The Emojis are Coming … Into Your Court Cases

Santa Clara University law professor Eric Goldman is an expert on internet speech. Lately, he's been rather obsessed with a topic that most lawyers probably have never stopped to think about—the ways that emojis are creeping into court cases and how judges and litigants are dealing with them.

We admit that when we first read Goldman's writing on emoji law, we were . Then, after reading Goldman's article, we were  and .

If you don't know precisely the point we're trying to make here … well that's basically the issue. Emojis can be difficult to interpret when they're presented as evidence in a case.

The What's Next team checked in with Goldman to see what's new in emoji law. Here's what he had to say:

What areas of law are being impacted by emojis—and can you give a few quick examples?

GOLDMAN

Goldman: Emojis show up in virtually every practice area because emojis are showing up across all types of online communications. Emojis show up most frequently in cases where online chatter is a key source of evidence. By far the most common types of cases involving emojis are sexual predation cases, where the perpetrator and the victim (or an undercover cop) exchange flirtatious or sexual banter, often a form of victim grooming. For similar reasons, employment discrimination cases show up disproportionately frequently in my list of emoji cases.

In 2017, you wrote a paper that surveyed emoji references in about 80 court opinions and warned lawyers and judges to prepare for “the coming emoji onslaught.” What are some more recent developments that have come to your attention?

Goldman: We're seeing a J-curve of exponential growth of references to emojis in court opinions. 30% of the all-time number of opinion references to emojis occurred just in 2018.

Unfortunately, opinions still struggle with displaying emojis. Opinions routinely omit the emojis altogether, or the judge imprecisely characterizes the emoji(s) in evidence. (It doesn't help to call an emoji a “smiley” because there are a dozen different smiling emoji symbols). Furthermore, Westlaw and Lexis still usually do not display emojis, and neither database makes it possible to search for emojis in court opinions. So while the number of court opinions referencing emojis is growing rapidly, the court publication process remains woefully under-prepared.

Another recent development: In 2016 and 2017, there were still substantial differences in how online platforms depicted the same emoji symbols. In the past couple of years, many platforms have done a lot to harmonize their depictions of emojis. The depictions between platforms are not as starkly different as they used to be. However, there are still inexplicable minor variations across platforms, so real harmonization of emoji depictions seems far away.

The diversity of emoji depictions across platforms will inevitably cause lawsuits. As one empirical study recently found: “at least 25% of respondents were unaware that the emoji they posted could appear differently to their followers. Additionally, after being shown how one of their tweets rendered across platforms, 20% of respondents reported that they would have edited or not sent the tweet. These statistics reflect millions of potentially regretful tweets shared per day because people cannot see emoji rendering differences across platforms.” Those “regretful tweets” should make lawyers some good money.

Isn't actual language also subject to varying interpretation? Are emojis extra challenging in this regard or just another way that human communication is often blurry? 

Goldman: You're absolutely right. Courts have been interpreting non-verbal/non-textual communications for centuries. Indeed, interpreting communications between people is one of the strengths of our judicial system. In that respect, emojis are just another type of non-verbal/non-textual communications for courts to interpret.

However, emojis do have some unique attributes that require extra consideration when interpreted. I'll mention just three key differences (there are more).

First, emojis often are visually quite small, and there are many emoji symbols that look similar. Therefore, they pose a greater risk that the reader will incorrectly, but reasonably, decode an emoji symbol compared to many other forms of communication.

Second, every type of communication develops regional and community-specific dialects. However, because emojis look different on different platforms, the symbols can develop platform-specific dialects. For example, on Apple, eggplants are associated with penises and peaches with butts because of how Apple depicted those emojis. For a long time, emoji users on other platforms had no idea of those connotations, because the eggplant and peach emojis on their platforms didn't suggest those associations.

Finally, because emojis display differently on different platforms, it's entirely possible for an emoji sender and recipient to see significantly different depictions of the same symbol, meaning that both may reasonably reach entirely different interpretations. For example, for a while, Google users thought the “grinning face with smiling eyes” emoji meant “blissfully happy,” while Apple users thought it meant “ready to fight.” Thus, a Google user sending that emoji symbol to an Apple recipient might unintentionally prompt violence, even though both the Apple and Google users made reasonable interpretations of the symbol. Determining how to apportion liability when both parties made reasonable but different interpretations of the same symbol will lead to many unhappy outcomes.

What is your advice for judges who confront emojis in their cases?

Goldman: I have three suggestions. First, judges should make sure that the lawyers present the exact depictions that their clients saw. There are so many circumstances where the sender and recipient saw different symbols, and the differences could affect the dispute. It would be a potentially major mistake for a judge or litigants to assume that there is a single canonical depiction of emojis that both parties saw identically.

Second, judges should make sure that the fact-finder gets to see the actual emojis so it can figure out its meaning directly. If testimony is being read in court, the emojis should not be orally characterized but should be displayed to the fact-finder.

Third, judges should display the actual emojis in their court opinions. They should not omit the emoji symbols or try to characterize them textually. The symbols might not render properly in print or Westlaw/Lexis, but they should at least appear properly in the PDFs of the court opinions.

I imagine that your writing on emojis brought attention to the issue before it had even occurred to most lawyers. Is there anything new you've started to see with online communication that is likely to start presenting issues in the courts?

Goldman: As unsettled as emoji law is today, it's only going to get more complicated as technology evolves. For example, we generally assume emojis are static, but they can be animated. Apple's animojis reflect the sender's facial movements, and Samsung's “AR emojis” are personalized animated avatars. These innovations pose even more challenges for courts to interpret, including the standard challenges associated with video evidence. Furthermore, because the unique attributes of these next-gen emojis are platform-specific, lawyers are going to need to be quite familiar with the platform's operation to fully evaluate their cases.

