Online background checks for bar and law school admissions?

Submitted by Tom Boone on September 10, 2007 - 7:09am.

University of Virginia law librarian Michelle Morris made an interesting proposal recently in the Yale Law Journal Pocket Part:

Our law students are more tech-savvy than ever. Unfortunately, they occasionally lack sense. Some of them simply fail to realize that we—professors, bar examiners, and law firms—see material they post online. Others make a game out of being intentionally, but anonymously, offensive. To avoid further injury to the reputation of our law schools and the legal profession, we must create incentives for the former students to consider consequences, and a reasonable chance that the latter students can be “caught”—i.e., tied to their online personas. To accomplish both ends, I propose that we request, in law school and bar applications, a three-year history of online aliases and related information.

In developing her argument, Morris refers to an incident involving AutoAdmit.com in which a UC Berkeley law student posted comments about plans for a Virginia Tech copycat shooting spree at Hastings College of Law. Hastings canceled classes and evacuated the law school as a result of this threat. UC Berkeley recommended expulsion for the student involved.

In the spring of 2006 I wrote about the potential problems law students might encounter due to "anonymous" online behavior, albeit in a far less dangerous context:

A time is coming when no employer will hire someone without first searching for that person on MySpace. A student can be professional and likable throughout the entire interview process, but if her MySpace profile is filled with "loud comments, loud music, and all around bluster," a managing partner might very well think twice about hiring her. If a student brags about his excessive drinking, an HR director may not want to take a risk on him in a profession already riddled with substance abuse problems. Everyone knows that people are usually on their best behavior in job interviews. By searching out a candidate's MySpace profile, a law firm administrator can see what that person might be like when her guard is down. And that can often be far more important than her GPA.

In another post I linked to a news story about the University of South Florida's attempts to educate incoming students about the possible unintended consequences of their online personas:

During orientation and in the University's code of conduct, school officials remind students just how a not-so-positive website could affect life after college.

"In the future, when they're looking for a job, and the employer has seen whatever kind of picture and statements are available, you can hurt yourself, people need to be aware, whatever they put up will be available."

Morris's proposal is the next logical consequence. In the case of bar admissions, where a thorough background check is sometimes necessary, the proliferation of online pseudonyms makes true thoroughness a challenge. I'm not sure how quickly state bars will implement required disclosure of online aliases, but it's definitely a matter of "When," not "If."

[Yale L.J. Pocket Part] The Legal Profession, Personal Responsibility, and the Internet

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Response to Ms. Morris

Submitted by Visitor (not verified) on September 11, 2007 - 3:54pm.

THE DEATH OF SPEECH: A RESPONSE TO MICHELLE MORRIS
By: ANONYMOUS

The AutoAdmit scandal, involving two Yale law students who sued the anonymous message board over alleged online harrassment, has been the centerpiece of several recent essays in the Yale Law Journal Pocket Part.

While the essays feature different perspectives on the situation, one in particular stands out. The Legal Profession, Personal Responsibility, and the Internet by Michelle Morris advocates the following:

"[M]y proposal: request a three-year history of online aliases, e-mail addresses, IP addresses, blogs, and social networking site profile information on both law school and bar application forms."

Morris fails to address the rather obvious free speech implications of her proposal, such as the chilling effect it would create. Anonymous speech remains a constitutional right, a basic point that was omitted from Morris's essay.

Morris justifies her position by stating the following:

"Bar applications already ask students to itemize every speeding ticket ever received, provide personal references for each stage of life, and list several years of mailing addresses. We need to ask for the cyberequivalent. These questions should be phrased as requiring a “complete” list—perhaps for the three years preceding the application—with the burden of omission falling on the applicant (i.e., penalties for lying if you leave things off)."

Somehow Morris has decided that reporting factual information such as speeding ticket records and former addresses is equivalent to disclosing one's IP address, online aliases and e-mail addresses. Apparently there is no distinction between screening applicants for criminal conduct and combing their internet histories for “illegal, immoral or unwise behavior.” The first element in that list is far less problematic than the other two- who is to decide when speech is “immoral or unwise,” and why should such speech bear on someone’s fitness to practice law? Perhaps the most acute danger in Morris’s article is that there is nothing to guide the evaluation of speech.

Or maybe Morris’s article is troubling because it makes no distinction between good speech and bad speech. While not all speech is constitutionally protected, Morris does not limit her proposal to speech that falls beyond the point of protection. Instead, she advocates a dragnet that would ensnare harmful as well as innocent speech. Maybe it never occurred to her that students will be less likely to air grievances against schools, firms and the like with the knowledge that everything they say will need to be disclosed. Warrantless IP mining by the FBI under the Patriot Act was recently held unconstitutional in federal court, despite the national security concerns justifying this tactic. It is difficult to see how additional screening of law school and bar applicants provides a weightier reason for abandoning constitutional rights.

But more than that, Morris’s article is downright scary because she lectures at the University of Virginia Law School. In an era where technology is making it all too easy to clamp down on free speech, universities should be the beacons of resistance. Morris, a research librarian, should possess an acute understanding of how important the free exchange of ideas is to a democratic society. If there is any reason for optimism, it is that Morris’s proposal may be the child of ignorance rather than knowing design.

http://www.futureacademic.com/listing.php?cpath=257&id=206