Monthly Archives: May 2015

Evidence of Life on Facebook: Appearing happy on social media may be used against you in a court of law.

Emoticon evidence in a court of law
If people who have experienced trauma aren’t posting sad emoji all the time, it doesn’t necessarily mean that they’re over it; it might just mean that they’re savvy.

Photo illustration by Natalie Matthews-Ramo. Photo by iStock/Thinkstock.

In 2006, a Long Island high school teacher pleaded guilty to third-degree rape and endangering the welfare of a child. Danny Cuesta admitted to preying on a 15-year-old sophomore who attended the school where he taught Spanish. He lured her into a private school office to “make copies,” took her to motels for sex, and posed as her personal “tutor” as an excuse to visit her at home. Cuesta’s victim—known in court filings as “Melissa”—spent four days on the stand; two other girls came forward to testify that the teacher had assaulted them, too. Cuesta wassentenced to 15 months in jail. Then, Melissa sued Cuesta, the school district, and school officials, seeking damages for, among other things, “repeated sexual injury and assault,” “nightmares and sleep deprivation,” “emotional distress,” “alienation of affections,” and “loss of enjoyment of life.”

Soon, lawyers for the school district started poking around Melissa’s Facebook feed. Melissa’s account was mostly locked to outsiders, but some pictures were visible: Melissa hanging out with her boyfriend, Melissa working at a veterinary hospital, Melissa rock climbing, Melissa out drinking with friends. They even found a second Facebook page, a joint account run by Melissa and her boyfriend. Melissa’s blithe Facebook activity didn’t exactly square with her contention, in a deposition, that she suffered from “serious trust issues with everyone” and was “struggling” in her relationship with her boyfriend. Nor did it support her claim of “loss of enjoyment of life,” which one judge has defined as the loss of “watching one’s children grow, participating in recreational activities, and drinking in the many other pleasures that life has to offer.” Rock climbing is a recreational activity; drinking with friends is one of life’s pleasures, after all. Last month, the court ordered Melissa to hand over every photograph, video, status update, and wall message ever posted on her Facebook accounts so that the school district may search for more clues that Melissa is secretly thriving.

In this time of social media–assisted public shaming, we’re trained to fear the nasty note that lies dormant in our feed for days, months, or years before it jumps off the platform and kills our reputations. But Melissa’s case represents an even trickier type of social media snare: the post that makes you look too good for your own good. These days, victims of workplace discrimination or horrific accidents or sexual assaults who seek damages for emotional distress or loss of enjoyment of life can now expect their online profiles to be scraped for evidence that they very much enjoy their lives—or at least, that they appear to on their Facebook pages.

Consider the case of Kathleen Romano, who was working at her desk at the Stony Brook University Medical Center in 2003 when her office chair collapsed. Romano sued the chair’s manufacturer, Steelcase, alleging that the chair had been defective and that its collapse caused her severe back injury, confined her largely to her home, and led to a loss of enjoyment of life. After clicking around Romano’s social media properties, Steelcase’s attorneys noticed that Romano’s Facebook profile photo showed her smiling—outside her home. And her MySpace postings were peppered with suspicious emoticons: smiley faces. “We figured something smells here,” a Steelcase lawyer said later. “We wanted to see what else was in there.” In 2010, the court granted Steelcase access to private corners of Romano’s social media presence to dig for more smiles; 12 years after the chair incident, Romano’s suit remains in litigation. Civil cases built on injury victims’ tales of woe have since been undermined by Facebook updates showing the alleged victims kayaking, riding a motorcycle, or performing a keg stand.

Even the most banal of Facebook sentiments can now be used against you in a court of law. A former general manager of a Burbank, California, Home Depot sued the company for gender discrimination in 2011, claiming that she’d been wrongly fired and experienced anguish, anxiety, and isolation from friends as a result. So Home Depot dredged up dozens of posts on her Facebook wall from friends wishing her a happy birthday. Would a truly isolated woman get so many birthday wishes on Facebook? The case was settled out of court.

