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.” 

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