Category Archives: Legal Ethics & Social Media

By John Patzakis

Social media eDiscovery has been impacted by far greater forces in recent months. In response to the Cambridge Analytica scandal and other similar bad actors, the social media platforms have rightfully cracked down on rogue operations that engage in automated collection of data at a mass scale for purposes of reselling that data or engaging in exploitive targeting to sow political and social unrest. Recently, Facebook announced that they disabled over two billion accounts flagged by their AI engines as potentially violating platform polices.

In doing so, millions of legitimate accounts, including some X1 Social Discovery users, were also swept up in the process and experienced temporary lockouts. And as part of their process, the social media platforms also engaged in a review of companies that develop technology that interacts with social media platforms. This review was warranted as some outfits have positioned their tool as operating under legitimate purposes, but in practice are engaging in mass data collection and brokering that data for marketing or other improper purposes.

However, in communications with social media platforms and their attorneys, there is a recognition of legitimate and more narrow use cases consistent with legal and public policy. Social media evidence collection of third party public data is a standard and widespread practice mandated by the courts, legal ethics, and the rules of evidence. Copious volumes of case law, legal treatises, and state bar ethics opinions provide that the legal duties of competency and diligent representation necessitate that attorneys search, collect and preserve social media evidence, and that the failure to do so can constitute ineffective assistance of counsel. (See, Cannedy v Adams, 706 F.3d 1148 (9th Cir. 2013)). I recently had the opportunity to speak to several hundred Federal Magistrate Judges at an eDiscovery Institute Judicial Training Program on social media discovery. When I queried the room on how many of them deal with social media evidence, every hand went up. To be sure, every trial judge in the US and many other countries preside over the admission of social media evidence on a routine basis.

It is also critical that the right software be used for social media evidence collection. When lawyers and their representatives resort to print screen or simple flat file images, they are failing to collect key metadata and cannot effectively authenticate the evidence. Simple screen captures are not defensible, with several courts disallowing or otherwise calling into question social media evidence presented in the form of a screen shot image. Additionally, flat file images dramatically increase eDiscovery processing costs, while the right software can readily import data straight into attorney review platforms for efficient search, review, tagging, redaction and production.

So X1, in consultation with social media providers,  has developed X1 Social Discovery 5.5, which is designed to address key frustrations users are experiencing within the industry related to Facebook account lockouts, delays in collection, and discrepancies in collected data, while adhering to prohibitions against mass collection and functionality that could be considered mass surveillance of social media users.  In doing so, X1 is adhering to direction received from the social media platforms and their compliance teams. Specifically:

• X1 Social Discovery and similar software should simply enable people to access or collect content from Facebook by essentially automating the “print to html” process – to collect all the page elements, including metadata, readily visible to the user from the user’s own account and download them to the tool for analysis and authentication for court purposes.

• The X1 Social Discovery software is a downloadable tool and thus the downloaded data remains exclusively in the custody and control of the end-user licensee. X1 as a company itself does not store or otherwise have access to the data collected through its tool. It is thus important that the social media discovery software provider also not host the data collected by its tool on its own servers or any cloud-based servers in its control. There should thus be a “Chinese Wall” between the software provider and the data collected by end-users. This means that social media eDiscovery software providers like X1 should not also provide services directly related to the use of their own tool.
• X1 Social Discovery and similar software should not enable mass surveillance functionality. For this reason, we have limited the amount of data that X1 can collect per hour and have disabled geo-fencing, auto rescans, and email alerting for Facebook and Instagram.

The introduction of X1’s revised Facebook Capture, allows the user to collect data within the new X1 Facebook Capture scanner. With a valid account, the user will authenticate to Facebook, browse the desired collection area and initiate a capture directly within the X1 Social Discovery interface. Unlike traditional web capture and archiving solutions, X1’s Facebook Capture scanner indexes individual Facebook items from a targeted page, enabling the user to capture from a host of methods including single and multiple posts, a user’s timeline, photos, messages and more.

X1’s new Facebook capture method continues to build on X1’s patented indexing technology, allowing the user to collect and analyze the data (including supporting metadata) while retaining current post-collection functionality delivering legally defensible results. As with all X1 Social Discovery data sources, the data continues to remain local to the customer’s computer system.

If you are interested in learning more about X1 Social Discovery 5.5, you can attend a live demonstration featuring our new Facebook Capture scanner. Sign-up here for our weekly demo

Or please visit: https://www.x1.com/products/x1-social-discovery/.