Facebook is a particularly lush resource for fending off civil suits. But peppy social media postings have been used as ammunition in all kinds of cases. In 2004, a 19-year-old Connecticut woman lost control of her car while driving drunk and killed the friend sitting in her backseat; she served a year in prison, then got hauled back to court in 2009 for violating the terms of her parole. Facebook photos of the woman drinking beer at a Yankees game and partying at the Waldorf weren’t key to her second conviction, but the judge leaned on the images during sentencing. “Where is the remorse?” he asked. “Every one of these pictures looks like you have forgotten about what happened.” (He locked her up for three more years.) In their murder case against Casey Anthony, Florida prosecutors proffered Facebook photos of Anthonysmiling and dancing at a club following the “disappearance” of her daughter, Caylee, a hint that Anthony’s state of mind at the time conformed to that of a killer, not a caretaker. (That one didn’t stick.) And last week, Paul Nungesser sued Columbia University, accusing the school of being “an active supporter” of a campuswide “harassment campaign” against him by allowing Emma Sulkowicz, who has publicly accused him of raping her, to lug her dorm mattress around campus as a way to keep the allegations alive. Nungesser claims that he didn’t assault Sulkowicz, and in his suit produces flirty and friendly Facebook messages that his lawyers say demonstrate how “Emma’s yearning for Paul had become very intense” and how “when Paul did not reciprocate these intense feelings … Emma became viciously angry.” (Sulkowiczpreviously told Jezebel that she had strategically played nice in messages following the alleged assault in a bid to get Nungesser alone and confront him about the incident.)

Most social media users aren’t feigning friendliness in such a calculated sense. But social media sites can subtly promote sunny sentiments, which can be a problem for parties who need to prove that they are lonely, sad, and suffering. A controversial study published last year in Proceedings of the National Academy of Sciences of the United States of America tinkered with the Facebook feeds of hundreds of thousands of users and found that “emotional states can be transferred to others via emotional contagion, leading people to experience the same emotions without their awareness.” In other words, a user’s emotional performance on social media may be more influenced by the platform’s dynamics than by her own feelings. And on Facebook, relentless positivity is the dominant affect. In a 2012 paper published in theVanderbilt Journal of Entertainment & Technology Law, Kathryn R. Brown distilled recent research on social media psychology and found that users selectively screen photos to present themselves as “attractive” and “having fun,” and that they tune their personae to come across as “socially desirable,” “group-oriented,” and “smiling.” (But you didn’t need a study to tell you that.) Meanwhile, “individuals are unlikely to capture shameful, regrettable, or lonely moments with a camera.” As my Slatecolleague Katy Waldman noted in 2012, people don’t like people who post negative things on Facebook. If people who have experienced trauma aren’t posting sad emoji all the time, it doesn’t necessarily mean that they’re over it; it might just mean that they’re savvy.

On Facebook, “the self-presentation, the photos, the things you say, the types of things you post about—they’re all very positive,” says Jeffrey Hancock, a professor in the information science department at Cornell University. “How are you doing? Here’s my baby. Happy birthday! The vast majority of Facebook is certainly more positive than your actual life is.” But Hancock cautions that projecting positivity to friends is nothing new. “If you think about how we present ourselves in ‘real life,’ when we talk to people, we talk about the good times we’re having and the good feelings we’re feeling,” Hancock says. “It is a very old and very deep human phenomenon.”

It’s no stranger in the courtroom, either. “In the old days, [a party] would try to disprove loss of enjoyment of life by photographs and written records,” like “a credit card statement that shows a trip to Disneyland,” says Ann Murphy, a law professor who teaches evidence at Gonzaga University School of Law. Sometimes, attorneys “would hire a private investigator as well, who might see the plaintiff out gardening or having a party.” Facebook just made the PI’s job “a lot easier.”

Still, Facebook posts and tweets can enjoy a particular veneer of credibility in court. They’re contemporaneous observations, straight from the horse’s mouth, permanently recorded for posterity, and easily verifiable. In a 2012 paper published in the Connecticut Law Review, Allison Pannozzo notes that some legal scholars have argued that “evidence from email and [social media] has a greater chance of unfairly prejudicing and misleading a jury,” because these postings deceive from two directions: The ease of social media encourages exaggerations and falsifications, but the “faux intimacy” fostered by the platforms convinces jurors that they’re believable—that Facebook posts are just like “utterly personal expressions written in private diaries.”

