When J.A. Barnes, a social anthropologist, studied a Norwegian fishing village and coinedthe term “socialnetwork” in the 1950s, few could have imagined that the adventof personal computers in the 1970s and the Internet in the 1980swould spawn the social networking services that today connectnearly half of the world's population.

The web-based and mobile technologies and applications nowcomprising social media power much of today's commercial and socialcommunications, providing individuals and businesses with limitlessopportunities to generate and publish electronic content: content that sometimes conflicts withpolicy application representations or the reported facts ofinsurance claims.

Internet-based social networking platforms rest on the premisethat people of similar personal or professional interests want tointeract, and the efficacy of a social network depends on suchpeople first being able to find one another. One cannot download amobile application today without being asked to share its useor permit entry into its data by certain social networking sitessuch as Facebook. Indeed, Facebook has become a nearly universalmeans of logging into many applications, rather than establishingapplication-specific profiles and logins.

Personally Identifiable Information

To facilitate users being able to find one another, socialnetworking sites encourage, or some would say require, users tocreate profiles containing numerous pieces of personallyidentifiable information. Some have observed that a fullyfilled-out Facebook profile contains about 40 pieces ofrecognizably personal information, including name, birthday,political and religious views, online and offline contactinformation, gender, sexual preference and relationship status,favorite books, movies, and so on, educational and employmenthistory, and, of course, the user's picture.

Once established, a user's profile serves as the fuel for publicand site-specific search engines, enabling others to find, observe,connect and share. And share they do. Social networks thrive onusers pushing detail-rich text and image content previouslyconsidered to be private in an increasingly public direction. The what, when,where, how, and why of users' personal and professional livesbecome the stuff of wall postings, status updates, check-ins, andtweets.

Debates as to why people broadcast so much personal and private information aside,social media content provides insurers of all types withopportunities to mine text, images and metadata that can be usefulin the investigation and evaluation of both first- and third-partyinsurance claims. Insurers must be careful, however, to make surethat any gold they mine from social network and media content isnot fools' gold for, as Abraham Lincoln is quoted on the Internetto have once said, “The problem with quotes on the Internet is thatyou never know if they're real.”

Search engine result pages are now replete with numerousexamples of insurers having successfully utilized social mediacontent in insurance claims decisions. From the denial offurther long-term disability insurance benefits to the recovery ofa paid but fraudulent auto physical damage claim, insurers havefound that social media content can in some cases provide the meansof determining whether a claim is legitimate or not. The potentialusefulness of social media content can extend beyond the point intime when the claim decision is made, as such useful contentsometimes appears after payment is made and well within theapplicable statute of limitations for an action to recover suchpayment.

Standardized Protocols

Insurers interested in using social media content in claims investigations and decision-making should first designand develop standardized and responsible protocols for finding,securing, verifying and utilizing such content. Although eachand every claim should be investigated and reviewed on its ownfacts, insurers know that evidence of non-uniform claims handlingforms the basis of extracontractual liability causes of action inpolicyholders' and insureds' complaints against them. For this andother legal reasons, insurers should consider and decide under whatcircumstances social media research will be conducted, who will begiven and permitted access to social networks and media forinvestigative purposes; what company hardware and software will beused for such research; what restrictions, if any, will be placedon the methods used for such research; whether only public or bothpublic and protected content will be sought; what methods will beused for securing social media content thought to be relevant anduseful to claims; and what methods will be used for verifying suchcontent before it will be considered reliable enough to base aclaim decision in whole or part.

Finding Content Responsibly

There are essentially only two ways of finding and securingsocial media content that may be relevant to a first- orthird-party claim: with the insured's or claimant's knowledge, orwithout it. Permission to access public or unprotectedcontent is presumed. After all, tweets from an unprotectedTwitter account are the functional equivalent of texting to theInternet and theoretically remain searchable and findable for aslong as the Internet remains on.

Finding relevant social media content can be likened to fishing withoutelectronicswithout the electronic fish finder, water temperature,depth, and contour graphs, anglers must rely on some raw knowledgeand basic premises for finding fish. Familiarity with a particularbody of water will help, but not guarantee a decent catch. In thesame way, being familiar with the various popular and obscuresources of social media content and how those sources store users'text, images, and metadata becomes invaluable to increasing one'schance of finding relevant and potentially useful data.

If the Internet is a haystack, then a single item of text orphotographic imagery is the needle insurers seek. Knowing aninsured's or claimant's profile name or email address is a goodstart. Finding an insured's or claimant's social networking profileand social media content is the goal. The spread, however, of suchinformation across the Internet can either be concentrated toparticular social networking or media sites, like a hole or area ofschooling fish, or wide and sporadic across bulletin boards andclub or organization websites, like territorial fish that prefertheir own space. Skill, perseverance, and sometimes luck arenecessary for finding relevant social media content.

Other than in Minnesota, there currently exists no statutory,regulatory, or decisional law in the U.S. prohibiting insurers fromusing pretextual means to gain access to protected or non-publicsocial media content. Minnesota Statute 72A.493 prohibitsinsurers and their agents from obtaining information in connectionwith an insurance transaction by pretending to be someone else ormisrepresenting the true purpose of an interview. “Falsefriending” to gain access to a person's protected or friends-onlyFacebook content, for example, would likely violate that statuteprovided the purpose of doing so related to a qualifying “insurancetransaction.”

