By RICHARD B. HARER, VICE PRESIDENT, SPECIALIZED INVESTIGATIONS

The proliferation of social media sites, and the information they contain, has created a significant “tool” for the legal and investigative industry. With over 400 social media sites currently in existence, and well over 1 billion users, the availability of information on almost anyone and any topic is just a few clicks away. However, one must not only recognize the value, but also the limitations. Many legal, ethical and evidentiary issues have arisen in recent years, perhaps making it one of the fastest evolving areas of law today.

This article will explore some of the research and investigative resources available, as well as some of the issues already raised regarding the information developed, and will continue to raise for years to come.

Social Media: A Required Tool

Social networking sites have become such “standard tools” that Peter Foley, Vice President of claims at American Insurance Association, said that investigators and (legal researchers) could be considered negligent if they didn’t conduct at least “a quick scan of social media to check for contradictions.”

However, Foley and other insurance experts caution that the information should be used only as launch pad for further investigations and never as final proof of fraud.  Manulife, citing ongoing legal proceedings, declined to comment on a recent case involving information developed on a social media site that contradicted an insured’s disability claim, but said in a statement, “We would not deny or terminate a valid claim solely based on information published on websites such as Facebook.”

Examples of Investigative Use

Surveillance cases can benefit immensely by obtaining photos, habits, activities, and other pertinent information on the subject before initiating surveillance. Our firm was hired to conduct surveillance on a recent high profile personal injury case. We found through basic social media research that the subject was self-employed as a trainer at a local gym. His site provided his regular schedule and other upcoming outside training events that he was leading. Needless to say, the surveillance was extremely successful…thanks to the subject, and his social media activities.

Locating witnesses, insured, claimant, and others is another excellent use of social media sites. Our firm has tracked down many difficult and elusive individuals through their social media sites. Recently, we were able to serve subpoenas on several individuals by finding out where they were scheduled to play in a band at a local club.

Background information, character, habits, activities, financial information, and other useful information can also be obtained. In a recent case we investigated, an individual filed a disability claim with her employer, alleging that she was unable to type due to work-related continuous trauma to her wrists/hands. We found her on numerous social media sites, including Twitter, where she was posting (typing) dozens of “tweets” daily, as well as on other sites. In addition, she made numerous derogatory statements about disliking her job and her boss, which was further evidence of her motive for filing a work-related claim.

Identifying relationships/accomplices is also an excellent source of information on social media sites. We have investigated a number of suspected fraud cases, where we discovered that individuals who stated they did not know another party involved in their claim, were subsequently found to be “friends” on Facebook.

There are many other benefits of social media research and investigation, which is only limited by the researchers’ imagination…and time.

The following is a list of the ten most popular social media sites in the US (as of August 2011):

1. Facebook

2. Twitter

3. LinkedIn

4. MySpace

5. Ning

6. Google Plus+

7. Tagged

8. Orkut

9. hi5

10.myYearbook

A list of most social networking sites can be found at http://en.wikipedia.org/wiki/List of social networking websites

The following are several of the most popular social media sites in the US:

FACEBOOK

Facebook is a social utility that connects people with friends and others who work.  “It’s free, and always will be.”

Over 200 million viewers signed up in less than 8 months. There are now over 850 million viewers, and they expect to reach 1 billion viewers in 2012. That’s half of all people on the internet and 1 in 7 of all people on the planet.

However, if you are one of the over 50% who are not signed up with Facebook, you can access some of the information through the following website: www.youropenbook.org  Openbook “allows you to see the same thing without having to be in Facebook at all.”  When you go to Openbook, it can show search results for any topic, such as “legal secretaries.”

GOOGLE +

Google + is one of the fastest rising stars in the social media world, with over 40 million users in less than 6 months. Their strategy to capture some of the market share centers on protecting the privacy rights of their users. For example, anyone who signs up with Google+ but wants out can leave and download all their data to take with them by using “Google Takeout,” a feature not offered by Facebook.

Also, built into Google+ are a number of options that allow users to determine who gets to see what they post… from full blown public sharing to specifying one or two “Circles” of friends, to even individual Google+ users, in order to keep things a bit more private.

LINKEDIN

LinkedIn is a very popular social media site in which professionals in many different industries and areas of expertise send “invitations” to connect with other professionals as a networking tool. There are thousands of professional discussion groups in nearly every sub-group and topic imaginable…and growing rapidly.