“It’s becoming so standard when you’re involved in a lawsuit for the other party to say, ‘give us all your social media activity’ ” from a certain period of time, says Kathryn Brown, the author of the 2012 Vanderbilt paper (and now a labor and employment attorney).* And judges oblige, partly because “the average judge is, honestly, someone who’s older and might not be aware of the nuances of social media,” Brown says. But in recent years, a couple of courts have started taking a more nuanced view. In one 2013 decision, U.S. Magistrate Judge A. Kathleen Tomlinson of the Eastern District of New York restricted discovery of a plaintiff’s social media activity to posts that made a direct reference to her emotions and potential stressors. “The fact that an individual may express some degree of joy, happiness, or sociability on certain occasions sheds little light on the issue of whether he or she is actually suffering emotional distress,” Tomlinson wrote, citing Brown’s paper. After all, “a severely depressed person may have a good day or several good days and choose to post about those days and avoid posting about moods more reflective of his or her actual emotional state.”

How much our social media activity reflects our offline life is hard to know. In an early Canadian case where social media was offered as evidence of a plaintiff’s emotional state, Fotini Kourtesis sued a man who rear-ended her car as she drove to work in the winter of 2000. Kourtesis, who was 18 at the time of the crash, claimed the accident left her with chronic pain and a loss of enjoyment of life. She could no longer dance with her family like she used to, she said, or wrestle with her brother as she once did. When the court was shown Facebook pictures of Kourtesis dancing and being lifted into the air by her brother, post-accident, she testified that the triumphant scenes had been carefully posed for the camera. But the judge ruled that it didn’t matter whether the pictures were faked because “even if posed, the photographs were taken in an active social life setting” and constitute evidence that Kourtesis “enjoys life.”

Does fake-dancing for Facebook now constitute a life pleasure on the level of actually dancing? Does a “Happy Birthday” posted to Facebook signify as strong a social connection as a ringing phone or a knock on the door? More and more, the courts say yes. Part of the difficulty posed by these cases is that our basic understanding of what it means to cultivate a relationship or experience the breadth of life’s pleasures is evolving rapidly, even as these early cases continue to inch through the courts. Romano’s chair collapsed the year MySpace launched; Kourtesis was rear-ended by that car before Facebook existed. Now, a bedridden accident victim can put on a brave face with the help of an Instagram crop; a worker who’s lost her job can afford to share an emoticon with a friend; a young woman who can’t dance like she used to still looks lithe in a Facebook upload. Social platforms offer seemingly endless evidence that we’re all enjoying our lives, online. It would be a mistake for courts to assume that that’s all there is


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A Long Way From Wax Cylinders, Library Of Congress Slowly Joins The Digital Age

Gene DeAnna is curator of the National Jukebox project, which is an online collection of more than 10,000 pre-1925 recordings.

Gene DeAnna is curator of the National Jukebox project, which is an online collection of more than 10,000 pre-1925 recordings.

Brian Naylor/NPR

Gene DeAnna sits at a computer next to a vintage Victrola, appropriate for his job as curator of the National Jukebox project.

It’s an online collection of some 10,000 pre-1925 recordings, made acoustically, without any electrical amplification. DeAnna points to a photo on the jukebox’s Web page.

“You can see in this picture here that they gathered the orchestra around a great big recording horn and behind the curtain there is a cutter that is cutting the recording into a wax master,” he said.

And 90 years later, these primitive recordings can be heard right on your laptop with a few mouse clicks.

The Library of Congress has a trove of online content. You can hear Louise Bogan recite a poem:

As you lay in sleep I saw the chart of artery and vein running from your heart.

Or listen to a recording of a former slave, Fountain Hughes, recalling his life.

“It’s the same as if we were in jail now,” he told a library folklorist. “I couldn’t go from here across the street or I couldn’t go to nobody’s house without I have a note or something from my master.”

The Library of Congress is the nation’s oldest cultural institution, and the largest library in the world. Its mission is broad, everything from providing research to members of Congress, to administering copyright laws, to maintaining a collection of some 160 million items. It has put a quarter of those items online. Critics say the library needs to move more aggressively to adjust to the digital age.

The Library of Congress was established in 1800. Standing in front of the library’s collection of Stradivarius instruments, David Mao, deputy librarian of Congress, said the library’s mission is “to acquire, preserve, and maintain, and make available for future generations the intellectual creativity of the American people.”

Preserving it all is a challenge. Technology continually evolves, from wax cylinders to floppy disks to .wav files. And keeping up is a challenge, too. Congress has cut the library’s budget by 8 percent over the past five years.

