Increasinglyclaims professionals and attorneys (among others) are turning tosocial media to conduct research for their investigations. Whetherthe intended purpose is to examine the validity of a claim or gaugethe veracity of a plaintiff, investigators are finding new ways toleverage the information accessible on sites such as Facebook andTwitter. But glimpsing into the veritable treasure trove ofintelligence found on these social media sites is not withoutcaveats. Claims Christina Bramlet spoke with AttorneyDeborah A. Lujan to learn about what is admissible in court andwhat ethical considerations a prudent investigator should evaluateprior to making new “friends.”

Are social networking sites useful for lawyers andinvestigators?

Yes. Facebook and Myspace are social networking websites whereusers are allowed to add friends, and access to their accounts mayprovide useful information. However, if a claimant/plaintiff and/orpotential employee has taken reasonable steps to keep theinformation private, then they have a privacy interest in theinformation and/or their Web page. The Stored Communications Act(SCA) is a federal statute that prohibits third parties fromaccessing electronically stored communications—for example, e-mailsor Facebook entries—without proper authorization. (18 U.S.C.Section 2701)

Therefore, under the SCA, an offense is committed if anyone (1)intentionally accesses with authorization a facility through whichan electronic communication service is provided”; or (2)intentionally exceeds an authorization to access facility andthereby obtain . . . an electronic communication while it iselectronically stored in such a system.” The ElectronicCommunications Protection Act defined electronic storage as “anytemporary immediate storage of a wire or electronic communicationincidental to the electronic transmission or communications byelectronic communications for purposes of suchcommunication.” 

However, if a claimant has a Web page that is accessible andopen to internet users indiscriminately wherein he or she postspersonal information and has not taken any reasonable steps to keepthe information private, then that information can be used by adefendant if  it is determined to bereliable. 

How can information obtained from networking sitesprovide useful tools in discovery?

Information obtained from social networking sites can provideuseful material with which to attack the credibility of a claimant,witness, or expert. For example, a claimant/plaintiff testifiesthat he cannot eat, drink, or smoke, yet photographs of that persondrinking and/or smoking surface. This type of evidence can be usedto impeach plaintiffs and witnesses. 

Are there ethical considerations forlawyers and investigators?

If a lawyer is prohibited to engage in contacting a claimant ora plaintiff, then a private investigator or third party would be aswell. Attorneys can be disciplined for enlisting a third party to“friend” a witness or claimant on Facebook or Myspace. Both stateand national bar association rules of professional conduct prohibitattorneys from engaging in activities that could be viewed asdishonest, fraudulent, and a misrepresentation. However, lawyersand third parties may use information they obtained that ispublicly available. 

Is information obtained from social networking sitesadmissible in court?

The applicable rules of evidence govern the admissibility ofsocial media as evidence.  The proponent of the evidencewill have to demonstrate that the evidence is relevant. Further,the evidence's probative value must outweigh the danger of unfairprejudice, confusion, and misleading the jury—for example, anentire Facebook page may not be admissible, but relevant portionsmay be used. Witness statements on social media may be hearsay.Some federal courts have held that Facebook pages are hearsay.Thus, the statements must fall under a hearsay exception, such asadmissions by a party-opponent, or the present sense impression ofa witness.  Inadmissible hearsay may include“wall-postings” or other “comments” from third parties.

Social media must be properly authenticated because it ispossible to create a Web page with another person's name on it.Tips for authentication include providing testimony of the personwho obtained the Web page; when and how it was done; and affirmingthat copy is accurate, or subpoenaing the material directly fromthe source. The proponent of the evidence may also submit otherevidence to support that the author of the web materials actuallywrote it, such as an admission by the author (if attainable), thetestimony of a witness who observed the creation of the Web page,or contents of the Web page that connects it to theauthor. 

Do social networking sites have to comply withsubpoenas?

There is no question that social networking sites must complywith government subpoenas if they relate to criminal matters orinvestigations. However, it is unclear whether social networkingsites must comply with civil subpoenas from parties requestinginformation about another customer's account. At least one courthas enforced such an order (a Federal District Court sitting inColorado),  but an argument exists that the Federal StoredCommunications Act, 18 U.S.C. § 2701, prohibits social networkingsites from disclosing information about a user's page to anyoneother than the user himself. The act provides that a person orentity providing an “electronic communication service” or “remotecomputing service” to the public “shall not knowingly divulge” thecontents of a communication “while in electronic storage by thatservice” or “which is carried or maintained on thatservice….”  The act contains exceptions for requests fromthe “originator” of the communication and the intended recipients,as well as government agencies if the subpoenas relate to acriminal investigation.

Courts have held that Web-based e-mail providers such as GoogleMail and Yahoo! Mail fall under the terms “electronic communicationservice” or “remote computing service” and are therefore prohibitedfrom releasing the contents of a customer's e-mail account pursuantto a civil subpoena. If a court were to conclude that socialnetworking sites also fall under these terms, then the sites couldcontend that they are prohibited under the act from releasinginformation about their users' pages. The law on this issue iscurrently unsettled.

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