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For attorneys, and for many of the private investigators that specialize in supporting attorneys in their legal efforts, the world of social media remains largely uncharted territory. Unlike the early explorers who mapped our relatively solid physical world, we are faced with the problem of trying to navigate an ever-changing landscape in the virtual world of the internet.
There is no question that social media and the internet can be a very useful resource for successful litigation. The questions that do exist mainly concern how to most successfully utilize this amorphous entity.
Our experience in conducting social media and internet investigations has shown us some general rules of the road, which we feel provide the best results for the use of this tool in the legal arena.
The single most important aspect of a social media investigation is knowing that you have the correct identity of the subject you are investigating. On Facebook, Twitter, and other commonly used social media, data such as the address and phone number of the person are not made available. Thus, if the subject has a common name, finding him or her on a social media site can be a futile exercise. There is a rule that makes it possible to overcome this obstacle: Learn the person’s email address. It has been said that a person’s email address is the “internet version” of a person’s social security number, when it comes to identification. We have certainly found this to be an accurate assessment.
Of course, the easiest way to learn a person’s email address is to ask them. Old habits die hard, and if one is not used to asking for this information as part of a deposition, statement, or interview, it’s a good new habit to acquire. Keep in mind that many people have multiple identities on the internet, so one should ask for all email addresses (I know I have several myself). One should also ask for any Twitter “handles,” PayPal user names, and the like. This can make all the difference in being able to conduct a successful social media/internet investigation.
Similarly, one should be sure to ask for all telephone numbers used by the subject. As an example, in one case we checked internet/social media web sites for a man who was claiming disability, asserting that he could not work at all. We found a listing for his phone number on a local community site that mentioned a farmer’s market. Further investigation revealed that the man was running a small “under the radar” produce business. We were then able to get surveillance footage of him on a day when he was loading up a display full of watermelons. So there is value in asking for all phone numbers used.
A well known writer once complained that because everyone knows how to read and write, they don’t see how the writer’s skills are different from their own. Almost everyone regularly browses the internet. Many have a Facebook page and/or Twitter account and use them regularly. Thus, it is easy to see why many feel that doing social media/internet searches on their own is sufficient. Many such people are indeed well versed in internet matters, but the ultimate product for an attorney is evidence which can be incorporated into the case. This means that a do-it-yourself approach has ramifications.
In one case, an office had a secretary who was very inquisitive, liked to help out, and was an avid Facebook user. She was assisting with a case, and took it upon herself to check Facebook to see if she could find the plaintiff online. She did! And it looked like the plaintiff was running a dance school, which would be completely inconsistent with her alleged injuries. The only problem was that the plaintiff’s page was private, accessible only to her friends. The secretary asked to be a “friend” of hers, and her request was granted. The secretary saw that the plaintiff was engaged in all sorts of athletic activity that belied her alleged injuries. The euphoria of investigative triumph vanished quickly, as a more experienced person pointed out that none of this could be used as evidence.
While there is not an abundance of law addressing the use of social media in the legal arena, one law that seems to be a major guiding beacon is the Stored Communications Act (18 U.S.C. §§ 2701 to 2712 ). Section 2701 of the SCA provides criminal penalties for anyone who “intentionally accesses without authorization a facility through which an electronic communication service is provided or…intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system.”
In common practice, taking any proactive measures to induce someone to grant access to their online information may very well be a violation of the Stored Communications Act. As such, any evidence gathered by the means described above could be considered to be tainted. The watchword for social media and internet investigation could be simply stated as “Look but don’t touch.”
Another factor to consider in social media/internet investigations is how any evidence gathered will be introduced to the case. Obviously, the evidence doesn’t stand on its own. It is very similar to surveillance video, in that one has to show how the evidence was obtained, and how it was preserved. Thus, the person who collected the evidence needs to be available, as a witness, to testify as to the information collected. One should keep that “end game” in mind. As in the earlier example, having a secretary testify in support of evidence she collected may not make for the strongest case. Is she trained in the preservation of evidence? Does she have enough experience in these investigations to undertake due-diligence thoroughness, to obtain a complete picture of all available information? Having the investigation done by a professional private investigator avoids these kinds of issues.
As to the quality of the evidence gathered, it is helpful to bring to mind the quote by the great physicist, Albert Einstein, who famously said, “Don’t believe everything you read on the Internet.” I think I picked up that quote on Google. Of course, the point is that no matter how things appear on someone’s Facebook page (or anywhere on the internet), reality may be different. It is tempting to see some juicy tidbit on a social media page and “pull the trigger” on it. A better bet is to verify that tidbit as best one can before acting on it.
This reminds me of another matter. I’m pretty good at retouching photos, and a family member wanted me to retouch a wedding photo to get someone out of the picture. It was a beautiful shot of a wedding at a beach, but a guy in the background ruined the effect. I spent about 2 hours painting him out of the shot, blending in the scenery to seamlessly match the beach background. This was a perfectly realistic “don’t believe everything you see” photo. When I showed it to the family member, she said, “That’s great! I’d like to be able to do that! …What button do you press?”
At that point, I felt somewhat under-appreciated, because she did not appreciate the expertise required to retouch that photo. She thought the computer did it all, and all one needed to do was just “push a button.” When doing a social media/internet investigation, it is important to have a thorough job done of it, and not do a “press the button” job by checking Facebook and Twitter and calling it a day. The internet is a constantly changing universe – old stand-by sites become stale with disuse as people lose interest, while new, cutting edge sites have fresh information. If one doesn’t do a thorough and diligent search, one will never know what other information is out there, beyond the obvious sites.
As the subject of social media becomes more established in legal practice, and as more case law develops, there is no doubt that industry standards will become more formalized and regimented than they are now. At this stage in the growth of this media, we are all in a position to help shape and define the outcome of this subject area. In the meantime, I hope that some of the observations above thus far are useful to you.
About the Author
Clifford Mosby is supervisor at Stein Investigations in Los Angeles, CA. He has worked major celebrity cases, airline crash cases, and major product liability cases, among others. He has been interviewed on CNN, KCET, KNBC, KTLA, KABC and KCBS, and featured in American Lawyer Magazine, Fact Sheet Five and Ebony Magazine. He can be reached at email@example.com.