At the same time, a recent Government Accountability Office report criticized the library, and by inference, the 85-year-old librarian of Congress, James Billington, who was appointed by Ronald Reagan. The GAO says the library “does not have the leadership needed to address” several IT related problems, including managing its IT resources.

Deputy Librarian Mao says the library takes the report to heart, and just sent Congress its plans to improve its IT operation. Mao says the library is “making a lot of progress on working on the things that were identified in the GAO report, and I believe that we’re moving ahead in a very good direction that will help lead the Library of Congress into the 21st century.”

This sign, which the NAACP used to hang outside its headquarters every time a person was lynched in the United States, is part of a Library of Congress exhibit documenting the civil rights movement.

This sign, which the NAACP used to hang outside its headquarters every time a person was lynched in the United States, is part of a Library of Congress exhibit documenting the civil rights movement.

Brian Naylor/NPR

Mao says the library hopes to hire a permanent chief information officer soon, something many say the library should have done years ago.

In the meantime, among its many roles, the library is a Washington tourist attraction. Currently on exhibit is a collection of historic papers, photographs and other items documenting the civil rights movement.

Curator Adrienne Cannon pointed out the exhibit’s showstopper, what she calls the NAACP’s lynching flag. It’s a big banner that reads “a man was lynched yesterday.” Cannon said “every time a person was lynched in the United States the NAACP hung this flag outside its headquarters in New York City.”

Cannon calls the records in the exhibit and throughout the Library of Congress “living testimony; to what we were, what we are now and to what we are struggling to be.”


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Income inequality begins at birth and these are the stats that prove it

Children riding home from school on a school bus watch as Baltimore residents celebrate at the corner of West North Avenue and Pennsylvania Avenue after Baltimore authorities released a report on the death of Freddie Gray on May 1, 2015 in Baltimore. Photo by Win McNamee/Getty Images

Editor’s note: In this essay, Economist John Komlos argues that we must look more deeply at the recent events in cities like Baltimore, New York and Ferguson, Missouri, and consider the socioeconomic plight of young black men in America, especially in neighborhoods where educational attainment is low and poverty is high. Komlos is the author of “What Every Economics Student Needs to Know and Doesn’t Get in the Usual Principles Text.”

Even conservative Republican Alan Greenspan, an ardent advocate of free markets, is beginning to see inequality as a fundamental threat to the system and admits that, “You cannot have the benefits of capitalist market growth without the support of a significant proportion, and indeed, virtually all of the people; and if you have an increasing sense that the rewards of capitalism are being distributed unjustly the system will not stand.”

Well, the system was not standing very sturdily during the days of rage in Baltimore or in Ferguson. So we need to look beyond the ugly surface manifestations of young black men being shot in the back or suffocated and consider the deeper socioeconomic plight of this demographic in this country in 2015. The truth of the matter is that people of color are disadvantaged by the current socio-economic system from the very beginning of their lives.Problem no. 1: babies born in low-income neighborhoods will go to bad schools. Problem no. 2: bad schools mean low educational attainment. In Baltimore, 22 percent of African Americans have no high school diploma compared to 15 percent of whites. At the national level, the ratio is 2:1 (15 percent to 7.6 percent).

What is the system that keeps people of color at the lower echelons of the socio-economic hierarchy? It begins at birth.

Problem no. 3: low skills mean no jobs. The inconvenient truth is that the unemployment rate among African Americans is 10.4 percent — twice that of whites. But that is not the whole picture. The underemployment rate is more relevant, because it reflects more accurately the real amount of pain in the system. The underemployment rate includes people who are so discouraged that they are not looking for work any more or they no longer have gas money to look for a job. This group — 11 percent of the labor force at the national level — also includes those who would like to work full time but can only find part time jobs. That seems bad enough but the blunt truth is that among African Americans the underemployment rate is a whopping 22 percent. (By the way, it is revealing that I had to calculate this number myself because it is kept secret by the statistical bureaus: you won’t find it on any of their internet sites or published statistics. It is too pessimistic for the official circles, so better keep it quiet.)Think about this 22 percent for a moment: that means that one out five African American does not have a full-time job and are scraping by with the skin of their teeth. They are the excluded. No more hope left for the American dream. There is more sad news: among African American teenagers, the unemployment rate is 25 percent which means that the underemployment rate is probably in the 40-50 percent range. Plenty of time to throw stones at the system or at their representatives.

