The Facts About SMI
Social media posts are now being used as supplemental evidence in court to establish foundation and character, support alibis, and provide valuable information relevant to court cases. The benefits are unlimited, ranging from direct and corroborative evidence to risk assessment and ongoing evidence of activities. A custody case in which a mother’s alleged drug use is a concern can be supported with photographs and status updates posted to social media of the mother using, or discussing using drugs. Geo tagged posts can prove that a potential key witness was in the physical location of a crime as it was being committed. Whether a criminal or civil case, social media is now a growing catalyst for providing evidence to the courtroom. But what does a social media investigation require? Who can conduct one and how must the evidence be collected?
The fact is that anyone can dig around and find information on the internet. True, but attorneys walk into hazardous territory when they or their paralegals attempt to do a social media investigation on their own, without the proper knowledge and understanding of how the whole process works.
Why? Well, for one it can take a tremendous amount of time. Scrolling through a seemingly endless Twitter feed and clicking through a 200 photo album on Facebook is time intensive and might not give you what you need. Additionally, there are requirements for what information and data must be collected and presented to the court, some of which can’t be accessed without technical know-how and/or sophisticated software. Lastly, and the greatest potential hazard to an attorney, is a possible violation of legal ethics. An attorney could unknowingly violate legal ethics and face evidence being thrown out in court, or, in extreme cases, disbarment if they conduct an unethical investigation.
We’ll get into case law a bit later, but first let’s walk through they key differences between an amateur social media investigation and a professional one. We’ll focus mainly on software, efficiency, provability, and an understanding of case law and ethics.
Jump to a Section:
- Video: What You Need to Know About Social Media Investigations
- Why Hire a Social Media Investigator?
- How to Find and Use Social Media Evidence
- Software, Efficiency, and What Can Be Collected
- Provability and Evidentiary Validation
- Case Law
1. Video: What You Need to Know About Social Media Investigations
2. Why Hire a Social Media Investigator?
Social media is out there for all the world to see, so why hire a private investigator? In short, a trained social media investigator can find and pull information and data that the average person cannot, and can do so in a way that will secure the defensibility of the evidence, enabling the investigator to prove who posted it and when, even if it has since been deleted.
We rely on a variety of methods and techniques to locate accounts that are hidden or have private settings that prevent them from showing up in a public search. When searching for an individual’s profile, often times you plug in a name and there are several different accounts with it, not including the ones that don’t show up in public search at all. Because of this, we use a variety of reverse search and investigative methods to locate the account more quickly and accurately. In most instances, we are even able to pull pertinent photos, posts, and data when an account is completely private and can’t be accessed or doesn’t even exist.
When the task of locating key evidence and collecting data is for the purpose of use in legal proceedings, we use top of the line software that pulls the necessary metadata out of the online content to adhere to the court’s standards. You can read more about software in a later section.
This is exactly why you want to rely on a private investigator for this type of case. We understand the ethics, technology needs, and unique investigative methods required for a successful search.
3. How to Find and Use Social Media Evidence
4. Software, Efficiency, and What Can Be Collected
We use software that allows us to search and set up alerts for relevant data across many popular sites. Beyond that, our software allows us to ingest metadata, analyze large amounts of data, and authenticate that data, which is crucial when presenting it as evidence in court.
Along with other parameters, we can search by date, location, time, and keyword, and we can search videos, images, statuses, links, geotags, html, and files uploaded to the site on both public and private accounts. When monitoring individuals on an ongoing basis, we are also able to anonymously follow without the person receiving a notification.
This means we can pull accurate, court-admissible data from a lot of different social media sites, including but not limited to:
- Tumblr, and
- Many others
We only use software that adheres to standards of evidentiary validation, and by collecting metadata and MD5 hash values we are able to establish chain of custody (something you don’t get with print screen). Our data can also be exported to several top attorney review platforms.
This adds up to a more efficient and thorough investigation. And, should supplementary investigating need to be done (surveillance, background investigation, etc.) you’re already working with a licensed investigator who is familiar with the case.
5. Provability and Evidentiary Validation
One of the biggest hurdles to social media becoming a staple in the courtroom has been provability. Most courts require metadata and MD5 hash values for evidentiary validation and to establish chain of custody, applying Rule 901(b)(4) of the U.S. Federal Rule of Evidence (see Lorraine v. Markel American Insurance Company or State v. Tienda).
Metadata can be a laundry list of items, including unified resource identifier, item type, parent item, thread id, recipients, created time, updated time, link, comments, and picture url, to name a few.
MD5 Hash Value
MD5 hash value is a one-way cryptographic hash function that is used to verify data integrity. It is a 32 character hexadecimal string of numbers and letters that has a 1.7 undecillion (that’s 36 zeros) chance of being replicated . In layman terms, the chances of the MD5 hash being replicated are about the same as someone winning the powerball 32 times in a row.
Courts have rejected simple printouts of social media posts, citing inadequate authentication (see State of Connecticut v. Eleck). As an extension of provability through MD5 hash values and metadata, we can also provide expert testimony to validate evidence.
6. Case Law
Below are a few key cases involving social media as evidence. For a full list of what we’ve collected, visit Case Law Relevant to Social Media Investigations.
- State v. Eleck
- Rene v. State
- Bland v. Roberts
- Thompson v. Autoliv Asp, Inc.
- Richards v. Hertz
- State v. Tienda
- Tompkins v. Detroit Metropolitan Airport
You can read more on social media case law and find some sample documents here: Social Media Evidence – How to Find It and How to Use It.
The dilemma of ethics is two-fold. There are legal ethics an attorney must follow and investigation ethics.
California Rule of Professional Conduct 2-100
Rule 2-100 says, in part, “(A) 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.”
ABA Model Rule 4.2
ABA Model Rule 4.2 makes a similar statement: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.”
This communication has pretty much universally been understood to include sending a friend request. Though these tie directly into ethics, they are also relevant in case law. In short, the type of case and the circumstances dictate what level of contact, if any, the attorney and the investigator can have with the individual.
As far as investigation ethics go, here are a few things we absolutely will not do:
- Try to hack an account or guess a password
- Investigate an individual without legal grounds or reason to do so
- Conduct an investigation without a valid investigator’s license
You can read more on investigation ethics here: California Association of Licensed Investigators Code of Ethics, and more on attorney ethics here: State Bar of California Rules of Professional Conduct.