(If you’ve seen Robert Dubose’s talk about “Legal Writing for the Rewired Brain,” you may remember the striking F-shaped reading pattern, showing how readers’ eyes skipped across a web page. That was Jakob Nielsen’s study.)

Nielsen’s results:

[E]ven the current generation [of e-reader devices] is almost as good as print in formal performance metrics — and actually scores slightly higher in user satisfaction.

The finding that’s grabbing headlines, however, relates to raw reading speed. They note the study’s finding of a slight speed edge to paper books compared to the iPad or Kindle.¹

But the buried lede might be that all three of these handheld devices were vastly superior to reading on a computer monitor. The iPad, Kindle, and paper book scored a 5.8, 5.7, and 5.6 (out of 7.0) for user satisfaction; the PC monitor scored a 3.6.

A note for attorneys writing electronic briefs

Nielsen studied “linear, narrative content” (he used Hemingway short stories) “because it’s the primary use case for e-book readers.”

That sounds like the idealized image we might have of a judge sitting down with each brief, starting at page 1 (or page i), and working through to the conclusion.

That’s not how I experience briefs, however, and I suspect it’s not how most judges do, either. Although we write briefs to have a narrative flow, they quickly become a random-access medium. Judges and law clerks need to locate the relevant discussion of a particular issue, case, or piece of evidence. PDF versions are weak in the actual page-flipping, but they have great strengths in internal cross-references and search.

That said, paper briefs still have an indisputable advantage in our ability to “spread them out on a table” so that a reader can quickly compare what all the parties say about an issue.

In theory, the same thing can be accomplished with electronic briefs. But that will take everyone submitting easily searchable PDFs — and judges having a nice, big monitor or two on which to “spread them out.”

1. The study did not try to distinguish degrees of reading comprehension or retention. Participants were given a fairly easy quiz, designed just to ensure they had read the pieces.

The line of the day may belong to Judge Yeakel of the Western District of Texas, who was on a panel discussing how to use appellate counsel in district courts. He noted how much energy was spent on discovery that ultimately didn’t advance a legal issue in the case. Calling out some earlier panelists’ description of appellate counsel as “a luxury,” he said, “You’re looking at it wrong if you spend all the money on discovery and think appellate counsel is a luxury.”

I was very happy to participate in one of the panels (with Blake Hawthorne) on the subject of how technology is changing appellate practice. Someone asked during the Q&A if the slides we used to guide our discussion would be available, so I am posting them here. Those who want to see the more detailed papers and slides we prepared for the UT appellate program earlier this month can find them on this page.

This weekend, I saw my one-year-old nephew operate his father’s iPhone. He swiped to unlock, saw an unfamiliar screen (the mail app), quickly clicked the home button to clear it out, saw the application icons pop up, quickly swiped across a couple of pages to find his children’s application, clicked the application icon to launch it, saw the splash screen load in landscape mode, and turned the device to that orientation. He did all this like a pro. ¹

He can’t yet speak. He’s been walking for a few weeks. But he already uses a button to back out of something unfamiliar into something familiar.

So, when I use a modern, expensive electronic brief that is built on hyperlinks — whether through links inside one PDF document or links to other files stored on a CD-ROM — it’s a shock that Adobe Reader doesn’t display a “back” button. Every web browser displays such a button prominently; some third-party PDF readers do. Adobe’s own product does not.

It’s buried under a menu.

It turns out, however, that a similar function is buried in there. If you enjoy using aiming your mouse at small menus, the function is under “View >> Go To >> Previous View.” ²

Keyboard shortcuts to the rescue

Luckily, there’s also a keyboard shortcut that has made my use of e-briefs much more fluid. On Windows, the shortcut for “Previous View” is to hold down “alt” and press the left arrow on your keyboard. On the Mac, you use the command (⌘) button and the left arrow.

This becomes second nature pretty fast. After checking out a linked source, you can go back to your spot in the brief without lifting your hands from the keyboard.

If you want a clickable button, you can customize the default toolbar

To display a graphic button like this in your toolbar, Adobe asks you to navigate to the Tools menu and select “customize toolbars…”

This brings up a dizzying array of options, but you’re looking for this “Previous View” toggle switch:

From here, you can add whatever menu buttons to your Adobe toolbar make you happy. Go crazy. But for the basic task of navigating back to a previous view, I find the keyboard shortcut to be faster and to be less distracting.

