By Barry Schwartz, Esq.
Did you know that social media content is discoverable in legal matters? In fact, attorneys have the right to collect this content to support their cases. With more than 2.3 billion Facebook accounts and 1 billion Instagram users in the world today, it’s no surprise that data from social media platforms is regularly requested in litigation.
We recently hosted a webinar in partnership with ACEDS to explain how Social Media Discovery™ can help find the smoking gun that makes a case. If you missed it, you can view the entire webinar here.
We received some great questions during the webinar and wanted to share them for others who may also want more information on Social Media Discovery. We hope you find this additional information helpful:
What is the starting point for a social media collection? Meaning, what minimum information is needed to be able to initiate the process?
To begin a social media collection, you simply need the name of the person whose information you’re seeking. However, finding the correct person based off his or her name alone can be difficult (for example, without any background information, finding the correct “Robert Smith” on Facebook would present a challenge), so collecting some additional identifying information on the individual is helpful. Take a look at the checklist below for how to find the profiles and information you’re looking for.
You mentioned using a repeatable process to become defensible. Do you have a checklist we can follow?
Start with a background report on the individual to confirm his or her identity and gather a list of family members and friends who can further help confirm that the profile you’re looking at is correct.
Interview key custodians – it’s the best data identification method available. If you have more than a handful of custodians in your case, use a custodian questionnaire, which allows you to reach out to all your custodians at one time with different sets of questions for different groups.
Look for clues to help you confirm you’re looking for – or found – the right person by searching his or her name and family members’ names. You can use Google, DuckDuckGo and various social media platforms, like Facebook, Twitter, Instagram, Pinterest, GoFundMe and others. Look for things like nicknames or maiden names that he or she might use on one or more social media profiles.
Use a digital forensics team to help ensure any data collected will be admissible in court or other legal proceedings – simply printing a profile or saving it as a PDF is not enough. Once you find the relevant profiles, trained digital forensics technicians can help find additional data and ensure that all data collected is properly preserved, along with critical metadata, in a defensible manner. That team can also aggregate all data collected into a comprehensive report that can be used to further develop your case strategy.
What makes your forensic social media collection defensible?
BIA’s entire process is guided and overseen by licensed private investigators, digital forensics professionals and attorneys, ensuring that data is collected and preserved in a way to make it defensible and admissible in court. Our technology captures social media posts as well as all related metadata, using a hashing algorithm to prove that they haven’t been altered and to ensure evidentiary integrity and admissibility. Our investigative team also logs all work and provides detailed reports to ensure the reliability of the process.
Can you identify some of the key metadata points available when performing a forensic social media collection?
Defensible social media collection is not simply a screenshot of relevant social media pages – it’s the extraction of data, including metadata, which is then authenticated using hash values. Ultimately, the hash value is a digital fingerprint that verifies the data has been untouched. If the report is run again and the value has changed, it proves that something has been added, deleted or altered on the profile or post. Metadata is the difference between defensible evidence and ‘nice try.’
We capture hundreds of factors when we do social media collection, and the types of metadata available vary depending on the platform. Key metadata points include the time and location a post was created, any updates to the post and its direct link.
When you do jury monitoring, are you monitoring them during trial or did you get the jurors’ names before the trial?
Jury monitoring can be done during both voir dire and the trial. During the voir dire process, we use our tools and experience to mine social media and the internet to create potential jurors’ character profiles, which can assist clients in choosing the jury. Useful information can include criminal background, biases, reactions to controversial topics and even frequency of social media use (which can be helpful in understanding the likelihood of jurors using social media during the trial).
During the trial, we can set up a radius around a specific point (such as the courthouse where the trial is taking place) and track all social media use within that particular geographical area. This would have been useful to attorneys in the El Chapo case, where it was discovered that jurors were actively discussing the case on Twitter, leading to the possibility of a mistrial.
What are some of the best tools for collecting social media data?
There are a variety of options available, and the tool(s) should be selected based on the needs of the case and the experience of the investigators. At BIA, we have multiple tools so we can employ the most appropriate ones depending on the social media platforms and how the data will be used. For example, photo or text posts on Facebook are treated differently than videos from YouTube, which must be captured in a way that allows for audio transcription and visual description. Regardless of the tool used, it should collect and preserve metadata and other information in a defensible manner.
Additionally, once the data is collected, the files from the individual platforms may need to be standardized and moved to a review platform. That may require additional processes and tools.
Not all Social Media Discovery tools, techniques and technologies are created equal, so we suggest you ask your vendor about their specific process. Perhaps the most important thing is to find the right team that can get the evidence you’re looking for. Look for an investigative team that understands what’s permissible and what isn’t and that works within the law and the access granted by the platform and individuals.
Is it accurate that after looking at a public account three times you become part of the algorithm as a “suggested friend”?
We can’t say for sure about the “three times” rule, but it’s realistic to assume that if you are searching for the same person multiple times, Facebook would add this to their algorithm bucket. It probably doesn’t take much these days by means of data input for the algorithm to make a suggestion.
Thanks again to those who joined us for our recent webinar. If you missed it, you can still view it here.