Chapter 1: Accessing Social Media in an Investigation
With so much information being exchanged and shared online, it makes sense to see social media as a rich source of material for both plaintiffs and defendants to use in investigations, but getting access to the relevant data isn’t always a simple matter of clicking on a page. Many users of social media have privacy settings that restrict access to the information they post.
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In certain cases, the court has ordered that passwords be disclosed, but this is extreme. The decision to order the exchange of log-in information has been based on evidence showing that something relevant to the investigation is probably in the private or non-public part of a social media page.
A judge might request a user to provide the evidence from his or her own social media pages to lawyers for the other side. But without a formal request for disclosure, investigators and attorneys may be left with some difficult dilemmas.
Recent cases in which parties in a dispute have ‘friended’ someone to gain access to their social media posts have shed light on what the courts consider to be acceptable. Evidence gained by this kind of deception has not held up so far. It also violates the terms of service set out by some social media platforms and has prompted some states to address the practice in writing.
The California Penal Code 528.5 says: “Any person who knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person is guilty of a public offense.”
The Connecticut Rules of Evidence Section 52-184a says: “No evidence obtained illegally by the use of any electronic device is admissible in any court of this state.”
Even when information is publicly available, though, there can be legal issues related to its discovery, warns attorney Benjamin Wright, who is an expert in e-discovery as well as an author and instructor at SANS Institute. These can include copyright violations and privacy violations based on statements they may have written on their social media pages.
The amount of data an investigator seeks permission to collect should be proportionate to the case under investigation. Wright says that “if the request is not targeted, proportionate to the seriousness of the case and rationally based on already-known evidence, the request may be blocked.” Investigators need to have a sense of restraint and have a good reason for requesting the information.
As Pennsylvania employment lawyer Eric Meyer writes in his blog post, Your employees’ “private” Facebook posts are not private, “the party seeking discovery of evidence must be able to demonstrate that the information sought is reasonably likely to lead to the discovery of admissible evidence.” This means that employers can’t go rooting through an employee’s social media accounts in hopes of finding something. Requests to access an employee’s social media account(s) must demonstrate a valid reason to believe that there’s information in their profile that’s relevant to the issue under investigation.