1. I’m sure your children are just as adept. If you haven’t watched a toddler operate an iPhone, here’s a video his mother took of him unlocking and using the phone a few weeks ago.
2. There’s a subtle nuance from Adobe — it’s not really the previous page, it’s the previous view. That means you might have to tap it a time or two to get back where you want. Someday perhaps they will make an equally hard-to-find function that takes you back to the last spot where you hit a navigational link, which would be more precisely how a back button works.

The paper that goes with our presentation is posted here. It covers the big picture, as well as some practical tips for improving your electronic briefs. I’m also posting a PDF of the slides from our talk.

If you’re interested in a how-to guide, last week I posted a working paper about how to make simple electronic briefs. It offers my own suggested workflow through the major steps of the process, as well as some tips about redacting safely.

Today, I’m posting my own guide about how to make electronic briefs for the Texas Supreme Court. You can access the most current version through this link.²

My suggested workflow leaves room for the more advanced (and optional) steps of making internal bookmarks and simple hyperlinks — both of which are permitted within the Texas Supreme Court order. I also offer a little advice about redacting sensitive information from your PDF with confidence.

Upcoming Talk

Next week, I’ll be speaking with Blake Hawthorne at the UT Conference on State and Federal Appeals about how electronic briefs fit into appellate practice. It’s a short talk, but we will try to cover the big picture and offer some practical advice.

In the spirit of Kendall Gray’s nice series of blog posts previewing his panel on oral advocacy, I’d also like to know what’s on your mind before the conference. How do you see electronic briefs affecting written advocacy?

1. The Court made a few tweaks to the rule (primarily about emailed copies) effective May 31.
2. I chose to host the guide at Google Docs for easy updating. You don’t need an account to view the file. And if you want to download a PDF version, you can do so under the “File” menu on the Google Docs menu bar.

That’s good news.

In the future (“starting this week”), new users will be presented with clearer options. At some later time (“over the next couple weeks”), users whose privacy has already been compromised without their knowing might be prompted to take some corrective action. And users will (eventually) get a button with their Gmail settings that can actually disable Buzz.¹ Buzz will continue to be the default setting for Gmail — users will have to individually click to opt-out.

If your main concern is just how you can (eventually) disable Buzz, it sounds like the way to disable buzz I discussed yesterday is the same one that Google will be incorporating into its preference settings.²

But something struck a wrong chord in Google’s announcement. It was a non-apology apology. Indeed, it never really even quite acknowledges that the privacy problems with Buzz (which I wrote about Thursday) were real. (It dismisses them as mere “concerns” about the service, as if they were misplaced).

The big picture: Whose data is this, anyway?

Over the past few days, I’ve found myself trying to understand how Google could have made this sort of blunder. It’s a company whose products I have championed in the past, and that many others in the technology world adore.

Here is my conclusion: Google developed Buzz as an internal corporate product, part of its internal culture. There was no opt-in process because the employees didn’t get a choice; there was no concept that a user might opt-out. And the auto-follow function was not intrusive, it was brilliant. Instead of trying to create “follower” groups based on rigid org charts, the dynamic seeding of Buzz could set up natural follower groups based on who your particular job really brought you into the closest contact with. It was anti-hierarchical, even subversive.

All that makes sense — in a corporate environment.

What bothers me (and apparently many of you) about Buzz is that it treated data that we think of as our data as if it were Google’s to remix and share with the world.

But, if you think about it, in a corporate environment, employee emails on a company server are usually thought of as the company’s data. A product developed for internal corporate use probably would treat emails differently and with less respect than a product meant for personal, private email.

The question for Google going forward is this: How does it see our data? Is the data it collects from users as part of its products like Gmail and Google Docs our data or its data? What permission does it believe is appropriate before it reuses and publishes parts of our data? What expectations of privacy can we have in the Google cloud? (And, after a breach of trust like this, what recourse can we have if they breach our privacy?)

That’s the fundamental issue. I feel like some of my personal data was misused by Google. They have not apologized. And — most importantly — they have not promised in some meaningful way not to do it again.

That covenant is more important than an apology. But they have to start with the apology.