Thirteen other states, however, expressly permit pretextinterviews to obtain information in connection with an insurancetransaction where there is a reasonable basis for suspectingcriminal activity, fraud, material misrepresentation, or materialnondisclosure in connection with an insurance claim. It may only bea matter of time before an insurer that uses pretextual methods tosecure protected or non-public social media content is challengedin court for doing so. The potential consequences of obtaining suchcontent by pretextual means potentially range from bad press to badfaith or extracontractual liability. Insureds and claimants havealready argued that their protected social networking and mediacontent is private, even though it is openly shared with hundredsor even thousands of their Facebook and MySpace “friends.”

Once a claim becomes litigated, however, accessing protected ornon-public social media content may be possible with the user'sknowledge, but without his or her permission. There is a growingline of trial and appellate court case law in the U.S. upholding aninsurer's or insured's right to discover the protected content of aplaintiff's or claimant's social networking account, provided thediscovery demand for such content is both: narrowly tailored toproduce relevant information and reasonably calculated to lead tothe discovery of admissible evidence. Supporting such a discoverydemand, however, may require the insurer already to have securedsome content that contradicts the plaintiff's or claimant's claim,something that is difficult or even impossible to do without eitherutilizing pretextual means or gaining such content from existing“friends” of the plaintiff or claimant.

Social Media and Subpoenas

As recently as 2009, social networking providers such asFacebook and MySpace would provide user content if served with acivil subpoena. Starting in mid-2010, however, Facebook and MySpacebegan successfully challenging and quashing civil subpoenas underthe Federal Stored Communications Act of 1986. Of course, users ofsocial networking sites may still obtain the content of their ownaccounts, which may be why in early 2011 Facebook created the meansby which its users could download their entire Facebook content.Insurers can also gain access to an insured's or claimant'sprotected Facebook account with a signed authorization from suchpersonsomething some courts have ordered in the context oflitigated claims.

Insurers that conduct social media research should also considerusing IP-address anonymizing software, browsers, or websites forvisiting sites such as business websites and blogs on which userscan track visits. Knowing which social networks allow users to“see” who's visiting their profiles or pages can also be valuable.Always use protection when conducting social mediaresearch.

Content Security

Any insurance coverage litigator will tell you that findingsocial media content relevant to a claim will not be useful unlessit can be and is secured in an evidentiary form. It is not just thetext and images that should be secured and preserved; be sure tosave the metadata as well. Metadata resides in nearly allelectronic files and can prove to be especially useful in thedetection and identification of fraudulent claims. Word and PDFdocuments, Excel spreadsheets, image files, and videos likelycontain metadata that can reveal authorship, creation andmodification dates, and, for photos or videos taken with aGPS-enabled device, even location where the photo or video wastaken.

Insurers interested in using social media content should designand develop a procedure for securing such content in a form bestsuited to ensuring its admission into evidence, should such contentform the basis of a claim decision that is challenged in litigationor arbitration. Mere screen prints or captures may not besufficient, and insurers should always endeavor to preserveelectronic files they receive via email or on storage media fromtheir insureds or claimants in those files' native, original formso as not to overwrite or disturb the files' originalmetadata.

Social media content is electronically stored information (ESI)and the rules of electronic discovery in state and federal courtsapply to such content. In cases where an insurer believes aninsured's or claimant's protected but as-of-yet unaccessed socialnetworking account may be relevant to that person's claim, it mightconsider sending an ESI-preservation letter along with orimmediately after its coverage position letter, instructing theinsured or claimant not to take down or destroy existing socialmedia content. The doctrine of spoliation has already been appliedto social media content, albeit not yet in an insurance claimscontext. There is nothing to say it will not apply to litigatedfirst- and third-party insurance claims.

Verifying Information

In a now famous cartoon published in The New Yorker in1993, Peter Steiner captioned his drawing of a canine sitting at adesktop computer speaking to a canine on the floor below, “On theInternet, nobody knows you're a dog.” That cartoon best sums up thereason insurers must verify whatever social media content they maybe able to harvest as potentially relevant from the Internet.Unless and until the purported source of the text or images isverified, it will not be considered reliable enough to be admittedinto evidence if the claim under investigation were to be deniedand litigated and, therefore, should not form the basis of adecision as respects that claim.

In spite of the popular myth that insurers will look for andlatch onto any reason to deny a claim, insurers know that claimsdecisions must be based on facts that can be proven in litigationor arbitration, and that the provability of such facts depends onthe admissibility of the evidence comprising or representing suchfacts. There exist numerous and varied direct and indirect methodsof verifying social media content that has been found and secured.The insurer best prepared to defend its claim decision is the onethat has done so before making that decision.

Utilizing the Data

Once found, secured and verified, the text, images and metadatacomprising social media content can be useful in evaluating first-and third-party insurance claims. No one legitimately can disputethis. The wealth of information publicly available on socialnetworking websites and services can no longer be ignored oroverlooked. Indeed, some have opined that it would beprofessionally irresponsible or inadequate for an insurer not atleast to consider that social media content may be available toassist it in reaching a claims decision. In their defense of theirinsureds against third-party claims, insurers arguably shouldalways consider this possibility vis-à-vis the individual claimant.Insurers should regard such information, however, in the same waythey regard other sources of information they routinely utilize toevaluate claims, taking care to base their claims decisions on asmuch credible and verified information as possible.

Although the technologies, demographics and law concerningsocial media continue to change and develop, the use and usefulnessof social media content in investigating and evaluating insuranceclaims are here to stay.