7 things about Social Media as Evidence
When a “Facebook” account is created, the user agrees that their personal information would be shared with others. Once the information is made public it can be copied, tagged and distributed. When a person creates a social media account for themselves they are, in a sense, a self-created celebrity, so - is it “reasonable” to expect complete privacy of the account?
- Public or Private?
Can Facebook, Instagram, Snapchat or Twitter be subpoenaed for the user account data? how would you domesticate and overcome another “little” obstacle called – “End User Stored Communication Act”.
- Let’s Subpoena – Not!
Sending s subpoena to Facebook in a civil matter, could prove to be a waste of time. I would much rather focus resources on trying to obtain the actual device that was used to post to the social media account, than try to get Facebook to comply.
I know! digital forensic and social media analysts, myself included, are on a perpetual repeat, play cycle “preserve, rewind play “preserve” rewind play “PRESERVE!”I can’t over emphasize the advantages of preserving and storing digital data and devices early in a case. Way too often we are called up last minute to pull a rabbit out of a hat. The way people and businesses use technology and its byproduct – digital DATA – preservation of such should not be an afterthought or a last minute trick pulled a day before the discovery deadlines. Way too often I sadly hear the regretful voice on the other end of the phone saying… “we should have called you earlier on”
- Preserve, Please Preserve
A narrowly well-tailored preservation order for the social media account should include language encompassing: user name data; last user log session; all users with access to the account; Similarly, when requesting to preserve a digital device, we should ask for the various platforms of data storage; searched data and identify the specifics such as file type, file extension and/or date and time parameters.
Making best efforts to compel opposing to turn over the device(s) used to access the social media account(s) early on, and being granted the motion is like all the church bells ringing at the same time because we can forensically preserve, extract and analyze the social media data right from the device itself, so we get the private data too, and … double bonus - with the users’ consent to temporarily turn it over to a third party say, Expert Data Forensics (of course).
- Ring the Compel Bell
- Is the Data Really Relevant?
Social media can contain evidence: person to person communication, informal comments, postings, images, locations, videos, date and time stamps and every friend or follower is a potential witness. The question is; if what we collect can likely help prove or disprove a fact in the case. If the answer is yes, then – do you think its relevant? A good example of cases where social media collection can be useful are; Personal Injury, Child Custody, Insurance Defense, Interference, Tort etc. I urge you to stop and think at your current case load, how many of your cases right now involve digital data such as text messages, deleted data, altered data, contents of email if you are nodding, then you should be preserving.
The San Diego County Bar Association Legal Ethics Committee states that:A lawyer may not serve a friend request on a represented party as it would be designed to obtain information for a lawsuit and would therefore likely constitute a communication “about the subject of the representation”. On a case by case you should weigh the advantages of having a licensed third party service collect and monitor public data from social media to ensure that the data is collected in a defensible manner.
- Not all attorneys are “Friends”
Authenticating social media is important, fake accounts are easy to create, once social media is collected, it is important to authenticate it by identifying a witness who can establish that a post, a comment or a picture is authentic. If you choose to use your paralegals to collect social media, your firm can become a witness. If the data is not collected correctly, you could miss important metadata. Lastly; screen shots or captures, they are okay, but are they defensible?
Director of Operations @ Expert Data Forensics