Guidelines for Researching Potential Jurors: Minimizing The Risks Of Leaving Footprints Behind The Problem
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- Claude Maxwell
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1 Guidelines for Researching Potential s: Minimizing The Risks Of Leaving Footprints Behind The Problem Introduction As technology evolves, new ways of communicating emerge that cause existing policies and legal standards to become outdated. What s more, many rules that were written before the proliferation of the Internet have become difficult to apply simply to modern day scenarios. Googling jurors for background information during voir dire or monitoring their Internet activities during trial is a relatively new, but now often standard part of trials in contemporary courtrooms. Recent attention to the role of the Internet in jury selection by the New York City Bar Association 1 has underlined the importance of relying on the Internet during jury selection (i.e., not doing so may be akin to incompetence of counsel) at the same time that a total ban on communicating with jurors must be assured. Even inadvertent signs of an attorney s visit left behind -- footprints -- are forbidden. The purpose of this memo is to review the best ways of searching the Internet for information about jurors (prospective and sitting) without the jurors awareness. Social Media: Opportunities For Gathering Information Are Substantial But Must Be Carefully Managed Many attorneys and trial consultants now routinely use the Internet to access information about potential and sitting jurors in order (1) to add information to what is revealed in court during the selection process, (2) to identify potential issues that would disqualify a juror, and (3) to become aware when sitting jurors are revealing information about their jury service on the Internet. There are inherent ethical considerations that need to be addressed when attorneys or third parties acting on their behalf perform searches that may result in a communication (i.e., an identifying footprint left behind) between the lawyer and the juror. Intention notwithstanding, certain actions on the part of the attorney may cause a juror to learn about the search. With hundreds of social media websites around the world with different mechanisms for capturing and reporting footprints, there is always a chance that this might occur. Nonetheless, there are safeguards that can be put in place that will minimize the risk that this will occur. 2 Considerations Of Footprint Risk That Apply To Searching In Social Media Applications The searches most likely to be fruitful are those that involve searching within a social media application. Unfortunately, they also come with the highest risk of inadvertent communication (the footprint). In order for an attorney to perform such a search, she would first need to establish an account within that social community and log in using her credentials (her username and password). It is for this reason that a juror may be able to learn about someone searching for him or having viewed his information (see Figure 1). The New York State Unified Court System Rules of Professional Conduct have long prohibited any such communication or notification under Rule New York City Bar Association Formal Opinion : Jury Research and Social Media 2 Note that we are not dealing with the possibility that an attorney might decide deliberately to contact a juror on the Internet. This is simply forbidden and is easily addressed by prohibiting such actions. 1
2 Attorney Social Media Site Figure 1 From the juror s perspective, many of the popular social media platforms allow users to determine how they wish to share their information. There are options for complete privacy where only pre-approved individuals are allowed to view their information. And there are options for partial privacy where network members or friends of friends are allowed to view their information. In these instances, attorneys searches would be blocked. If, however, jurors allow more open access, attorneys might be able to access their information. Then, there are options within certain social media platforms that enable an attorney to adjust her privacy settings and restrict access to her personal profile so that a juror would only see anonymous or category-type information, rather than individualized, personal-type information about her. However, even with this option, one must be very careful since it is up to the particular social site how such anonymous information is presented. For example, LinkedIn may reference someone as Attorney from XYZ Law Firm or Partner in Legal Industry which might raise suspicion that would constitute an inappropriate communication. 3 Considerations Of Footprint Risk That Apply To Publicly Available Information On Social Media Sites Accessed Via Search Engines An alternative approach for searching jurors involves the use of publicly available information on social media sites that has been indexed using search engines such as Google, Bing or Yahoo. Users have the option to make certain information public. It is this public version of a user s social profile that is crawled and indexed by search engines. Therefore, one does not need to have an account with a social community in order to conduct a search through a search engine and view the details in a result set (i.e., all the links to sites that match the searcher s criteria) which in turn avoids the possibility of inadvertent communication with the juror (see Figure 2). Attorney Search Engine Social Media Site (Public Profile) Figure 2 A social media site that hosts a public profile of a user may internally log the IP address of the computer performing the search through a search engine after the browser arrives at the website. This information would not typically be accessible to the juror and is often ephemeral in nature. It is important, however, to understand that one must use a fully sanitized environment even when conducting such a search. Simply using a search 3 Source: 2
