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31 Pace L. Rev. 228 (2011)
Social Media and the Vanishing Points of Ethical and Constitutional Boundaries

handle is hein.journals/pace31 and id is 230 raw text is: Social Media and the Vanishing
Points of Ethical and
Constitutional Boundaries
Ken Strutin*
Social media are extraordinary communication and
preservation tools brimming with fonts of incriminating,
exculpating, and impeaching evidence. Legal professionals
have already added online profiles, instant messaging, and
videos to the list of information sources about their clients,
their opponents, and their potential witnesses. Still, the bulk of
legal authority and ethical guidance is rooted in precedent
based on antecedent technologies, which has little resemblance
to the emerging social centers of cyberspace. No guidelines for
criminal defense discovery or investigation within networked
social spaces can be found in existing statutes and ethics codes.
One ethics committee has taken the lead on this issue in an
opinion curtailing the limits of surreptitious witness
investigation through Facebook. Defense counsel's duty to
zealously and effectively represent their clients, the practical
desire to avoid being sued for malpractice, and the promotion of
the fair administration of justice all require a clear
demarcation of the ethical and constitutional boundaries for
accessing and using data from social networking sites. This
Article will examine the dual nature of social media as a
communication conduit and information warehouse, the
meaning of privacy in this environment, and the ethical and
legal dilemmas inherent in prosecuting and defending cases
with this new breed of evidence.
* Director of Legal Information Services, New York State Defenders
Association. J.D., Temple University School of Law, 1984; M.L.S. St. John's
University, 1994; B.A., summa cum laude, St. John's University, 1981.


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