.
Please live your life with informed intention.
I am not suggesting censorship. Or self-censorship. I am just reminding you how the world is, both good and bad.
What I am suggesting is that when you do and say things online, you make it an intentional, informed choice, and know the potential consequences. Some times that is an obvious choice, and sometimes it is not.
The web can be a manipulative place, and it can be easy to slowly and accidentally get caught up in bad things.