Problem no 4: of course, no jobs means no incomes. In Baltimore, 12 percent of African American families have total incomes less than $10,000 compared to just 4 percent of whites. Poverty rates in Baltimore are also much higher among African Americans than among whites: 28 percent versus 15 percent. No wonder that a third of African American households had to rely on food stamps to keep body and soul together in contrast to just 9 percent of white families. In seven St. Louis County neighborhoods, with the median family income a paltry $21,000, half the population is at or below the poverty line. (The federal poverty rate for a family of four in the lower 48, plus D.C., is $24,250.)

In Baltimore’s census tract no. 1504 — near New Shiloh Baptist Church where the funeral of Freddie Gray was held — 30.6 percent of households have incomes less than $15,000.

At the national level 13.9 percent of African American families earn less than $20,000. The comparable share among whites is 5.5 percent. And even more depressingly, the median income has been falling since the year 2000. Among African American families, the decline has been $3,500 — the same as among whites — but in percentage terms the decline is 8.4 percent compared to 5.3 percent among whites. In 2000, the median income among African American families was 63 percent of white incomes whereas by 2009 it declined to 61.4 percent.In Baltimore’s census tract no. 1504 — near New Shiloh Baptist Church where the funeral of Freddie Gray, the man whose spine was broken while in police custody in April, was held — 30.6 percent of households have incomes less than $15,000. In nearby tract no. 1506, 43 percent of households earn less than $15,000. This race-based poverty gap also shows up in Ferguson. In census tract number 2119 near Ferguson, 30 percent of households had annual income below $15,000. (Tim Cook, CEO of Apple Inc., earns as much every morning before noon, including weekends and holidays.) And six miles south of Ferguson, there are dozens of census tracts where the median family income ranges from $100,000 to $163,000. To the black residents of Ferguson, proximity to this evidence that the American Dream is a reality for whites must be a chronic irritant in the best of times, an unbearable provocation in the worst. Under such socio-economic conditions it is difficult to sustain functional families and vibrant communities.

Problem no 5: no income means no wealth, not surprisingly. African Americans are heavily represented among the have-nots of this country. There are 15 million African American households. The poorest 3 million, or 20 percent, of them have no wealth whatsoever, just debt. The median net worth is -$2,500 and the mean net worth is -$21,000. This is worse than among the Russian serfs: they at least had no debt! Among whites, the situation is not very different among the bottom 20 percent. Now let’s look at the next 20 percent, or next 3 million households. Now we get into positive territory but both the median and mean are less than $700. That’s all. Taken together the mean value of the bottom 40 percent of African American households is negative: -$10,000. So the bottom 6 million households still have nothing but debt on average and all in all fully half of the African American population has absolutely no wealth at all — no skin in the game whatsoever. In contrast, in 2004 there were 2,728,000 people in this country with assets worth in excess of $1.5 million. Their total net worth was an astronomical $10,201,246,000,000, that’s $10 trillion.

What is the system that keeps people of color at the lower echelons of the socio-economic hierarchy? It begins at birth. Most of those who happen to be born on the wrong side of the tracks are trapped. So many of them eventually end up on the wrong side of the law or disappear in gang violence. That is why there are 1.5 million missing black men in this country today. We have to realize that children are not responsible for the schools in the neighborhood in which they happened to be born. They chose neither their skin pigment nor their parents. So they can hardly be held responsible for the poverty of their parents or for their dysfunctional neighborhoods. Although they deserve better, they will not get the proper education for a knowledge economy and once they become adults they join the ranks of the have-nots, because there will not be any jobs for them. The employers are not responsible for not hiring those who are unqualified, unskilled, uneducated and without diplomas. So that is the real existing system of Capitalism with a poverty trap. It is against that system that people were throwing rocks. But how do you throw rocks against a system?

This inhumane system will not change until the American people realize that this system is fundamentally and deeply unfair and elect representatives in Congress with a vision to create a capitalism with a human face. All we have to do is to clean up the slums, provide top notch schools capable of competing with those in Finland, bring some jobs back that have been exported to distant shores, and we should be in good shape. No more food stamps, no more welfare payments, no more Medicaid, no more expenditures on incarceration and lower expenditures on the police force! It will be an America in which the determining factor of the life chances of newborns will not depend on the happenstance of the zip code of their birth.


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Event: Energy and Education from Uganda to the US Tuesday, May 19th at 7pm


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Posted by on May 1, 2015 in Events


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