“Privacy on the Internet? That’s an oxymoron.”
– Catherine Butler
With an estimated 45% of the world’s population possessing at least one social media account, the value of social media as an evidence source cannot be overstated. From personal injury suits to criminal trials, it has become increasingly rare for social media evidence to not play a role at some point during a case. As such, the proper and ethical collection of electronic evidence has become a landmine for litigators and investigators alike.
Right to Be, Right to See
Under the Fourth Amendment to the U.S. Constitution, people have a right to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. The hallmark Fourth Amendment case, Katz v. United States, gave birth to the concept of “reasonable expectation of privacy.” What does this mean for content and personal information publicly posted on social media platforms? Essentially anything and everything electronically posted by an individual in the public domain is available for collection. The federal courts have consistently upheld that social media and public posts fail the “Katz test” and that no reasonable expectation of privacy exists on public social media platforms.
Warning: Professionals Only
We have all heard the stories. A law firm, seeking to save money, oftentimes employs a legal assistance or a young, tech-savvy intern to scour the Internet for game-changing social media evidence. After many valuable hours are spent, several screenshots are produced from the target’s profile. In the end, the firm failed to visualize the totality of available information due to poor investigative techniques, lack of knowledge, and inadequate social media evidence collection software.
What’s more is that in the process of allowing the legal assistant and intern to collect vital evidence, the firm may have produced “evidence” not admissible in court. With the rapid changing case law throughout our country, many courts have established new rules dealing with the admission of electronic evidence. Without certain metadata, an attorney presenting social media evidence may not be able to establish the authenticity and ownership of said evidence.
Liability and ethical issues can also come into play. According to the American Bar Association, attorneys have an ethical responsibility to stay current on technical trends. Attorneys must demonstrate “adequate technical competence when advising clients,” or they can be exposed to potential liability (Abovethelaw.com). Collection techniques such as friending a social media user whose account is private can violate the social media platform’s terms of service. And of course, fraudulent accounts are a huge no-no!
Enter The Private Investigator
A competent private investigator is adept at collecting social media evidence and intelligence. Through the use of advanced search techniques and software, a private investigator can anonymously and throughly locate, examine, and collect social media evidence that would otherwise be unattainable by the layperson. By combining data derived from proprietary databases and advanced search strings, an investigator can locate hidden profiles, carry out multiple target profiling, create friend lists from private profiles, geolocate posts based upon latitude and longitude, and much more.
Aside from gathering ALL of the information available concerning the target, an accomplished private investigator can serve as a witness in court, one whose background will lend credibility to the evidence being presented. Additionally, private investigators understand the chain of custody and the collection of metadata. Information such as IP addresses, URLs, timestamps, method of download, hash values, and root signatures are all important metadata that should be collected whenever possible.
While social media evidence can provide a competitive advantage and assist in leveraging negotiations or winning at trial, there are important considerations to be had. Ethical and legal issues can arise incident to poor evidence collection techniques. While it’s tempting to save money by employing office staff to search for evidence, social media evidence collection should never be left to a legal assistant or intern, but rather treated the same as any other physical evidence that a trained investigator would be employed to collect.