Some important LinkedIn tips to be aware of are:

Who’s Viewed Your Profile? The settings may show your name as someone who has looked at another person’s LinkedIn profile. For example, the following setting options are available when setting up your profile:

When I view other Linkedin profiles, those users will see one of the following:

  • My name and headline: Example of displaying with name and headline: Name, Richard Harer, Title, Vice President at Specialized Investigations, Demographic Info, Greater Los Angeles Area/Security and Investigations;
  • My anonymous profile characteristics, such as industry and title:  Note: Selecting this option will disable Profile Stats. Example of displaying anonymously: Someone in the Leadership function in the Security and investigations Industry from Greater Los Angeles Area.
  • Nothing, I will be completely invisible to users I have viewed:  Note: Selecting this option will stop recording visits to your profile and disable Profile Stats.

You can select one of the above three profile settings that best fit your needs. You can also select a setting where others who “connect” with you will not be able to view your (uncommon) “connections.”

SOCIAL NETWORKING RESEARCH TOOLS

Searching hundreds of social sites for information would be time prohibitive. However, there are numerous “fee for service” and free sites available that act as “search engines” and can do some of the work for you, by searching dozens of social sites at once.  The following are only a few of these sites, with many other public record database providers creating their own social media “search.”

www.Skipsmasher.com  Enter an email address and search 2 dozen social network sites to see if the person has an online profile. This is a “fee for service” after approved sign-up;

https://clear.thomsonreuters.com/insurance.htm  According to their website, their public record database called CLEAR has “premium web searches that goes deep – much deeper than standard search engines – to quickly find, categorize and organize text and images from numerous sources,” including:

  • Social networks
  • Blogs and chat rooms
  • Business and corporate  data including business network sites
  • Hundreds of U.S. and  international newspapers, magazines, and newswires
  • Official watch lists   for sex offenders, felons, terrorists and other individuals and      organizations

Their social media search engine, Web Analytics, applies to person, business, and phone searches, and gives you the ability to search by screen names and email addresses. It categorizes results for quick, easy comprehension. The downside of this source is that there is a high monthly minimum fee (approximately $800) and a one year contract. However, they have recently begun offering other “packages” that are a little less expensive and less of a time commitment.

www.pipl.com  Described on their site as, “the most comprehensive free people search on the web. Pipl finds high-quality results in pages that cannot be found on regular search engines.” There are no sign-up fees;

www.yoname.com What’s yoName? Free people search across social networks, blogs and more. No sign-up;

http://wink.com  Described on their site as, “free search using the world’s largest people search engine. Find people by name and get their phone number, address, websites, photos, work, school, etc. Find a person online/names and screen names/social network search;

There are many other paid sites and free sites to select from. For example, there is a website where you can find various sites to search multiple social media sites at once at http://www.makeuseof.com/tag/how-to-search-multiple-social-media-sites-at-a-time

TWITTER

Twitter is another rapidly growing social media site, with over 100 million users (as of September 2011).  Twitter can be another valuable resource but has some limitations. For example:

  • Most Twitter content is public while private Twitter messages are stored on Twitter’s server until a user deletes them;
  • There is no contact information for Twitter users, making the site less valuable for gathering information;
  • You must have the user name to access Twitter postings by a specific person;
  • Twitter only retains the last login IP address and does not preserve data unless legally required to.

There are Twitter search engines that will enable you to conduct searches by any name and/or topic. The following are several Twitter search engines:

  • www.monitter.com   Web-based tool that allows anyone to monitor Twitter in real time for mentions of any words or phrases they choose;
  • www.twellow.com  A search directory of people by area of expertise, profession or other attribute listed in personal profiles on Twitter.

BLOGS

Blogs have become less popular as a social networking medium, especially amongst younger viewers, who are too busy (or distracted) to write lengthier posts. According to a recent New York Times article, “People are turning to other social networks to share and find opinions online. Twitter, Facebook, and blogging hybrids—such as Tumblr and Posterous—have made it even easier for Internet users to share their opinions.  However, there are still an estimated 122 million blog readers in the US (as of May 2011).  The following are several blog search engines:

  • www.google.com/leader  “Google readers constantly checks your favorite news sites and blogs for new content.”
  • http://blogsearch.google.com “Search settings/Sign in. Go to Blog search Home.  Advanced Blog Search.  Preferences Google Home- About Google Blog Search Beta Information for Blog”;
  • www.bloggerssearch.com  “Find blogs, bloggers and blogspot profiles.  If you are looking for a specific blog, search here first.”

MESSAGE BOARDS & FORUMS

There are thousands of message boards and forums on the internet, and one of the best sources of information available on an individual or group. The following are several sources to search for individuals or groups:

www.boardtracker.com According to their website, “Board Tracker is the leading search engine for message boards and forums and provides innovative search, analysis and social networking technology to bring people closer to the boards;”

http://search.big-boards.com    According to their website, “Big-Boards tracks the most active message boards and forums on the web. We currently have 2337 message boards in database!”