What’s disturbing about Google’s announcement

I do appreciate that Google is moving quickly to try to blunt some of the damage. But this announcement does not reach the core of the problem. (Doing so might have to come from the top levels of the company, not a particular product team.)

For starters, Buzz will remain an opt-out service. It will remain the default for all Gmail users, unless they explicitly choose otherwise.

With regard to auto-following — the feature decried as possibly exposing international human rights activists, anonymous bloggers, and even personal information about ex-spouses — Google says:

This created a great deal of concern and led people to think that Buzz had automatically displayed the people they were following to the world before they created a profile.

Note the dismissiveness of “concern … led people to think.” Set that aside. The key is the last phrase — “before they created a profile.” What this post glosses over is the fact that Buzz did automatically display precisely this information for people who had already created a Google Profile at some time in the past. I was one of those people, as were many of my friends. Profiles were an innocuous feature. There was no reason to think they would suddenly, and without choice or warning, start to publish patterns of our emailing behavior.

As for the auto-following feature, Google says that it will now turn this into an “auto-suggest” feature at start-up that lets you approve before anyone is followed. That’s a huge improvement. I applaud it. But for those of you who’ve already dipped your toes in the water:

over the next couple weeks we’ll be showing you a similar version of this new start-up experience

So Google is apparently going to leave in place all the auto-connections it has already made and that may be displayed on profile pages now. I understand that it’s difficult to unwind this process, but Google is placing its priority here on saving face rather than protecting its users’ privacy by actually unwinding these connections at the source in the same algorithmic way it created them.

I began by saying that Google issued a non-apology apology. It signs off “We’re very sorry for the concern we’ve caused.” That’s sort of like saying “I’m sorry you feel that way.” It’s not an apology. And it’s certainly not what’s needed to reassure users that Google recognizes some difference between our data and its data.

1. I just checked my Gmail account. It’s not there yet.
2. My own Gmail account doesn’t yet have this preference pane. The screenshot Google published has small print warning that its “disable buzz” button will delete your profile and disconnect your followers. That sounds like the exact same three-step-process from yesterday rolled up into one button.

What distressed me most is that Google made Buzz automatic. It was folded into Gmail, assimilated your contacts (and email history), and created these first social connections without ever asking permission. If you had ever created a Google Profile (an innocuous webpage that might collect comments you left on Maps or links to your LinkedIn profile), then Google went a step further — it published these social connections in a place accessible to the world. And even if you had not yourself created a Google Profile, your social connections could still be exposed on the other person’s Google Profile.

Update: On February 13, 2010, Google announced it would be making the privacy options for Buzz more explicit. I wrote about the good (and bad) parts of that announcement in this newer post.

Now there is a “Buzz” preference pane under your Gmail settings. And the little “turn off buzz” link does take you to this preference pane:

The choice at the bottom of this preference pane explains that by disabling Buzz you are disconnecting your followers and deleting your Google Profile. Those happen to the be the same steps I discuss below — so when it was posted, these tips were apparently the right way to proceed. But Google has now given you a single button to do the same thing.

If you clicked the small “turn off buzz” link in the footer during the first few days of the service and were never presented with this preference pane, you may need to turn it back on (using that same link at the bottom) before you can fully disable the service.

Don’t like it? The burden was on you to track all this down and make the privacy changes you wanted. Even if you did that, it wasn’t clear that it was even possible to truly “turn off buzz.” Flipping the switch at the bottom of Gmail didn’t work. Who knows how many people have been misled by that. (Google now acknowledges this on one of its support pages. All that switch does is “remove the Buzz label from your Gmail account,” or in other words, hide it within Gmail.)

Even after clicking “turn off buzz”, your Buzz connections persisted, they were still shown on your profile, and Buzz was still active (as you could readily see from a mobile client, such as an iPhone).

Yesterday’s slight modifications by Google make clear that this was indeed their design

Yesterday afternoon, Google released a statement.¹ They did not back away from their business plan — they still make Buzz automatic and create these connections for you. Their response is, in essence, to blame you for not having figured out how to tweak these engineering settings yourself.²

Their post does note a couple of very slight tweaks they have made that make their service less objectionable for users new to Google. But the basic deal remains the same. Google did not ask your permission for this repurposing of your personal email information, it did not ask your permission to share it, and is not asking for your forgiveness now.

