Florida Nukes the Fridge: Facebook, the Bar, and the Latest Entry in the Social Network Hijacking Saga

It’s rarely a good sign when a series grows beyond a trilogy. You end up with pod racing, fridge nuking, and Winona Ryder.  So I was happy to stop writing about privacy on social networks after the cyber-possession trilogy: the Facebook snatching government employers in Bozeman, the MySpace lurking managers of Houston’s, and the Twitter brandjacking PR Firms.  So imagine my double displeasure when I found out that the Florida Board of Bar Examiners decided to start demanding access to the Facebook accounts of red-flagged applicants.

Damn it, FBBE. This is why we can’t have nice things.

According to floridabar.org, the FBBE rejected a requirement that all networking “sites be listed and access granted to the board.” As evidenced in its final report, it seems that the FBBE realized that if all applicants knew their Facebook accounts would be rifled through, then applicants would “likely . . .  delete any derogatory material before staff has the opportunity to review it.” Wait, you are telling me that if everyone knows that a private site no longer protects privacy, then they might remove private information from that site? Genius! Someone get the Nobel committee on the phone.

Instead, the FBBE adopted a policy of considering case-by-case* Facebook hijacking for:

• Applicants who are required to establish rehabilitation under Rule 3-13 “so as to ascertain whether they displayed any malice or ill feeling towards those who were compelled to bring about the proceeding leading to the need to establish rehabilitation;”

• Applicants with a history of substance abuse/dependence “so as to ascertain whether they discussed or posted photographs of any recent substance abuse;”

• Applicants with “significant candor concerns” including not telling the truth on employment applications or resumes;

• Applicants with a history of unlicensed practice of law (UPL) allegations;

• Applicants who have worked as a certified legal intern, reported self-employment in a legal field, or reported employment as an attorney pending admission “to ensure that these applicants are not holding themselves out as attorneys;”

• Applicants who have positively responded to Item 27 of the bar application disclosing “involvement in an organization advocating the overthrow of a government in the United States to find out if they are still involved in any related activities.”

Let’s briefly rehash why this is not okay.  First, the FBBE will have access to information it could never legally ask for: sexual orientation, religious affiliation, etc. By forcing applicants to bare their digital souls, this policy welcomes all sorts of discrimination.  Second, the Facebook friends of the digitally possessed did not sign up to have their privacy violated. I’m willing to bet that applicants will usually be law students, who (guess what) have other law students as their friends. Isn’t there a great possibility that examiners might want to discover the secrets of these additional applicants, even those that have not been red-flagged?  Third, the terms of service of most social networks prohibit the very behavior the FBBE wants to engage in (see Facebook's terms).

I do not want to worry that my Facebook friends are possessed: by employers, by government minders, by guild representatives. Is all this really necessary? Surely these types of undesirable applicants existed before social networking sites came into existence. Why didn’t the FBBE move to mandate that all applicants turn over their written journals and diaries? Perhaps all photo albums could have been collected? An index of their record collection? Perhaps the FBBE has not asked red-flagged applicants for these traditionally personal items because we would all view such an invasion of privacy as grotesque auto de fé

I’ve said it before, this sort of voluntary/mandated cyber-possession should be illegal. Divorced of context, a joking picture could ruin an applicant’s legal future. Milan Kundera ‘s The Joke depicts a society where a promising young man is ruined for writing “Long Live Trotsky!” on the back of postcard. Please don’t let the FBBE do the same for a gonzo applicant who writes  “As your attorney, I advise you to take a hit out of the little brown bottle in my shaving kit” (possibly a hint at improper representation AND substance abuse! Double Trouble!).

* This sentence now more clearly reflects that the FBBE will make case-by-case determinations of Facebook invasions.

(Andrew Moshirnia is a second-year law student at Harvard Law School and a CMLP blogger. He hopes that this series doesn’t see a fifth installment, because then he’d have to start writing about clones or cross-overs.)


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