The Arkansas Supreme Court has managed to squeeze out some nationwide attention with a decision yesterday throwing out the conviction of a teacher for having sex with an 18-year-old student.  The Arkansas Legislature, applying the principle that there's no such thing as a reaction, but only an overreaction, chose to make having sex with an adult high school student a felony.  A serious one, of course.  In this case, the guy got 40 years. 

The Arkansas Supreme Court reversed the conviction.  Of course, as a criminal defense lawyer, I am always pleased to see an appellate court do its job and reverse a conviction, particularly one that the prosecution got under an unconstitutional statute.  

But the more interesting story was how the members of the court went after each other.  The majority says of the dissent, "perplexing," "appalling," "injudicious" and "irresponsible."  The dissents characterize the majority's position as "absurd" and "preposterous."  It's as if they all morphed into Justice Scalia for purposes of this opinion.  

This kind of language would get me, at a minimum, scolded, if I were to use it in a court pleading.  For a recent example not involving me see United States v. Venable, ___ F.3d ___ (2012), n.4.  

How "private" can something be when you're sharing it with a thousand or so of  your closest friends?  Well, that's what I'd like to know, too.

I'm in a domestic relations case (see our "What we do" page to see how I feel about that) in which the wife's Facebook  page may contain some valuable information for me.  Unfortunately, even though the wife has many "friends," I'm not one of them.  Neither his  her husband, anymore.  So I served some discovery on her asking her to give me the contents of her Facebook page.  She has refused.  We're going to get to see the judge, I guess.  That is unless the whole matter gets derailed somehow, as it all so often does.

Here's what I asked for.  How is this unreasonable?

INTERROGATORY No. 17:  Please state your Facebook password for your Facebook page www.facebook.com/xxxxxxxx.  [screenname removed to protect the incredibly guilty.
*                               *                     *                     *
REQUEST FOR PRODUCTION NO. 41:  Please provide the Zip file of your Facebook page, www.facebook.com/xxxxxxxxx.  Note:  In order to do that, log onto your Facebook account by going to Account>Account Settings>Download Your Information and download your content into a .zip file.
* * *
REQUEST FOR PRODUCTION NO. 92: Please sign the attached Authorization for release of Online Data.
* * * AUTHORIZATION & CONSENT FOR RELEASE OF INFORMATION
            
Customer or Client’s Full Name                                            Date of Birth

Customer or Client’s Screen Name                                       Customer or Client’s email address


Social Security Number                                                      Driver’s License Number

This Authorization and Consent for Release of Information is to comply with the Stored Communications Act, 18 U.S.C. §§ 2701-2712, particularly 18 U.S.C. § 2702(b)(3).  Any Internet Service Provider, electronic mail provider, online social network, online dating service, or other provider of electronic data services is hereby requested and authorized to disclose any and all information about me to O. Will Laquelle, Attorney at Law, RUNNE LAQUELLE & HYDE, 8317 Ascension Rd. Little Rock, AR 72204, Telephone:  (501) 291-0369,  Facsimile (501) 246-8550, [email protected].  I authorize the release of the following:

• All stored electronic mail in my account
• All stored electronic messages in my account
• All photographs or files that I have uploaded to my account or my page
• All content of my “page” or “space.”
• Any photographs tagged with my name, whether uploaded by me or by someone else
• Any data about my online activities, including online gaming
• My downloadable Facebook information zip file.

I understand that the purpose of the release of this information is for use in litigation in the case of xxxxxxxx v. xxxxxxxxx, xxxxx Circuit Court No. xxxxx.  This understanding does not purport to limit the purposes for which the information may be used.  It may be used for any purpose.

A COPY MAY BE ACCEPTED AS A SUBSTITUTE FOR AN ORIGINAL FORM
If not previously revoked, this consent expires on the 31st day of December, 2050.
Client/Customer Signature Date
This isn't oppressive or excessive at all.  Rumor has it that the wife has over a thousand Facebook friends.  She can't have any reasonable expectation of privacy.  What do you think?  Am I out of line or what?   Do I care if you think I'm out of line if You're not the judge?  If you are the judge, "Hello, Judge."  I'm glad you're reading my blog.Will