Privacy 3.0: Delaware Bench and Bar Recap

I had the honor of serving as moderator for the CLE program at Delaware’s Annual Bench and Bar conference,the largest annual gathering of lawyers and judges. The program was titled, Privacy 3.0: Legal and Ethical Implications in the Courtroom, in the Workplace, and in Public. I was amazed at the quality of the presentations and speakers.

Privacy In the Courtroom: Jurors
The first session, Privacy in the Courtroom, was presented by two super-stars. First up was Thaddeus Hoffmeister, whose blog, Juries, is, hands down, the go-to source for the latest news relating to the impact of new technology on jurors. Thaddeus led a fascinating discussion about the privacy rights of jurors. Some of the questions that he raised were:

Do lawyers have a duty to conduct online research about potential jurors?
Do lawyers have a duty to monitor jurors’ online activity once empaneled? What constitutes “contact” in this context? For example, if you follow a juror on Twitter and he gets an email notification of it, this would be considered “contact” and you’d be running afoul of the ethics rules. And, finally, when must a lawyer disclose to the other side and to the court information that the lawyer finds that indicates juror online misconduct?

Thaddeus’ presentation was amazingly current. Several attendees noted that he discussed several cases and opinions that were issued in the past two weeks! To learn more about these cutting-edge topics, check out his top-notch blog.

Privacy In the Courtroom: Journalists
Next up was Sean O’Sullivan. Sean has been reporting on Delaware’s federal and state courts for more than a decade. Although Thaddeus was a tough act to follow, Sean absolutely rose to the challenge. In fact, Sean really impressed me–not only is he an all-star reporter but, apparently, an equally outstanding public speaker! Sean spoke about the current rules (written and unwritten) for reporters. He addressed the following issues:

Should there be live blogging and tweeting from the courtroom? If yes, should it be considered a privilege limited to journalists? And, if so, who is a “journalist” in today’s world of new media?

Sean told attendees about an interesting development in the Sandusky trial. As reported in the major news networks late last week, the judge in the case announced that he would permit tweeting from the courtroom but with the caveat that the tweets could not include actual quotations.

Journalists moved the court to clarify what that meant–surely the court did not mean that only inaccurate quotations? Did the court mean that journalists had to paraphrase any tweets? In response to the motion, the court changed its mind and ordered that it would not permit live tweeting from the courtroom after all.

Further proving how current the speakers were, Thaddeus has written about the juror-investigation issue in the Sandusky trial.

Privacy In the Workplace
I was lucky enough to co-present this session with Steve Hirschfeld. Steve is the CEO of the Employer’s Law Alliance, the world’s largest network of employment and labor lawyers. Steve is an incredible speaker but it was his international experience is what really made the session outstanding.

Steve and I talked about the challenges facing employers that have led them to consider the use of social media, particularly in the hiring process. Then we reviewed some of the several ways employers are using social media as cyber-screening tools and gave our (somewhat diverging) thoughts on the pros and cons of those tools. In that context, we reviewed the legal implications of those tools. And, finally, we discussed the recent movement in several states to legislate these strategies, including, as you may have guessed, my thoughts on the unfortunately worded Delaware effort in this regard, H.B. 308.

Privacy In Public
The speakers for this session were the A-listers of the program. Sharon D. Nelson and John Simek of Sensei Enterprises presented a captivating story about how law enforcement used digital forensics to catch the Craigslist killer. Both Sharon and John are real pros behind the podium and everyone was so riveted by their storytelling that we hardly noticed how much substantive knowledge they had imparted.

Undoubtedly, my biggest take-away from their presentation was that there is no privacy in public–particularly when the government wants to know what you’re doing, where you’re doing it, and when you’re doing it. For additional doses of disturbing reality regarding the lack of privacy, check out Sharon’s award-winning blog, Ride the Lightning.

A Round of Applause
I can’t thank the speakers enough for their participation in yesterday’s event. It was a tremendous success as a result of the quality of all of the speakers who were so generous to donate their time and travel to Delaware for the event. Thanks, also, to all of the attendees for their insightful questions and discussion after the CLE.

Contact Information