Imagine if Facebook had done this. Imagine they bought a major email provider, folded all of its users into their social network, and prepopulated lots of connections based on who they had emailed the most frequently.

Okay, now imagine that Facebook had placed a button on the email client page that said “turn Facebook off.” And that the button did not actually do what it said.

Users and the press would be calling for Facebook’s head.

How to really turn off buzz

If the “turn off buzz” link at the bottom of Gmail isn’t the right way to actually turn the service off, what is?

Buried within its support pages, Google offers a three-step procedure you can follow to actually disable Buzz. Follow these steps in order, or it doesn’t work at all. The first step, contrary to what you might expect if you were not a Google engineer, is not to click “turn off buzz.”

(I just saw that CNET has also printed up these instructions, with helpful screenshots.)

1. First, you delete your google profile. You don’t hide it or change the name. You have to delete it completely. This doesn’t destroy your overall google account, but it does limit some of your functions. Here’s how to delete your profile.

2. You have to go into buzz and manually delete your connections, including blocking everyone who is following you already.

3. Now it’s safe to go back to Gmail and click “turn off buzz.”

Make sense? Well, if you think about the whole social graph Google built automatically based on your email history — as if you and everyone else were just pieces of data whose permission was irrelevant — I suppose it does. You first have to disconnect all those nodes (by blocking your followers) and delete the hub (your profile) so you don’t get new connections. This process makes mathematical sense, but not human sense.

What should Google do?

What would make human sense is for the “turn off buzz” link to take you to a page that gives you a big button that really, really does turn off Buzz.

Update: And now it does! (See the yellow box above.)

Until then? The “turn off buzz” link is like those office thermostats you find sprinkled around a large workspace. The thermostats don’t work at all. But the feeling of control they give the occupants is a nice placebo effect.

If you want to still participate in Google Buzz but to have more control over your privacy, you’re left with the privacy tips and warnings I offered yesterday and the hope that Google will offer up a decent preference pane in the future.

And even if Google does give us a nice, big “opt-out” button, this remains a massive violation of user trust on Google’s part. This sharing of personal information never should have been opt-out. This is a huge shift in how Gmail uses our data. If this is Google’s method of dealing with our previously private data in the future, how many of us will really feel good about trusting our documents to Google Docs? Or our photos to Picasa?

Will it take an engineering degree (and constant vigilance) to protect your confidential information from being published?

I have no theoretical objection to a Google-run social network. I would like a nice way to easily share stories from Google Reader, for example.

What bothers me is that Google seems to think that its behavior with our email history was acceptable, even commendable. If this is truly the new Google attitude toward user privacy — if they are willing to do this even with emails, traditionally a private realm — that should give you pause before you decide to sign up for the next great Google webapp.

1. Who wrote this statement? A person with the shiny new title “Product Manager, Gmail and Google Buzz.” My flip suggestion yesterday that Buzz had assimilated the Gmail client seems rooted in the organization chart. Google is shifting its well-respected email platform into being a social-media tool, whether its users like it or not.
2. In particular, they point out that it’s possible to manually go through and block particular followers. But, to take one example, they do not mention the data leakage I talked about yesterday, in which these followers get access to information about your other social contacts before you block them.

There was a pretty massive shift in your privacy a couple of days ago. You might not have noticed it. But unless you take a few steps to protect yourself, Google may be sharing some of your confidences with the world.

Here’s what that might mean for you — and four privacy settings that you might want to check today.

Google Buzz: The social network that has assimilated Gmail

Yes, that’s right. Google Buzz is opt-out. When you log into your Gmail account, you’ll be confronted with this announcement:

But notice: It’s not asking if you want to join or activate Buzz. It’s asking if you want to learn more about it.

Even if you click “No” (or, in California-speak, “Nah, go to my inbox”), you are still enrolled in Buzz. The “Buzz” box still appears in your sidebar. The nice folks at Google just assume you want to be part of their new world where “[i]f you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.”

Assume for just a moment that this concerns you. Assume, perhaps, that some other people might expect to be able to contact you in confidence — as a lawyer, a blogger, a journalist, or even (gasp) a friend. Assume that part of your professional responsibility is keeping the confidences of others.

