The lawyer's ‘treasure trove'

The lawyer's ‘treasure trove'

Anything you tweet, post, blog, share, tag or update can and will be used against you in a court of law.



It isn't just anything you say that can and will be used against you in a court of law anymore. Anything you tweet, post, blog, share, tag, update or email can and will be, too.



Social media sites, where users share the most intimate details of their lives in words, pictures and video, increasingly are showing up as evidence in civil, criminal, divorce and child custody cases. In one study, 81% of the country's leading divorce lawyers said that cases using evidence from social networking sites were growing in number, and nearly two-thirds cited Facebook as one of the richest sources.



But now the rise in “frictionless” social media—applications that automatically post songs you're listening to, articles you're reading, videos you're watching, purchases you're making and places you visit, along with a time and date stamp—provides an even bigger gold mine for law enforcement, private investigators and lawyers.



As part of its new timeline format, which documents your life from birth, Facebook has linked up with third-party applications and websites to increase user sharing of information with a minimum of effort. Such sites and apps automatically share user information with little or no action taken on the part of the user.



Those who listen to music on Spotify, read stories on The Washington Post or USA Today, shop on Amazon.com, watch shows or movies on Hulu or Netflix, buy tickets on Ticketmaster or StubHub, save a web link on Pinterest, look up a recipe on Foodily, track their run on Runkeeper, search for a job on Monster or post a status update from their smartphone with an enabled GPS can have their activity tracked and made visible for others to see.




The implications of those seemingly innocuous digital bread crumbs plotted by date and time—particularly for those who are lax about their privacy settings—can become critical evidence where the law is concerned.



Consider the significance of spouse's automated check-in at a hotel in a divorce case. Or what a tagged photo of a parent hanging out in a bar at a certain time of day might represent in a child custody case. Or what video of a supposedly injured party horseback riding on a sunny beach, days after an accident, might mean to an insurance fraud investigator. Or why a district attorney might be interested in an accused murderer's reading habits around the time of the crime.



“Facebook and other social media platforms are an absolute treasure trove of information for lawyers,” says Jeffrey C. Brooks, an assistant professor of professional practice at LSU's Paul M. Hebert Law Center. “Attorneys are becoming increasingly aware of the amount of information people are knowingly and unknowingly posting on their pages, and when that information becomes relevant to a case, courts are ordering it to be disclosed.”



The larger issue on frictionless sharing, he says, is aggregation of data. Every status update and item shared can very easily be collected from publicly available sources and easily used to compile a dossier or file on an individual's preferences, or rebut or bolster legal claims.



“Checking in and tagging and dating photographs … are ways attorneys can establish where you were, what you were doing, who you were with,” Brooks says. “These things are very helpful to rebut alibis, prove that a claimed injury is not real or to attack a witness's character or credibility.”




One recent example of the possible legal implications of social media is the arrest of Brian Downing, the 32-year-old Alabama fan who now faces sexual battery charges after a video showing him exposing himself and simulating a sex act over the head of an apparently unconscious LSU fan after the BCS Championship Game in New Orleans, went viral on the Internet.



In a 2009 Canadian case, a woman diagnosed with major depression lost sick-leave benefits from her insurance company after agents discovered Facebook pictures of her having a good time at a Chippendales bar show, at her birthday party and on vacation at a beach.



And in an Illinois accident case, a couple riding a motorcycle was struck by a Honda. An important piece of evidence was the car driver's Facebook postings, which had pictures of his Accord along with boasts that it was “ready to drive at 90 mph.”



Privacy protection

Courts have long allowed information from public portions of social networking sites to be used as evidence. But in some cases, judges have ruled that even privacy-protected material is subject to disclosure.



Postings on social networks are generally governed by the Stored Communications Act, which regulates how private information can be disseminated in non-criminal matters.



The law has been interpreted to mean users' personal data doesn't get handed over in response to a civil subpoena. But now, in addition to issuing subpoenas, judges are ordering plaintiffs to sign consent forms authorizing release of the material.



Last year, in the case of an employee who sued his employer over a forklift accident, a Philadelphia judge found that a review of just the public portions of the employee's Facebook page was enough to compel disclosure of all information on his social networks, and ordered him to turn over his usernames and passwords. The public information included the employee identifying bike stunts and riding as “interests,” as well as photos of him before and after the accident riding a motorcycle and sporting a black eye. The judge noted such sites are specifically designed for sharing information and expecting confidentiality is “unrealistic.”



In a personal injury case in Michigan, a judge allowed defense attorneys access to private portions of the plaintiff's Facebook and MySpace pages after public postings on the pages of her and her family showed photos contradicting her claims that she was homebound after her accident. The judged ruled that people who place their physical condition in controversy “may not shield from disclosure material which is necessary to the defense of the action.”



“Courts are increasingly finding that individuals do not have a reasonable expectation of privacy,” Brooks says, “even if they are utilizing privacy features, if they submit information to social network sites like Twitter and Facebook.”



Just last month, in a U.S. Supreme Court ruling involving GPS tracking devices, Justice Sonia Sotomayor honed in on the issue of what users of social technology, such as Facebook, can expect in terms of privacy.



“More fundamentally,” she wrote, “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”



The best defense

Christine Corcos, an associate professor of law at LSU who specializes in media law and Internet privacy, says that most people are aware they relinquish some measure of privacy when they join social media sites, but they might not realize how quickly they can lose control of their personal information.



“They know they are creating a picture of themselves, but they may not realize to what extent they are letting the rest of the world into their lives,” she says. “They may still believe they have a lot of privacy, but that's actually not quite so true.”



Once a user posts material to a social media site, it can be reposted and/or transformed by another. Others might not understand how privacy controls truly work or don't work, and that those controls can change, either accidentally or based on the decisions of the social media company at issue.



Once they change, Corcos says, information gets out, privacy disappears and, in some cases, it can't be retrieved.



“I do understand the attraction and charm of social media,” she says. “It's very interesting, it's a lot of fun and it's seductive. But I would suggest that people be really careful about what they post to a site. They need to remember that the Internet has a long memory and, in some cases, that memory can be unforgiving.”



Brooks suggests that social media users realize they are putting traditionally private and personal information voluntarily into the public realm.



It's important to be proactive about managing your content, he says, including the removal of tags from inappropriate photos and conversations, managing the interests and status updates you make public, setting very high privacy settings and using a basic headshot or plain photo as your profile photo, rather than, for example, one with a beer in your hand.



Brooks also recommends that users Google themselves regularly as a means of monitoring what personal information is publicly available and reminds employees that a work phone and work computer belong to the employer. It's harder to argue that an email or a status update from there should remain private.



“The more you share,” Brooks says, “the more an attorney can find.”



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