3 engine does not necessarily minimize the risk associated with possible juror communication. Many web browsers offer the convenience of having automatic (i.e., saved user name and password for particular sites) and persistent (i.e., user name and password may be cached even after a window is closed) logins to popular social websites. In addition, single sign-on (i.e., logging into one website will allow you to log into others automatically, such as Log In Using Facebook ) makes it easy for people searching via search engines to have instant access to all of their personal websites and applications. If an attorney performs a search through a browser while logged into the same websites that may come up in the search results, the juror may then be notified of certain actions depending on how the website is designed. Therefore, one must never use a personal computer, smart phone or tablet that is configured and personalized but rather a clean environment free from add-ons, plug-ins or cached personal information. Unless the searcher uses a clean environment device, she runs the risk of possible communication with a juror. Personal Websites, Blogs And Servers The aforementioned approach is helpful when searching for public information that may be hosted by the social media providers but does not account for personal websites, blogs or juror-managed Internet content. Accessing a website owned and operated by a juror may leave a footprint that could be maintained in an area where a skilled juror might be able to isolate an IP address and trace it back to the attorney, law firm or third party acting on the attorney s behalf (see Figure 3). Attorney Website Figure 3 The likelihood of this happening is extremely small due to the fact that all other Internet traffic to that website would be displayed in a similar manner. The juror would not only have to know how to access and search through the log files but also have a reason to suspect that one IP address is somehow special relative to all others and requires further investigation. One example could be a website that is not very active suddenly becoming popular and causing the operator to question where that traffic is coming from. An IP address can be easily pulled from a log file and used to find the source. This search usually ends up referencing an Internet Service Provider (ISP) that connects the specific computer performing the search to the Internet but often references a company or law firm that owns that connection. Residential users may appear through the ISP and regional details may accompany the inquiry and reveal the town and neighborhood where the search originated. In that instance, the juror would still have to draw the connections between the geographic location, ISP details and the attorney if no definitive identifiers are returned. 3
4 Recommendations For Solving The Problem Anonymizing One s IP Address: A supplemental measure that could be put in place involves the use of IP address masking techniques. Given that each computer on the Internet can only communicate by using a unique IP address, one option is to use a Proxy Server that acts as an intermediary for the exchange of information and Internet traffic (see Figure 4). The attorney s IP address would only be seen by the Proxy Server and the juror s website log would list the Proxy Server s address. The attorney s identity would remain private preventing any potential communication with the juror. One could argue that a skilled juror could somehow obtain information from the Proxy Server provider that could reveal the true identity of the attorney. The likelihood of that happening is very small and depends on the manner in which such details are logged and maintained. Attorney Proxy Server Website Figure 4 A second and more sophisticated option is to use a distributed network of Anonymous Virtual Tunnels to secure the attorney s privacy even further. This method passes the Internet traffic through multiple encrypted connections before reaching its destination. This option achieves the same end result of masking the attorney s address but does it in a way that makes its traceability much more difficult (see Figure 5). The issue with using a Proxy Server or a distributed network is that some sites may block you completely. These techniques are often associated with the hacking community so the possibility of denial of access is higher. The other downside to using Proxy Servers and distributed networks is that there is an inherent delay. This is because the connection may get bounced around the world. 4
5 Attorney Node 1 Node 3 Website Node 2 Figure 5 Work In A Clean Environment In our opinion, the best way to minimize the realistic risks associated with inadvertent footprints, is to work from a clean environment. In order to accomplish a clean environment, one can either use (1) dedicated computers that are always re-imaged to a clean state before every jury selection or (2) virtual machines that are computers within computers. The re-imaging or drive cloning process is a common practice within corporate IT departments to make the assignment of computers to multiple employees easier and faster. This process consists of re-formatting a computer s hard drive and installing the operating system. The appropriate software applications are then installed and configured. When the system is set up, an image of that clean environment is created using specialized software that allows an exact clone of the source hard drive to be created. Computers that are used for jury selection can be re-imaged in a similar manner after every event to ensure a clean and sanitized environment each and every time. The benefit to using re-imaged computers is that all search functionality would be performed in real time using the full hardware capabilities of the computer. However, preparation time to reimage takes several hours. The second option is to set up a virtual machine on a dedicated computer that essentially relies on an application to create a virtual computer environment within an existing one. That application would boot into an operating system that is already set up and clean. The virtual machine is stored as individual files that can be copied, moved or deleted, just as any other file on the computer. Once jury selection for one case is completed, all files associated with the virtual machine can be deleted and the original clean version can be copied and used for future engagements. Virtual machines can be copied to a computer more quickly than re-imaged computers can be created but the drawback lies in the fact that the host computer running the virtual machine has to share resources (memory, CPU, network, etc.) with the virtual environment and this may affect overall performance. Modern computers are able to handle the shared load as long as the configuration of the virtual environment is done with optimization and speed in mind. 5
6 Please note that even a search conducted from a clean environment will leave behind the IP address of the person performing the search. For those people who host their own websites and/or blogs and are technical experts, we acknowledge that we are simply not able to guarantee the same low footprint-risk that attends searches of publically available information located on social media platforms and other websites. Therefore, in order best to adhere to the concerns reflected in the Rules of Conduct, we recommend not browsing any personal websites or blogs that come back in search results. Summary The rapidly changing possibilities for communication make the inadvertent footprint problem difficult to solve completely. Our best solutions today may fall short tomorrow. Even today, our best solutions are not 100% guaranteed. Nevertheless, the clean environment method will go a long way toward concealing the identity of the attorney or trial consultant and is highly likely to prevent inadvertent communication with jurors, except perhaps for the most computer-savvy in the jury pool
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