Recently, CNN published an article illustrating how law enforcement agencies are using social media to help solve their cases. CNN reporter Heather Kelly, states, “leveraging Facebook is just one of many ways law enforcement officials are gleaning evidence from social media to help them solve crimes.” According to a recent survey performed by LexisNexis on federal, state and local law enforcement officials who use social media, 4 of 5 used social media to gather evidence during investigations. Kelly states, “Half said they checked social media at least once a week, and the majority said social media helps them solve crimes faster.”
Tag Archives: social media evidence
Recently our survey of published case law from 2010 and 2011 identified 689 cases involving social media evidence for that time period. While these results exceeded our expectations, that pace is actually rapidly accelerating in 2012. For this past April alone, a quick tally identifies 61 cases where social media evidence played a key role. We will have a mid-year report in a few months, but it appears that the volume of cases has about doubled year over year. Keep in mind that the survey group only involves published cases on Westlaw. With less than one percent of total cases resulting in published opinions, and considering this data set does not take into account internal or compliance investigations or non-filed criminal cases, we can safely assume that there were tens of thousands more legal matters involving social media evidence that were adjudicated or otherwise resolved in April 2012.
The following are brief synopses of three of the more notable social media cases from April:
Blandv. Roberts, 2012 WL 1428198 (E.D. VA, Apr. 24, 2012)
This case is notable in that it extensively litigated the implications of “liking” specific items on Facebook. In this situation the Hampton, Virginia Sheriff’s Office employed Bland and his co-workers, under Sheriff B.J. Roberts. Roberts faced a contested election and Bland and his cohorts backed the challenger Jim Adams, going so far as to “like” Adam’s Facebook page. As it turned out, the plaintiffs “liked” the wrong horse. Roberts won the election, and he subsequently fired Bland and the other Adams-backers. The Sheriff justified the terminations on cost-cutting grounds, but plaintiffs argued that their termination violated their First Amendment rights, as Roberts was aware that the plaintiffs’ “liked” Adam’s Facebook page, which plaintiff’s asserted to be protected speech. The court ultimately determined that “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection and thus the termination was lawful.
From our perspective, the ultimate outcome of Bland v. Roberts is not so much the point as is plaintiffs’ subtle activity on Facebook representing substantive facts of the case. The act of liking a Facebook entry can be an important piece of evidence in a wide variety of litigation and investigation scenarios. Just to identify a few possible examples, it can constitute evidence toward a party’s knowledge of a particular fact, or the extent of trademark infringement or publication of defamatory material, or identify relevant witnesses in a case. This case illustrates why it is important to collect and preserve all available information on Facebook and other social media sites in a thorough manner with best-practices technology specifically designed for litigation purposes.
People v. Harris, 2012 WL 1381238 (N.Y. Crim. Ct. Apr. 20, 2012)
In this case, the defendant faced charges of disorderly conduct after marching onto the Brooklyn Bridge as a participant in the Occupy Wall Street protests. The New York District Attorney’s Office subpoenaed Twitter, Inc., seeking user information and Tweets from a particular time period for the Twitter account @destructuremal—the account allegedly used by the defendant. The defendant filed a motion to quash the subpoena.
In denying the defendant’s motion, the court relied heavily on the public nature of Twitter and its terms of service, which establish that users have no expectation of privacy and no proprietary interest in their Tweets. The court noted that the terms of service state that by submitting a post or displaying content, a user has granted Twitter “a worldwide, non-exclusive, royalty-free license to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).” Thus, the court reasoned, “defendant’s inability to preclude Twitter’s use of his Tweets demonstrates a lack of proprietary interest” in them. In assessing the Plaintiff’s privacy rights, the court again relied on Twitter’s Terms of Service, which clearly inform users that their information will be viewable by others and which specifically state that “[w]hat you say on Twitter may be viewed all around the world instantly … [t]his license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same.”