This is not your first rodeo, so you click on the “Settings” menu at the top right of your Gmail. You expect to see be offered privacy options for this new Buzz service, but you see that there aren’t any. Although Google has integrated Buzz directly into your Gmail, it has hidden the controls (feeble as they are) somewhere else.

Here’s what this elusive new Buzz item might mean for your privacy. And here’s how to find (and change) a few settings to protect yourself.

Repurposing old data in a way that flouts our expectations of privacy

The problem here isn’t that Google is starting a new social network.¹ We all know what social networks are; Google would probably be good at the engineering side of it. (I bet they haven’t even bothered to pick out their own iconic “fail” icon.)

The problem is how. Google has taken a couple of services that had basically clear privacy expectations — specifically, Gmail (private) and Google Profiles (public) — and combined them in a way that discloses previously private information that many people consider confidential.

For Buzz, Google’s engineers now guess at your social network based… wait for it… on who you have emailed most often. Here’s how its privacy policy describes this today:

When you first enter Google Buzz, to make the startup experience easier, we may automatically select people for you to follow based on the people you email and chat with most. Similarly, we may also suggest to others that they automatically follow you. You can review and edit the list of people you follow and block people from following you.

Having guessed at your social network, the Google engineers then share their findings with the world:

Your name, photo, and the list of people you follow and people following you will be displayed on your Google profile, which is publicly searchable on the Web. You may opt out of displaying the list of people following you and who you’re following on your profile.

If you are following someone who publicly displays their list of followers on their Google profile, then you will appear on that person’s public list. Likewise, if someone is following you and displays the list of people they follow on their profile, then you will appear on that public list.

So, a few days ago your email address book and list of recipients was private information. It would have been downright scandalous if someone had broken into Google and stolen it — even if just for a few dozen targeted accounts of Chinese dissidents.

But today, Google has used that same information to seed a new social network that by default makes these links publicly searchable? Wow.²

Who knew that Google’s next “email killer” product would be aimed at killing trust in their own Gmail service?

Four tips to protect yourself and those who might expect some confidence from you

You do have a few switches to control this Buzzsaw. They’re just not where you expect them to be. And they might not do what you expect, either. There is no true “off” switch.

Here are the four settings I found this morning that seem to make a difference:³

1. When you “turn off” Google Buzz, that doesn’t actually remove your information from search results

You might have seen the article “How to do everything with Google Buzz (including turn it off)”. It’s a nice overview of the service. But, unfortunately, the tip it gives on how to “turn it off” actually just hides the updates so you can’t see them. Buzz is still active on your account, and your information is still shared.⁴

This setting is hidden in plain sight, down in the footer of the page with such frequently referenced items as your terms of service and their privacy policy. (It’s as if Google wanted to make sure the lawyers would have no excuse not to find this.)

If you regularly read the fine print on pharmaceutical ads, you might have noticed that this setting appears on a line that begins “Gmail view.” And it turns out that this “turn off buzz” switch does not actually turn off the Buzz service. Instead, it just turns your view of the service off. It hides updates… from yourself.

That’s probably not what you had in mind from an “off” switch. However you flip this switch, your follower/following information remains equally visible on your profile page for the world to see.

I could not find any switch that would actually disenroll me from Buzz. Once assimilated into the Buzz collective, there is no easy way to go back.

2. To stop sharing your own follower/following lists, go to Google Profiles

If you have ever created a Google Profile, your Buzz followers/following list is already displayed there by default to anyone else who is signed into their own Google account — even if they have no connection to you at all.

From your own profile page, you can choose to hide that list.

You have to choose “Edit Profile,” which brings up a whole mess of options, including this new checkbox near the top right:

Toggling this switch off at least does what you expect. It hides your follower/following information from your own profile page.

You might breathe a sigh of relief. People who view your profile will no longer be treated to a list of the people you email most often.

But you are still in the Buzz collective. And your name and smiling face may still appear on the other side of these follower/following connections. You may still be publicly linked to one of your clients, sources, or friend’s profile accounts, whether or not they expect it.

How do you help protect the confidences of others, if protecting confidences is part of your line of work?

3. If you want to help out your clients, you may have to disable your own Google Profile

This is the tip that makes the least logical sense — but that had the biggest positive effect.

