Applying Model Rule 4.2 to Web 2.0: the problem of social networking sites.

• Author: Ostolaza, Yvette

Cite as 11 J. High Tech. L. 56 (2010)

1. Introduction

   Model Rule of Professional Conduct 4.2 ("Rule 4.2") is the current version of the profession's "no-contact" rule. (1) It generally prohibits an attorney from communicating about the subject matter of a representation with a person that the attorney knows to be represented by another attorney in the matter. (2) Although its application has historically been rather straightforward, recent developments in online communication have complicated matters. (3) In particular, the surge in popularity of dynamic, user-driven websites that employ complex privacy mechanisms--websites such as Facebook.com ("Facebook") and MySpace.com ("MySpace")--presents a new challenge to courts and ethics committees seeking to interpret Rule 4.2: with millions of individuals now maintaining profiles on these, or similar, websites, how far can an attorney go in an effort to obtain information about a represented party from one of these sites? (4)

   In the past, authorities that have attempted to apply Rule 4.2 to websites (and recently, public pages on social networking sites) have done so by holding that they are the equivalent of a book or magazine article, reasoning that this online conduct should be judged by the same rule as its offline counterpart. (5) And initially, this approach made sense; the first wave of online content generation and communication was largely static and inherently public in nature, (6) such that the creation of a personal website was at least roughly analogous to the offline publication of materials. (7)

   But things have changed. (8) The paradigm for Internet usage today is no longer dominated by static, proprietary websites. (9) Instead, the second wave of web design--often referred to by the marketing term "Web 2.0" (10)--is marked by collaborative content generation on user-friendly platforms. (11) Users do not have to know any coding language, understand FTP, or even invest the time to learn the interface of a simple web design tool; they simply have to input text into boxes, and their web presence is established. (12)

   In many cases, this takes the form of creating a profile on a social networking site such as Facebook. (13) The way that Facebook and other social networking sites have lowered the barriers to online publication dramatically impacts their ability to be compared to an offline publication; the way a user with minimal computer skills can quickly publish content on a social networking site bears little relation to the process of generating a static website during the "Web 1.0" era--let alone the process of publishing an offline book or article. (14)

   More importantly, these social networking sites offer complex privacy structures that users can choose to implement to protect their content from prying eyes. (15) Rather than making a profile public or only available to a pre-selected few, social networking sites also allow users to create more nuanced privacy settings that grant or deny access to other users based on the settings they have in their own profiles. (16) For example, a user can create a privacy setting that only allows access to other users who have verified that they work at a certain company by registering a company e-mail address with the social networking site. (17) There are no such books or magazines that employ this kind of privacy structure; these sites create scenarios that simply do not exist in the offline world. (18)

   Thus, as the nature of online communication continues to grow increasingly complex--and by doing so, moves even further away from resembling offline publishing--a different analysis is necessary in order to promote a consistent, predictable approach to the application of Rule 4.2. (19) In this Article, we argue that the observation exception to Rule 4.2 supplies that analysis. (20) To that end, Part I of this Article describes and defines social networking sites, what kind of profiles they contain, and how they can be used in litigation. (21) Part II discusses Rule 4.2 and how it has been applied to websites (including public social networking profiles) in the past, arguing that this approach does not adequately account for the unique situations presented by recent trends in online content, and that the observation exception to Rule 4.2 provides the appropriate analytical framework. (22) Part III applies the observation exception to social networking profiles, concluding that "public" and some "network" profiles fall under the exception, while other "network" profiles and all "private" profiles do not. (23) Part IV concludes.

2. Social Networking Sites: Defined, Profiles Types, and Usage

   This Part introduces the concept of a social networking site and provides a definition of the term. It then categorizes social networking profiles into three categories based on the type and degree of privacy controls that a user has chosen to employ. Finally, this Part describes the potential uses that social networking sites have in litigation.

   1. Social Networking Sites: Defined

      For purposes of this Article, we define a "social networking site" as a web-based service that allows individuals to (1) construct a public, semi-public, or private profile within a bounded system ("social networking profile"), (2) articulate a list of other users with whom they share a connection, either prior to the creation of the profile or by virtue of the social networking site, and (3) view and traverse their list of connections and those made by others within the system. (24) Users log on to social networking sites to articulate, make public, and expand their existing, offline social and professional networks. (25) Depending on the social networking site, users can create profiles with background information, post photos, provide short updates about what they are doing at that time, link their profile to others, join groups or networks, and view and track the profiles of other users. (26) These features can also be used for business and marketing purposes. (27) Social networking sites are generally free, (28) although some sites charge for certain features. (29) It would be difficult to overstate the popularity of social networking sites, particularly considering their relative youth. (30) These sites are part of the "Web 2.0" concept, a marketing phrase coined after the crash of the dot-com bubble in 2001 that predicted the future of Internet business as driven by dynamic, platform-based, user-driven and collaborative content--as opposed to the static, controlled, and pre-packaged nature of pre-crash web content. (31) Indeed, neither Facebook nor MySpace existed seven years ago. (32) Today, they are the second (33) and forty-seventh (34) most-popular websites on the Internet, with Facebook alone claiming over 500 million active users. (35) Similarly, LinkedIn.com ("LinkedIn"), the most popular social networking site focused on business networking, was launched in May 2003; (36) it currently has over ninety million registered users, (37) and is the twenty-second most popular website on the Internet. (38)

   2. Types of Social Networking Profiles

      Because of their dynamic nature and variety of uses, social networking profiles can be categorized in a variety of ways. For example, certain social networking sites now delineate between personal profiles and those maintained for a business; (39) others offer special profiles for certain professions. (40) Here, the relevant factor is the amount and kind of privacy measures a user has chosen to apply to their profile. (41) Although social networking sites vary in how they allow users to protect their profiles from prying eyes--and privacy policies and measures tend to change rapidly, both in granting users more protection and taking it away--user profiles can be categorized into one of three types based on the privacy controls that have been applied to their accessibility. (42)

      1. Public Profiles

         The first category is the public profile. (43) We define a public profile as a social networking profile that has no privacy controls applied to it, and which can be accessed by any member of the public. (44) Some social networking sites require individuals to register with the site before they can view a public profile, while others allow any Internet user to view the profiles directly. (45) They can be easily found by searching the relevant social networking site, and they are generally indexed in full by search engines. (46) This is the default setting for some sites upon sign-up. (47) And although it is generally easy for a user to adopt more stringent privacy settings, many do not-Facebook estimated in 2009 that 80% of its users did not enact any privacy controls. (48)

      2. Private Profiles

         At the opposite end of the spectrum is the private profile. We define a "private profile" as a social networking profile that can only be viewed by another user who has been individually granted access by the profile's owner. (49) That is, anyone who wishes to view a private profile must first contact the profile's owner for permission. (50) This is typically done via a "friend request," which is an automated message that a user can send to another user to request access to their profile, typically allowing the recipient to view the sender's profile in return; in some cases, the recipient will be granted automatic access to the sender's profile for a limited amount of time without having to approve the friend request in order to help them determine if they should accept the request. (51) Private profiles may or may not come up in search results from the social networking site's internal search engine, and may or may not be indexed by Internet search engines at large. (52) But if they can be reached via search, only a limited search result will be viewable; the actual profile will be blocked from view unless the would-be viewer requests permission from the profile owner. (53)

      3. Network Profiles

         The final category...