Social Media E-Discovery: a New World of Proof

Social Media E-Discovery: a New World of Proof

A Facebook post can provide the key piece of evidence that puts a guilty person in jail… or keeps an innocent one out

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A judge in Connecticut recently ordered the husband and wife in a divorce case to exchange Facebook passwords and their logins to online dating sites in order to allow lawyers for both sides access to social media evidence he deemed relevant to the investigation. The request was apparently made when the wife made comments on Facebook that the husband wanted to use to bolster his case for full custody of the couple’s children.

While this seems like an extreme case of social media exposure, the courts are seeing more and more requests for access to, and evidence from, social media sites. And it’s not surprising, considering the vast amount of information being exchanged on them.

Whole New World

“We are entering an entirely new world of communication, unprecedented in human history,” attorney Benjamin Wright, an author, e-discovery expert and instructor at SANS Institute. “Social media makes e-mail look like stone tablets, in terms of the flexibility of communication, the volume of communication and the multiplication of copies of communication. I believe that our legal system is only beginning to scratch the surface of the questions related to how we gather evidence, how we respect privacy and how we authenticate the evidence in the courtroom,” he says.

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In another recent case, a New York teenager’s Facebook status update provided evidence that helped to keep him out of jail. The teen had been arrested for a mugging in Brooklyn. Despite his insistence that he wasn't connected to the crime, the boy spent nearly two weeks in jail before his father discovered a Facebook status update he had made from his Harlem apartment one minute before the mugging, which was12 miles away. The boy was cleared of the charges based on the electronic evidence.

Gathering Evidence

Social media can certainly be a useful tool for e-discovery when used responsibly, and it can sometimes be incredibly easy to access evidence on these sites. If parties in a dispute leave their personal sites open for public consumption, the evidence is generally accessible to anyone, although there can be limitations on copyright and use of pictures, warns Wright.

When a party in an investigation has a social media profile with tight privacy settings, getting access to the information can be more difficult. A court may order that passwords be disclosed, as in the case above, but this is extreme. 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.

Ethics of Access

There have been cases in which parties in a dispute have ‘friended’ someone to get access to their social media posts, and this has so far not held up in court. It also violates Facebook’s terms of service.

“Lawyers and private investigators have ethical requirements,” says Wright. “Interpretation of those ethical requirements is that these professionals will not engage in deceit. Professionals need to think very carefully before they use some kind of deceit in order to be ‘friended’ by someone else,” he says, adding that in the right circumstances, police officers working undercover may be justified in assuming an identity to gather evidence, based on the acceptable rules and procedures of a legitimate undercover investigation.