Loporcaro v. City of New York and Perfetto Contracting Company, 35 Misc.3d 1209(A), (N.Y. Sup. Ct. Apr. 9, 2012)
This is yet another serious personal injury claim where the claimant’s public Facebook postings contradicted their assertions of serious injury. Plaintiff claimed permanent disability from two knee injuries while on the job as a firefighter, seeking redress against Perfetto Contracting Company, Inc., alleging defective road conditions caused his injury. However, his public Facebook postings suggested that he continued to maintain an active lifestyle. This prompted the court to grant the defense’s motion to compel production of the Plaintiff’s full Facebook account, ruling as follows:
“When a person creates a Facebook account, he or she may be found to have consented to the possibility that personal information might be shared with others, notwithstanding his or her privacy settings, as there is no guarantee that the pictures and information posted thereon, whether personal or not, will not be further broadcast and made available to other members of the public. Clearly, our present discovery statutes do not allow that the contents of such accounts should be treated differently from the rules applied to any other discovery material, and it is impossible to determine at this juncture whether any such disclosures may prove relevant to rebut plaintiffs’ claims regarding, e.g., the permanent effects of the subject injury. Since it appears that plaintiff has voluntarily posted at least some information about himself on Facebook which may contradict the claims made by him in the present action, he cannot claim that these postings are now somehow privileged or immune from discovery.”
Earlier this year we covered the case of Tompkins vs. Detroit Metropolitan Airport, which also highlighted the importance of systematic search of public Facebook as standard procedure for nearly every type of criminal and civil litigation investigation.
We will have an update in about four weeks for the social case law published in May, so stay tuned.
In our recent social media ethics webinar with John Browning of Lewis, Brisbois, (recording and slides available here) we noted the significant number of recent criminal matters involving key social media evidence. In reviewing these cases that are documented on our site, we continue to be amazed at what many alleged gang members choose to post on their public-facing Facebook and MySpace accounts. This led us to muse that it might be a good idea for Facebook to embed the Fifth Amendment of the US Constitution into their terms of service as a friendly reminder about their users’ right against self-incrimination.
Speaking of which, last month a Texas Appellate court upheld the murder conviction of Ronnie Tienda, who owes his trip to the slammer almost entirely on the content of his MySpace page. The case also underscores some important lessons on authenticating highly contested social media evidence. In Tienda v. State (Tx App. 2012) the prosecution introduced several photographs from Tienda’s MySpace page featuring Tienda exhibiting gang signs and other gang paraphernalia, one with the helpful caption, “You ain’t BLASTIN, you ain’t lastin,” and another boasting “I LIVE TO STAY FRESH!! I KILL TO STAY RICH!! N OTHER WORDS IMA GO TO WAR BOUT MY SH**” followed by another notation, “Rest in peace, David Valadez” with a pointed link to a song played at Valadez’s funeral. David Valadez, of course, was the victim. Police also amassed a trove of other MySpace evidence including Tienda’s chat conversations with other suspects under investigation and even referring to the events of the night in question and concerns about the ensuing police investigation.
The Court admitted the MySpace printouts into evidence over the defendant’s objection, with the prosecution laying the foundation for these pictures through various circumstantial evidence. The prosecution pointed to various metadata and other circumstantial evidence from Tieda’s MySpace page, including his username, which was consistent with Tienda’s commonly known nick name, his email addresses registered to the account, User ID number, stated location (Dallas), references to the victim’s funeral, communications with other suspects, and numerous posted photos of Tienda with associated date and time stamps.
The Texas appellate court determined that “this is ample circumstantial evidence—taken as a whole with all of the individual, particular details considered in combination—to support a finding that the MySpace pages belonged to the appellant and that he created and maintained them.”
While the prosecution achieved a good result, it faced a concerted challenge on the authenticity of the evidence, and as we have seen in other cases, relying on simple printouts of social media site pages is a very risky value proposition. This highlights the importance of utilizing best practices technology such as X1 Social Discovery to ensure all supporting metadata and other key circumstantial evidence is properly and comprehensively collected. As the Tienda case reveals, there is a wealth of relevant social media evidence out there, and if you are not properly collecting, your opponent will be objecting.