When I Said “Shut Up,” I Also Meant Online

September 14, 2016 (Fault Lines) — “Shut up.”  As legal advice, it’s indispensable and universal.

Criminal defense attorneys say it (often in vain, often too late) to defendants and targets of criminal investigations.  Litigators say it to their angry clients.  When a lawyer says “shut up,” that doesn’t mean you should never talk about your case again.  It means that you shouldn’t talk to police without your lawyer, because the police don’t have your best interests at heart.  It means you shouldn’t talk to your pals about your case, because one of them may be trying to work off an arrest and may repeat what you say to the cops.  They may even be wearing a wire.  It means that everything you say may be used against you – criminally or civilly – and so now, in recognition of your human frailty, you should only say things in carefully controlled circumstances after the benefit of the advice of someone who knows what is going on.

Some clients can heed this advice.  Some clients even shut up and ask for a lawyer without being told to first – though those are too far and few between.  Some people have picked up enough snippets of good advice from our culture that they hesitate before running their mouth about their dilemma.  Those people ought to be praised and emulated.

But the Internet poses a problem.  Too many people with the good sense to shut up in the real world view online speech as somehow pretend, otherworldly, not counting — as inherently risk-free.  Not so.

Take the infamous /r/legaladvice subforum of social media behemoth Reddit.  It’s a place for people to post legal dilemmas in order to solicit the input of other Reddit users who may be lawyers, trolls, or (judging by the level of legal acumen) Golden Retrievers.  It is routine for Reddit users to post civil and criminal scenarios that amount to confessions to crimes and civil wrongs.  Often these posts have enough detail to make them easily identifiable.  For instance, how many imbeciles pointed BB guns at police helicopters in San Diego recently?

Assuming this isn’t a troll post – and some of them are – this college student has just spilled details of his involvement in an incident in a manner that may incriminate him and his friends.  No lawyer would advise him to tell a story like this in public.  Rather, a lawyer would tell him that his story could be used against him civilly (in the university proceedings against him) and that the fact he hasn’t been charged with a crime yet doesn’t mean he won’t be.

If he thinks he is anonymous, he’s wrong:  he can be identified by the unique set of facts he describes, by subpoenas seeking his IP address and login information, and by clever searches of his posting history.  He might not be dumb enough to sign his name to this and hand it to the police and his university, but he might as well have done so.

This sort of online mouthing off is rampant.  In both federal and state criminal cases, I see steadily increasing signs that law enforcement monitors online coverage of events for suspects and then delves into the social media activity of defendants.  In civil cases, painstaking searches of the online activity of both parties and witnesses is now routine.  Smoking guns that once came in the form of a letter, and then an email, now come routinely in an offhand Facebook post.

Part of this is cultural lag – the Internet is omnipresent omni-influential but our grasp of its real-world impact hasn’t caught up with reality.  The informal, trollish, frivolous tone of our online interactions lull us into thinking they aren’t “real,” that they can’t trip us up as surely as they would if we said them in court in front of witnesses.  Part of it is exhibitionism; we’re in love with the sound of our own online voices and the attention our stories attract.

Then there’s the greed and mendacity.  Plenty of sites encourage people to spill their stories with the promise of matching them with the perfect lawyer.  Those sites rarely tell visitors that their stories are now public, and that law enforcement may be reviewing them.  Every year or so, despite my requests that they stop spamming me, “legal network” site LegalMatch sends me an email with a series of “leads” submitted by worried citizen.  Those citizens offer short descriptions of their cases, often descriptions that I’d love to read in court if I were the prosecutor.  Did the citizens realize that their pleas would be distributed indiscriminately?  I doubt it.  But for some reason they felt safe spilling details of their circumstances online.

When in doubt, shut up.  That applies equally online – perhaps even more so.

Ken White is a criminal defense attorney and civil litigator at Brown White & Osborn LLP in Los Angeles.  He blogs at Popehat.com.