Looking Back at Legalweek

Legalweek has come and gone once again, and two themes in particular kept popping up this year. We have a quick look back at a couple of items to watch.

Ready for AI? We've been talking about artificial intelligence for about five years now, and we've occasionally been met with some skeptical comments from law firm and corporate legal department leaders about how “it's not ready.” We didn't received a single comment like that this year.

Many people who were previously worried about being AI “guinea pigs” no longer have that concern since the market has matured. Now, legal AI looks to be moving into the Early Adopters stage of the Innovation Adoption Curve, where there may still be some risks of moving, but they're largely outweighed by the positive forces of efficiency gains and differentiation. And we're not just hearing this from AI companies, it's coming from the end users themselves.

All that's left is to find a distinct use in the organization where it can help, and convince attorneys to jump on the tech bandwagon. Cheryl Smith, O'Melveny & Myers' director of information services, said on a Legalweek panel, “Basically we are taking the approach when we promote products that the idea is not to promote the product but what is going to make their lives more easier, make them more efficient, help them support their clients more effectively.” It seems to be sinking in that AI can do just that.

The Corporate Climb: Historically, Legalweek (previously Legaltech) has been a hotbed for Big Law technologists, and that hasn't gone away with the LegalCIO and Business of Law Forum conferences added to the fold. But what surprised us in our conversations and walking the exhibit floor was how often corporate law seemed to be entering the picture.

It was clearly evident on the e-discovery side—both Relativity and Nuix said they were increasingly searching for ways to focus on the market with their product roadmap, while the Zapproved-sponsored Corporate Ediscovery Hero Awards continued to grow in its third year. Collaboration platforms like HighQ and Workstorm are continuing to grow with a corporate legal push, while legal research giants LexisNexis and Thomson Reuters are ever-expanding their analytics capabilities to include, among other things, greater insight into outside counsel litigation strategies and spending.

It tracks with a trend we saw pre-show—as GCs are increasingly asked to make business decisions by C-suites, and legal operations personnel continue to be in vogue, technology usage is going to continue be a crucial piece of the planning puzzle for corporate legal departments. Litigators have had to get used to increasingly explaining their spending in recent years; technology-enabled transparency isn't going away any time soon. The next wave of corporate counsel will know exactly what legal technologies are on the market, and expect their outside counsel to act accordingly.

Dose of Dystopia: Say that again?

Omnipresent video cameras are so early aughts. If you've been paying attention, then you should know by now that the future of digital surveillance is voice recognition. And I'm not just talking about Alexa listening in your kitchen to help you stock your fridge.

The Intercept reported last week on the widespread adoption by prisons of a system to record and store inmates “voice prints,” which could later be used to identify the parties speaking to each other on recorded prisoner calls. Devoted readers of this newsletter may remember hearing about similar use of technology a while back—by U.S. intelligence agencies tracking foreign terrorists and spies.

Staying on the Right Side of Evolving Crypto Law

A recent ruling by the Third District Court of Appeal in Florida highlights how state and federal laws are evolving around the treatment of cryptocurrencies.

Joshua Ashley Klayman, a noted blockchain/crypto attorney who left Morrison Foerster to start her own boutique firm Klayman LLC last year, said some people had incorrectly believed a few years ago that new technologies were exempt from existing laws or regulatory frameworks. “We have seen, and continue to see, a maturation of the crypto industry and a recognition that, in many cases, existing laws apply,” Klayman said. Klayman stressed she is not a litigator and isn't licensed to practice law in Florida.

The Florida appeals court reversed a lower court's 2016 decision by finding that cryptocurrency is indeed a financial or monetary instrument under state law. The case involved Miami Beach resident Michell Espinoza, who is charged with money laundering and acting as an unauthorized money transmitter, as reported in the Daily Business Review.

Espinoza's attorney, Frank Prieto, said “we respectfully disagree with the ruling. We think they made a big leap claiming that he was in the business of money transmitting. It sets a dangerous precedent for anyone selling personal property that they could be facing a criminal penalty for not having a money services business license.”

Klayman said the ruling demonstrates an increased understanding of the nuances in digital tokens. “We have seen more generally that a variety of different regulators, even within the United States, have asserted overlapping jurisdiction over virtual assets. For instance, one regulator may deem a digital token to be a form of property, while another classifies it as a commodity, yet another calls it a security, and another treats it as money.”

Gary De Waal, special counsel at Katten Muchin Rosenman in New York, who examined the case in his own blog, said in a brief interview: “What we tell clients is that just because last week you thought a state money transmitter regulator had a certain view on an exchange's cryptocurrency transactions, don't assume it is the same this week. You really have to stay on top of this one because the repercussions are quite severe for getting it wrong and state views are changing regularly.”

It's another techno-Foucault-ish twist on criminal justice, and unsurprisingly, not everyone is happy about it. Especially because it's not just prisoners' voices that are being analyzed, but the voices of the people they may be speaking to outside the prison as well:

“Why am I giving up my rights because I'm receiving a call from somebody who has been convicted of a crime?” asks Jerome Greco, a digital forensics attorney at New York's Legal Aid Society. Greco argues the mining of outside parties' voice prints should require a warrant. “If you have a family member convicted of a crime, yet you haven't been, why are you now having your information being used for government investigations?”

In some prisons, inmates were told they could lose phone privileges if they didn't repeat phrases to gather their voice-print data. Authorities say the program is helpful to stop problems like prisoners stealing each other's PIN codes to place calls. But experts told The Intercept that there appear to be few legal limitations on how the data could be used later on down the line.

That strikes us as an issue facing many of us outside prison walls, too–giving up our biometric data, without really knowing what will become of it. Although most of the time, we have a choice.