After I did steps 1 and 2 above — turning “off” Buzz and disabling the follower/following list from showing in my own profile — I was disturbed to see that I still showed up in some friends’ public profiles.

Why is that? Because the Google Buzz system appears to distinguish between people with a public profile who choose to “share” their full name and those who do not.

By going back to my own profile settings and toggling this switch to the off position, I managed to remove my name from the list of people who would be publicly displayed on someone else’s profile page.

Not obvious. But it works (for now).⁵

4. (Bonus!) If you want to really make sure things are nailed down, you have to manually delete the “following” selections Google has made for you by default

I was originally going to stop with step 3, but when demonstrating this to someone else… I found another leak. ⁶

Although I had done the three tips above, I had not made any changes to the follower/following list that Google created for me automatically. It was hidden, but still there.

I demonstrated these tips to someone who happened to be on my “following” list and… they could still see me. That’s not too terrible. But they could still see me listed on other people’s profiles, too — even profiles with which they were not otherwise linked. So, if they stumbled upon (or sought out) one of those profile pages, they could get information about my connection with that person, even though I had chosen not to share my own connections and even though I had told the system not to make my information publicly searchable. ⁷

So here’s the final tip for today: Anyone on your “following” list — even if Google put them there automatically — gets access to private information about your other connections.⁸

Update: I’ve now had a chance to check if your “followers” also get access to this information. It turns out that they do.

That might be a reasonable choice for a social network to make. But not for an email service like Gmail.

So, if it’s your business to respect the confidences of others, you should prune down that list (perhaps to zero).

And, even if you decide to use Buzz in a limited way, you should be very wary of following people just because they might send out a funny update or two. This isn’t Twitter, where the price of following might be a spammy DM. This is the Buzz collective, where you are not in control and your information may not be your own.

1. Business riddle: Google basically prints money. Facebook famously doesn’t. If Facebook has been unable to make money even at its own enormous scale, why does Google want to get into this business? Is it really worth destroying your enormous franchise value in email and business-related apps to do so?
2. If you think about it, Google’s choice to make it just the people you email “most” cuts both ways in privacy terms. Sure, fewer contacts information is exposed. But the selection gives away information about your behavior in regard to those contacts, which might even be more sensitive. Who are you to deny what Google says about you?
3. I tried these settings out from a few accounts, checking to see how the system behaves. Some of these options or their effects may change. If you notice a change or something that I just got wrong, please let me know, and I’ll update the post.
4. It’s hardly the author’s fault. Google is the one who called this an “off” button instead of a “hide” button. In trying to attack Facebook, Google seems to have also followed the same strategy of fragmenting and hiding user privacy controls.
5. Of course, this doesn’t really give me more privacy. I still have a public Google profile (and I don’t see an obvious way to delete that) — it just appears under my Google account name instead. And it probably doesn’t take a cluster of NSA computers to figure out the connection between your account name and your real name. If you chose an account name like I did, it probably just takes a space bar, a period key, or maybe an underscore.
6. I suspect there are more. Please let me know, and especially let me know if you find solutions.
7. Curiously, they could also see my “full name” on my profile page, even though I had told the profile service not to display it. This may just be a bug. It may be a feature. Or Google might not have decided yet what to call it.
8. Your “followers” do, too. What I saw was based on people I was still “following.” I didn’t test if people merely on a “follower” list also get access to more information. It doesn’t seem like they should, but then again, it doesn’t seem like those on the “following” list should, either.

A recent post on CourTex raises that question and links to a report from a national court administration group that suggests digital recording for trials.

The implications for appellate practice could be significant — more transformational than electronic briefs. Electronic briefs help the appellate court do what it already does. But having a digital video record of the trial could transform how appellate courts experience the record. That may just change how we as appellate lawyers can present it to them (as embedded video clips of key testimony, for example). Or it may even start to push the traditional distinctions between the role of appellate and trial courts on questions such as witness credibility.

This may be a reality for 2020 rather than 2012. But the groundwork for these changes is being laid now.

The greatest source of terror that lawyers face online is not from spyware, malware, phishers, or scammers. It’s from well-meaning regulators trying to apply legal ethics rules to the online world.

When legal ethics commissions wade off into a new area of technology, they can make truly scary rulings.