CRAIGSLIST

Craigslist is described as “a centralized network of online communities featuring free online classified advertisements, with sections devoted to jobs, housing, personals, for sale, services, community, gigs, résumés, and discussion forums. The ads are posted in the respective cities in the area where the posting party  is generally located. However, it can be tedious to search across many different cities when conducting research on a particular individual and/or topic. The following websites search across all Craigslist cities where ads are placed:

SOCIAL MEDIA RESEARCH: ETHICAL ISSUES

Eth.i.cal:  Being in accordance with the rules or standards for right conduct or practice, especially the standards of a profession. There are a number of ethical issues that have been raised surrounding access to information on social media sites and individual privacy. In short, any information that is accessible to the public is “fair game,” and is not protected by any 4th amendment right to privacy. In other words, if it can be located, read, and printed out from the internet, it can be used for any legal (or personal) matter needed.

However, things get a little “murkier” when researchers or investigators create fictitious profiles in order to “friend” or “connect” with someone to gain access behind their “walls” (created by privacy settings) to their “inner circle” of  “friends,” and (social media) conversations. What are the legal and ethical issues of creating a fictitious profile to obtain information? The following are several keys questions to address before utilizing this technique:

  • Is it ethical to directly or discreetly “friend” someone to gather information?
  • Is
    it an ethical practice in your profession?
  • Is it in compliance with the social site policy?
  • Is it in compliance with company policy?

The answers to these questions are not simple and clear cut. The laws vary from state to state and from industry to industry. Creating a fictitious profile may be considered a “pretext.” The definition of a “pretext” is, “The use of impersonation to trick another person into releasing personal information. An effort or strategy intended to conceal something.”

A pretext may be legally and ethically permissible in certain circumstances, such as in the case of a law enforcement “sting” operation. In addition, the insurance code section in at least 14 states allows the use of pretext for the following purposes: A pretext interview may be undertaken to obtain informationfor the purpose of investigating a claim where there is a reasonable basis for suspecting criminal activity, fraud, material misrepresentation or material nondisclosure in connection with a claim.

However, conducting a pretext to obtain information for other purposes may not meet the legal and/or ethical requirements in many states for other non-permissible purposes. Therefore, it is important to research your respective state laws regarding the specific purpose for conducting a pretext when developing information through a social media site on a case you may be researching.

Furthermore, some professions are held to a higher standard of ethical and legal conduct. For example, lawyers in most states must be truthful in all statements whether to the court, opposing clients or third parties. An attorney who engages in acts of deceit or collusion, or consents to any deceit or collusion with the intent to deceive the court or any party is guilty of a misdemeanor (California Business and Professions code sections 6068(d) and 6128).

Another important issue involves the use of a “pretext” in attempting to contact a “represented (by an attorney) party.”  In most, if not all, states, this is considered to be unethical conduct by attorneys or anyone working in their behalf. For example, in California, “While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer (California Rules of Professional Conduct, Rule 2-100).  This should be strictly interpreted as stating that an attorney cannot legally “friend” a party, on a social media site, who is represented by counsel. Furthermore, California legal ethics state that “the Rules of Professional Conduct do not distinguish between the activities of a lawyer and the investigator that the lawyer may have hired such that an attorney may not “instruct” a private investigator to “friend” a claimant. This same rule of conduct should also apply to anyone in the employ, or working at the direction, of an attorney.

Lastly, it is important to be aware of other potential legal liability of the actions of others working in behalf of the attorney in the course of the investigation. For example, in California, lawyers retaining an investigator may be liable for the investigator’s improper actions (Noble v. Sears, Roebuck & Co.  33 Cal. App. 427 654 (1973).

Is “friending” someone through a fictitious profile in compliance with the social site policy? This may vary according to the social site policy. However, most social media sites will most likely prohibit the creation of a fictitious site for the purposes of developing private information on one of their users. For example, Facebook requires each user to agree to the following terms:  Facebook users must “provide your real names and information. You will not provide any false personal information on Facebook, or create an account for anyone other than yourself without permission.” However, Facebook only has about 100 people monitoring the posts and other activities of about 800 million users, so the chances of getting caught violating this policy is very remote.  

Is it in compliance with company policy? Many companies and firms have not developed a clear social media policy to address the issues that could arise as a result of the social media research conducted. The companies and firms who have established policies generally err on the side of caution, by taking a conservative approach by prohibiting the use of fictitious profiles and/or pretexts to develop information from social media sites. This is a rapidly evolving issue which many companies will need to address in the near future in order to avoid legal and/or ethical problems.

