Courts

Is Emoji Law Going To Be A Thing?

Santa Clara Law professor sparks conversation about emoji evidence.

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The work of Santa Clara Law professor Eric Goldman has people  about emoji evidence.

But that future is already upon us. From The Verge:

Emoji are showing up as evidence in court more frequently with each passing year. Between 2004 and 2019, there was an exponential rise in emoji and emoticon references in US court opinions, with over 30 percent of all cases appearing in 2018, according to Santa Clara University law professor Eric Goldman, who has been tracking all of the references to “emoji” and “emoticon” that show up in US court opinions. So far, the emoji and emoticons have rarely been important enough to sway the direction of a case, but as they become more common, the ambiguity in how emoji are displayed and what we interpret emoji to mean could become a larger issue for courts to contend with.

Anytime some kind of “new” form, method, or medium of communication pops up, people worry that courts will struggle to understand them and it will lead to vast miscarriages of justice. And you can see why. If your boss starts texting you “eggplants” and “peaches,” a dumb-ass judge might think that he’s just suggesting a recipe, but you know what’s really up. Our courts are going to have to become emoji literate, sooner rather than later.

But, unlike some other olds, I’m not too worried about it. Judges and juries have a long and relatively successful history of ruling on issues that they do not even begin to understand. We don’t need to worry about a judge misinterpreting the latest emoji-speak for “sex” or “crime” or “let’s kill your husband.” What we need to worry about is making sure that our soon-to-be coming crop of “emoji interpretation experts” get recognized under Daubert to explain this to a judge or jury.

At this point, I think it’s slightly ridiculous to prosecute somebody based on emoji evidence alone. This story that always goes around, about a 12-year-old charged for threatening the school because she used a gun emoji, is kind of the nightmare. But if an emoji, in context, helps the prosecution build a case — or exculpates a suspect — they shouldn’t ignore it.

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Emojis are going to be useful at establishing knowledge of a criminal scheme. Right now, we’ve seen it used in prostitution cases and other kind of street-level crime situations. But it’s not going to be long before an emjoi is a key piece of evidence in a massive insider trading scheme or some other white-collar conspiracy. “What did it mean when you responded with two money bags, and a thumbs up? Didn’t it mean that you were in on the scheme to defraud shareholders?” That seems like a legit line of inquiry.

And that’s fine, so long as we also have experts that can give alternate theories of interpretation. When was the last time somebody used a crown emoji UNironically? “In my expert opinion, the use of the crown here was to indicate mockery of the criminal scheme, not allegiance to it.” What we don’t want is prosecutors defining what emojis mean, without independent analysis.

I get it, everything feels so stupid and it’s getting dumber. But, you know, 10 years ago nobody could imagine Twitter being used as evidence. Now, it’s the chief evidence of executive intent behind a tyrannical power grab. Life comes at you fast.

Here’s me talking on CNBC about this.

Emoji are showing up in court cases exponentially, and courts aren’t prepared [The Verge]

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Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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