What do half of us do everyday? Log into Facebook. We are more likely to use social media (e.g., Facebook, LinkedIn, YouTube, or Wikipedia) to socialize than have a cup of coffee with a loved one. When people use social networking or social media sites, they are creating ESI (electronically stored information). This advisory will discuss the explosion of social media and how it’s being used in fact-finding endeavors.
I. To Quash or not to Quash a Subpoena
In a recent breach of contract and copyright infringement action, a Court had to resolve a dispute regarding Subpoenas issued to social networking sites of Facebook, MySpace, and Medial Temple. In Crispin v. Christian Audigier, Inc., 2010 WL 2293238 (C.D. Cal. May 26, 2010), the Defendant (“Christian Audigier”) subpoenaed the social networking sites of Facebook, MySpace, and Media Temple and sought to acquire the Plaintiff’s subscriber information and communications relevant to the copyright infringement claim.
The Plaintiff (Crispin) sought to quash the Subpoenas arguing that disclosure of the desired information would violate the Stored Communications Act (“SCA”). After a lengthy discussion and analysis of the SCA, the Court found the SCA was applicable to the social networking websites of Facebook, MySpace, and Media Temple, and quashed the subpoenas to the extent they sought the Plaintiff’s private messages. In its analysis, the Court found a distinction between “private messages” and information “openly posted”, such on Plaintiff’s Facebook wall or MySpace comments.
Information available to the general public did not fall under the purview of the SCA, according to the Court. The Court remanded the matter back down to the Magistrate Judge to allow the parties to develop an evidentiary record to determine to what extent Plaintiff’s privacy settings allowed access to his Facebook wall or MySpace comments.
The purpose of mentioning this opinion is to expose the legal theories, claims and defenses to the various social networking and social media finding its way to the courtroom. People spend a lot of time on social networking and social media sites, creating information that may later turn into discoverable evidence.
II. Where are the nuggets?
The proverbial nuggets of gold are the “interesting data” that can be gleaned from social networking sites such as Facebook, Twitter, MySpace, etc. On a public Facebook page, you may be able to see known associates, contacts, family members, status updates, birthdates, hometowns, access to photo albums, favorite groups/personal interests, and sometimes you get cell phone numbers.
In the recent Russian Spy story, investigators were able to obtain information from an alleged female spy’s LinkedIn profile (job title and alleged name of her fictitious business); photographs of her from her Facebook profile and wall postings. The female spy also had her interests and list of friends publicly posted.
In conclusion, the types of information people publicly share on their social networking or social media profiles, may not lead you directly to them, but gives you enough information to start putting the pieces of the puzzle together. Sensitive information such as a cell phone number, date of birth, hometown, combined with a name, could enable a savvy person to social engineer their way into identity theft or other unlawful endeavors.
It appears social networking and social media will be around for awhile. And so will potential evidence people post on their social networking profiles and pages.
1. People just like you are using social networking sites.
People innocently share factual information or comments on these sites that may aid in your investigation. The type of information you may find on social networking sites include, but is not limited to:
- Home town
- Cell phone number
- Place of employment
- Former places of employment
- Job titles
- Education history
- Names of friends, relatives, co-workers
- Photo albums
- Photos of friend, relatives, co-workers, and the subject themselves
- Public postings by the subject and/or associates (on the wall or page of the social networking site tied to the subject)
2. Not every piece of electronic evidence will be a smoking gun Be cognizant that not every piece of electronic evidence will be a smoking gun. Just like in the old days of paper discovery, not every piece of paper in the banker’s box was a smoking gun. But, often times electronic evidence may may be an integral piece of the puzzle you are putting together, because there is so much of it these days. People treat their social networking sites as casually as emails, and we all know about the bombshells we find in emails. Social networking sites are target rich environments.