SOCIAL MEDIA RESEARCH: EVIDENTIARY ISSUES

You just developed some very compelling evidence from a social media site that essentially “makes your case.”  Now that the information has been printed out and saved, what are the evidentiary issues that you may encounter? Will the Judge accept the information as evidence in a court proceeding?  Will the opposing side object to the admission of the evidence on the grounds that it was protected by their client’s 4th amendment right to privacy?

According to current case law in a number of states, the prevailing position taken by the courts is, “A user might enable privacy settings on a social media account, but that does not automatically protect that information from discovery in a legal proceeding. A court resolves an objection to a discovery request by balancing the burden and possible oppression of producing the information — including the potential invasion of privacy — with the material needed for such information.”  For example, In Romano v. Steelcase, Inc., the court found that a party had no reasonable expectation of privacy to their SNS postings. While Romano was outside the scope of the Fourth Amendment, the lack of an expectation of privacy reflects the growing trend to view SNS information as non-private. In this case, the plaintiff had to give the defendant access to her current and historical Facebook and MySpace profiles and pictures, including deleted portions. According to an excerpt of this case, “Even if an SNS member deactivates her account, major SNSs retain user data. The court ordered the plaintiff to give her consent to the defendant to obtain the SNS information.”

So if the social media postings are not “protected,” can the social media site postings be simply subpoenaed?  Not exactly! Even though subpoenaing Facebook or MySpace may seem an obvious choice, it’s not likely to render results, as shown in Crispin v. Christian Audigier (2010). In that case, defendants served subpoenas on Facebook and MySpace, but plaintiff moved to quash them on grounds they violated the Stored Communications Act. The court agreed and held that private-messaging functions on Facebook and MySpace were no different than e-mail and that the sites did not have to produce the messages; in fact, they were prohibited from doing so. Unfortunately, this appears to be the prevailing position taken by most social media sites, thus making formal discovery of the information very problematic.

So how can the information be obtained legally? The growing trend appears to be the use of a court order. The January 2011 ABA Journal article titled “Tort Defense Lawyer Contends MySpace Smiley Faces Are Damning Evidence” reports that an increasing number of defense lawyers are seeking access to plaintiffs’ social media pages, searching for evidence of fakery and other activities. In a recent case, Facebook filed a motion arguing that defense lawyers should obtain account information directly from the member rather than subpoena Facebook. New York attorney James Gallagher is instead requesting a court order requiring the plaintiff to sign a consent form granting access to her Facebook account, which will be attached to a subpoena. “This is a wave that is going to explode all over plaintiffs’ law,” Gallagher says.

However, courts may be reluctant to compel service providers to provide broad, unrestricted access to social networking user information, but may order production in response to narrowly tailored requests. 

In addition, there are other methods of formal discovery to develop further information about the social media usage of the subject. For example, interrogatories should seek to identify an opponent’s screen names and relevant social media usage. Requests for production should seek blog entries and social media posts, and requests for admission should be designed to authenticate such information. In addition, the subject should be questioned extensively about social media usage during depositions and court testimony.

What about the “publicly obtained” compelling information that you developed and printed out from the social media site, and are ready to submit as evidence?  Fortunately, the laws to date would appear to have a very low threshold in admitting this evidence. The evidence can be satisfied by the testimony of a witness who has personal knowledge that the evidence is what it purports to be. In fact, courts have held that website printouts need not be authenticated by the site’s owner but can be authenticated, for example, by an attorney who testifies that she visited a particular site, recognized it as the opposing party’s, and printed what she saw on the screen. Jarritos, Inc. v. Los Jarritos (2007).

OTHER EVIDENTIARY CONCERNS

One must be very cautious when considering the validity of information obtained from social media sites. It is extremely common for individuals to lie, exaggerate and/or embellish their activities and credentials when hiding behind a computer screen. Relying on this information without independent investigation and verification is not only foolish but also irresponsible.

In addition, some subjects involved in litigation or a claim are now posting false information IN SUPPORT of their lawsuit or claim. This is an area that is growing in popularity, and should be strongly considered when the subject’s postings appear to support his/her claim, when other evidence would appear to contradict it.

There is also the common practice of OTHERS post false information about subject as a form of retribution or retaliation. This can also cause the researcher to be misled by false postings, and go down the wrong investigative path.

In conclusion, social media sites can be a blessing or a curse when conducting research and investigations. Like going on an archeological expedition, you can find the “holy grail” of evidence that will make you a very popular person with your boss or client. Or, it can simply be a pile of dirt or a worthless relic, after a lot of tireless digging.

CONTACT LIST OF SOCIAL NETWORK PROVIDERS

The following website is an exhaustive listing of the contact information on all relevant sites:http://www/search.org/programs/hightech/isp

 

 

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