Increasingly claims professionals and attorneys (among others) are turning to social media to conduct research for their investigations. Whether the intended purpose is to examine the validity of a claim or gauge the veracity of a plaintiff, investigators are finding new ways to leverage the information accessible on sites such as Facebook and Twitter. But glimpsing into the veritable treasure trove of intelligence found on these social media sites is not without caveats. Claims Christina Bramlet spoke with Attorney Deborah A. Lujan to learn about what is admissible in court and what ethical considerations a prudent investigator should evaluate prior to making new “friends.”

Are social networking sites useful for lawyers and investigators?

Yes. Facebook and Myspace are social networking websites where users are allowed to add friends, and access to their accounts may provide useful information. However, if a claimant/plaintiff and/or potential employee has taken reasonable steps to keep the information private, then they have a privacy interest in the information and/or their Web page. The Stored Communications Act (SCA) is a federal statute that prohibits third parties from accessing electronically stored communications—for example, e-mails or 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 which an electronic communication service is provided”; or (2) intentionally exceeds an authorization to access facility and thereby obtain . . . an electronic communication while it is electronically stored in such a system.” The Electronic Communications Protection Act defined electronic storage as “any temporary immediate storage of a wire or electronic communication incidental to the electronic transmission or communications by electronic communications for purposes of such communication.”

However, if a claimant has a Web page that is accessible and open to internet users indiscriminately wherein he or she posts personal information and has not taken any reasonable steps to keep the information private, then that information can be used by a defendant if it is determined to be reliable.

How can information obtained from networking sites provide useful tools in discovery?

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

Are there ethical considerations for lawyers and investigators?

If a lawyer is prohibited to engage in contacting a claimant or a plaintiff, then a private investigator or third party would be as well. Attorneys can be disciplined for enlisting a third party to “friend” a witness or claimant on Facebook or Myspace. Both state and national bar association rules of professional conduct prohibit attorneys from engaging in activities that could be viewed as dishonest, fraudulent, and a misrepresentation. However, lawyers and third parties may use information they obtained that is publicly available.

Is information obtained from social networking sites admissible in court?

The applicable rules of evidence govern the admissibility of social media as evidence. The proponent of the evidence will have to demonstrate that the evidence is relevant. Further, the evidence's probative value must outweigh the danger of unfair prejudice, confusion, and misleading the jury—for example, an entire Facebook page may not be admissible, but relevant portions may 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 as admissions by a party-opponent, or the present sense impression of a witness. Inadmissible hearsay may include “wall-postings” or other “comments” from third parties.

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

Do social networking sites have to comply with subpoenas?

There is no question that social networking sites must comply with government subpoenas if they relate to criminal matters or investigations. However, it is unclear whether social networking sites must comply with civil subpoenas from parties requesting information about another customer's account. At least one court has enforced such an order (a Federal District Court sitting in Colorado), but an argument exists that the Federal Stored Communications Act, 18 U.S.C. § 2701, prohibits social networking sites from disclosing information about a user's page to anyone other than the user himself. The act provides that a person or entity providing an “electronic communication service” or “remote computing service” to the public “shall not knowingly divulge” the contents of a communication “while in electronic storage by that service” or “which is carried or maintained on that service….” The act contains exceptions for requests from the “originator” of the communication and the intended recipients, as well as government agencies if the subpoenas relate to a criminal investigation.

Courts have held that Web-based e-mail providers such as Google Mail and Yahoo! Mail fall under the terms “electronic communication service” or “remote computing service” and are therefore prohibited from releasing the contents of a customer's e-mail account pursuant to a civil subpoena. If a court were to conclude that social networking sites also fall under these terms, then the sites could contend that they are prohibited under the act from releasing information about their users' pages. The law on this issue is currently unsettled.

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