Social Network Websites and E-Discovery
By Ken LaMance
Common uses of social network websites in legal investigations
An “online social network website” is an internet tool that allows people to connect with friends and acquaintances via the internet. These websites typically require users to create a user profile, and facilitate such activities as chats, instant messages, and digital photo uploading for posting on the profile. Many sites allow users to post a “status update” that informs other people in the network of a person’s activities. These social network sites have become part of many people’s daily routines, oftentimes even being used by employers as part of their daily business activities. Some of the most common social networking websites are MySpace, Facebook, Twitter, and LinkdIn.
As explained in a previous article, the content published on a user’s profile page is considered to be “Electronically Stored Information”, or ESI. According to the Federal Rules of Civil Procedure, ESI can be obtained during the discovery phase of a trial to be used as evidence against the person. In other words, what you post can eventually be used against you in a court of law. Indeed, the use of the information found on such websites in legal proceedings has become the norm rather than the exception. This is because people often post the more private details of their lives on these sites. Lawyers are now utilizing this private information in the most varied and unimaginable ways to prove guilt in a court of law. This article outlines the more common uses of social network sites in a court setting.
Criminal Proceedings
ESI obtained from social network sites are being used in myriad ways in criminal proceedings. These websites are used in proving everything from intoxication and alcohol abuse to possession of firearms. In particular, the photographs posted on user profiles can be literal treasure troves for prosecutors, since, “a picture paints a thousand words”.
The classic criminal case that one thinks of in regard to social network websites is the predator/stalker/sexual assault case. This situation usually involves two people who meet each other via a social network website. Many people often create fake profiles in order to create alter egos and false identities. Often it is the case that one person is underage, and the other may be a former criminal or an online predator or stalker. The two people end up meeting each other in person, which can lead to a sexual assault or a related crime such as statutory rape.
For example, in 2007, a Texas girl arranged such a meeting with a 19-year old man. She claimed to be 18, but in reality she was only 12. After the two met and allegedly had sex in a parking lot, her parents sued MySpace for negligence. The Texas judge denied the family’s $30 million claim, stating that the parents, not MySpace, should be held liable for the girl’s activity. This court’s ruling is typical of such cases- the parents, and not the website companies are held liable for their children’s activities. With regards to parental liability, courts have stated that it is the parent’s responsibility to raise children, not the website’s.
In the wake of such online predator cases, many social network sites have features that allow parents to track the online activities of their children and teens. For example, there are many “MySpace trackers” online that allow parents access to their children’s profiles. Many have debated the usefulness of such trackers, since many youth create fictitious accounts in the first place.
The relation between social network websites and criminal activity has become so marked that there are several websites dedicated to posting the latest news on criminal activity that is linked to such sites. An example of such a site is MyCrimeSpace.com, which posts its online news findings in a format similar to that of MySpace.
Employment Situations
Another typical use of social networks in legal cases is in an employment setting. Many employers now make it routine practice to check user profiles before hiring employees. It is also common practice for employers to regularly visit the profiles of their employees in order to verify conduct or work attendance. Imagine coming to work the week after “calling in sick”, only to be fired because the boss saw the pictures of your vacation online!
In a recent case, Spanierman v. Hughes, 2008 U.S. Dist. LEXIS 69569 (D. Conn. Sept. 16, 2008), a high school teacher was fired for the way he used MySpace. He claimed that he was using the site to communicate with his students. However, his profile page contained several inappropriate pictures, and after students complained, the school conducted an investigation and subsequently fired him. As you can see, the online conduct need not be intentional in order to prove guilt.
The main point that workplace cases raise is that one can get fired or sued even for conduct that occurred while they are away from the workplace! This means that the boundaries between private and public are quickly eroding as the internet makes more of our personal lives available for scrutiny.
School Policies and Alcohol Abuse Violations
Another favorite use of social networking websites is in the enforcement of school policies. Most users of social websites are minors and teens such as college and high school students. Many sites set an age requirement of 18 (though this is easily circumvented by a fake profile). Several schools have begun to use Facebook to enforce school policies, in particular, for enforcing underage alcohol abuse.
To illustrate, in 2008, Emory University issued citations to a number of students who belonged to a Facebook group named “Dobbs 2nd Alcoholics”. The name referred to students who lived on the second floor of one of the residential dorms. They were reprimanded for violating dorm alcohol policies. In the past, such enforcement was not possible unless the school had direct surveillance of the students. Now, it is much easier for the academic board to issue a violation.
Other ways in which schools now use social networks to enforce activity are with regards to sports and academic teams, and student groups such as clubs, fraternities or sororities.
Businesses that Use Social Networks in the Office
Many businesses often use social network websites as part of their everyday operations. For example, many companies use the websites as ways to gain marketing access; other companies encourage their use for communication between employees. Even government entities have been known to use Facebook as a way to communicate with local citizens.
Some companies have even gone so far as to replace traditional e-mail with a website such as Facebook. This can raise interesting questions, especially when discussing financial matters. For example, if the human resources department authorizes an employer to cash a check, but sends this memo in a Facebook message, how is this to be accounted for in the company’s financial records? What if the messages are deleted or erased over time?
For such businesses, the main consideration is accounting. As with all electronically stored information, the information stored on social networking sites are subject to erasure, and often are not very well protected from hackers. To address this concern, some websites are being created specifically for businesses that contain features dealing with archiving and transferring message updates into an e-mail format.
Preserving electronic records of transactions is the main concern for businesses, since many courts have severely penalized companies for deleting or erasing business records. This is even more true if the records have been requested for trial.
So, if your business utilizes a social network as its main method of office communication, bear in mind that the biggest challenge in discovery of online information is that the encrypted data can be erased. Such information is also typically very difficult to wade through and sort out for trial purposes. This is largely because the information on these websites is in “constant flux”; that is, the posts and updates are constantly changing from minute to minute.
The best thing a business can do to protect itself from civil liability is to make sure that business records are well archived and neatly organized. There are several technological tools that the IT branch of a business can look into for such purposes.
Concluding Remarks: The “Death of Privacy”?
Many authors have called the explosion of social network websites “the Death of Privacy”. While privacy is not completely dead (we still have many Constitutional rights to privacy), as mentioned before, the line between public and private is increasingly getting blurred. As the public life spills over into the private, and vice versa, what we say and do online begins to have greater legal consequences than in the past. As for the legal system, it is probably safe to say that it is experiencing a look into the private life like never before.
Ken LaMance is the corporate counsel for LegalMatch in San Francisco, California. LegalMatch is fast, free, and confidential. LegalMatch is America’s original attorney/client matching service and is not a referral service. When a consumer presents their issue to LegalMatch, our system matches the consumer’s case to LegalMatch lawyers in their city or county based on the specifics of the consumer’s case, lawyer’s location, and area of legal practice. LegalMatch also offers a number of useful resources like an online law library, tips, law blog, and legal forums on nearly every topic.
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