Judges are not and cannot be your “friend”

Last week, the Legal Profession Blog reprinted a decision from Florida’s legal ethics body that concluded lawyers and judges could not be “friends.” Not actually friends, of course — that’s permitted. What’s prohibited is being the sort of in-air-quotes “friend” listed with an online social media site.

The ruling is pretty stark, saying that judges cannot permit lawyers to add them as “friends” on social-networking sites. The commission’s concern was the impression that the online site might convey to the public that the “friend” has special influence over the judge.¹

The logic of this decision applies to Facebook friends, Twitter followers, and even Facebook fan pages

The “friending” concept the committee attacks would include most connection-based sites such as Facebook:

Whether a judge may add lawyers who may appear before the judge as “friends” on a social networking site, and permit such lawyers to add the judge as their “friend.”

ANSWER: No.

But the reasoning goes much further. The opinion explains that it applies even to a campaign committee that might set up a “fan page” on which people can list themselves as a supporter:

Whether a committee of responsible persons, which is conducting an election campaign on behalf of a judge’s candidacy, may establish a social networking page which has an option for persons, including lawyers who may appear before the judge, to list themselves as “fans” or supporters of the judge’s candidacy, so long as the judge or committee does not control who is permitted to list himself or herself as a supporter.

ANSWER: Yes.

That last phrase is the rub. The major social networking sites do let account owners “control who is permitted” to be a fan.²

Twitter is obviously affected. Although you can “follow” someone on Twitter without them taking any action to accept you, Twitter lets account owners go back and “block” specific followers.³

And the same is true of Facebook’s fan pages — which, presumably, the committee saw as different and through its “Yes” answer was trying to exempt from this rule. That’s because Facebook also lets owners of fan pages choose to block specific users:

Whoops! By trying to explain and narrow its ruling, the Florida commission seems to have just made the problem worse. Now it’s not just “friends” who are prohibited, but also “fans.”

What we need is common sense.

The commission’s attempt to draw a technological line between “friends” and “fans” didn’t work because the regulators had an incomplete view of how those websites work.

No doubt, some will say the regulators just need to find a more refined and even more technical distinction to use next time. But that’s a losing strategy. The technology is going to keep moving faster than our bar committees can keep up.

The right approach? Here’s what South Carolina said recently when asked if magistrate judges could be online “friends” with law enforcement officers:

CONCLUSION A judge may be a member of Facebook and be friends with law enforcement officers and employees of the Magistrate as long as they do not discuss anything related to the judge’s position as magistrate.

OPINION A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. . . . However, . . . complete separation of a judge from extra-judicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives. Allowing a Magistrate to be a member of a social networking site allows the community to see how the judge communicates and gives the community a better understanding of the judge. Thus, a judge may be a member of a social networking site such as Facebook.

That makes a great deal of sense. Cordoning off the legal system from the public will do nothing to boost public confidence.

If the only lawyers and judges that the public ever sees are the ones on television, we’re all in trouble.

Is social networking really the biggest concern about the public’s perception of judges?

At the same time Florida regulators are condemning Facebook, its trial bench judges still scrape together campaign contributions from local lawyers, as they must to win an election.

Imagine this as telephone poll:

“Which is a greater threat to judicial independence: (1) campaign contributions from people who later appear before the judge or (2) judges listing their friends on social networking sites like Facebook?”

The most popular response might be “Sorry, I just can’t stop laughing long enough to answer the question.”

Some people complain that they want more certainty about how legal ethics regulators will treat new areas of technology. But be careful what you wish for. It can be very wise for regulators to move slowly and avoid announcing bright-line rules about technology that’s so rapidly evolving.

Related story: While finishing up this post, I happened to hear this news story by Ben Phillpot on KUT that used this Florida ruling as a jumping off point to explore some related questions, like who can “friend” a lobbyist without triggering disclosure requirements.

1. There is of course no surer way to build credibility as an advocate than letting a judge see all the high-school-yearbook pictures that your other friends post on Facebook.
2. I’m at a loss to see how this would be different than a campaign hosting a list of its supporters on its own website. But perhaps the Florida commission sees some ethical distinction I do not.
3. I’ve never quite figured out why Twitter gives people this power to block “followers” on a public account — followers can do nothing more than read your public posts, which they could get on your public Twitter profile page even after you block them — but the power exists, and people use it.