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Social Networking: Evidentiary Pot of Gold at the End of the Rainbow
Angela Lack, Esquire

Social networking websites have become increasingly popular in the past several months. The most prominent are sites such as MySpace, Facebook, and Twitter, which are quickly becoming the largest source of social interaction in the United States.

Millions of people visit these sites on a daily basis to share pictures, comments, and search for long lost friends. While the total population of the United States is estimated at approximately 300 million people, the total number of accounts on Facebook, MySpace, and Windows Live Spaces combined surpasses 500 million. The number of users on Facebook exceeds the number of people in Russia and the 36 million users registered for LinkedIn exceeds the population of Canada.1 The use of these sites is so pervasive among young adults that recent studies have linked the poor grades of college students to how much time they spend on social networking sites.2 With the increasing number of users and information available online, attorneys have recognized these sites as a gold mine for useful pictures, content, and other information regarding their cases.

Attorneys in numerous areas of the law have begun searching social networking sites for any relevant information for their cases. In criminal cases, the prosecution can use the social networking sites to provide information on the defendant. In family law cases, attorneys search these websites for information regarding the husband or wife in a divorce proceeding or in a child custody proceeding. Attorneys have used these sites to prove that the opposing party has a significant other even though they claim they do not, that alcohol was consumed in DUI cases even after the claim was made that the defendant does not drink, and that illegal drugs were used. It is evident that social networking users post pictures and comments without realizing that others often access the information and use it against them. One click on a Facebook page may give an attorney information pertaining to the husband’s new girlfriend or even a picture of him with his new girlfriend in a bar consuming alcohol. In a custody proceeding for a husband, Attorney Joseph Cordell used Facebook to prove that a mother, who assured the court she had not been drinking, continued to drink and smoke because her Facebook page had a time and date stamped photo of her drinking and smoking.3

Facebook and MySpace not only have individual sites, but they have group sites that anyone can join. These sites, such as “I hate my ex-wife” and “I hate my ex-husband,” can add further insight to an ongoing divorce proceeding. Joining group sites to release stress and speak freely may be a client’s own worst enemy. Discussing details of their current social situation on a social networking page may harm their chance of recovery. For example, if a woman going through a divorce and a nasty custody proceeding decides to post on her profile that she is a single woman, with no kids, that information can seriously damage her credibility and honesty with the Court if her husband’s attorney presents it at trial.

Prior to the advent of social networking websites, an attorney for an insurance defense firm would typically hire a private investigator to perform surveillance on a person suspected of perpetrating fraud in a personal injury case. The process of videotaping the malingerer washing his car, playing outside with his children, or performing strenuous activities without a neck brace when he thought he was out of the public eye, became time consuming and costly. However, even a sole practitioner can conduct investigations via the internet without hiring an expensive computer forensics team simply by logging onto Facebook or MySpace.

Courts have begun to routinely enter photographs, comments, and other postings on the social networking sites into evidence. In April, a Canadian Judge rejected a plaintiff’s claim for $1.3 million in damages for pain and suffering due to two automobile accidents which occurred between 2001 and 2003. The plaintiff claimed that he significantly suffered from a diminished quality of life. The defendant provided a wealth of evidence obtained from the plaintiff’s Facebook page, which evidenced the plaintiff’s life of playing billiards at a local bar, smoking marijuana, drinking beer and frequent weekend vacations. Ultimately, the plaintiff received an award for damages in the amount of $40,000.4

While use of social networking sites and information may provide useful information to the opposing party, this type of evidence may often be used unfairly. For example, if a user uploads a picture of him drinking in a bar three years prior, it may be used as evidence against him and seriously damage the individual in a lawsuit.

In July, 2008, an 18 year old male ran a red light and collided with another car, killing one person and seriously injuring another. The driver admitted to police that he smoked marijuana, but told reporters that he does not drink. After a search of his MySpace page investigators found pictures of the teen drinking beer from a bottle. As a result, the 18 year old driver is currently awaiting trial for murder and suspicion of DUI.

Although social networking site users have the opportunity to make their page “private”, privacy settings on these accounts do not prevent sophisticated web crawlers used by search engines like Google from retrieving personal information from the social networking pages and post that information in the search results. Anyone can type in a person’s name and retrieve a myriad of personal information about the user. An article in PC World reported that 78% of social network users do not mark their profiles as “private”; therefore making the information visible in a Google search. The amount of discoverable electronic data available has dramatically increased with the increasing popularity of social networking sites.

The use of social networking sites will continue to provide evidence for both criminal and civil litigation cases and alter the way attorneys investigate and litigate cases. For example, in a criminal case subpoenas are easily issued to social network sites to retrieve log files for forensic analysis to determine the identity of the user. However, such is not the case for civil litigation. In a civil proceeding, a John Doe subpoena must be issued to the social networking site, demanding that the individual of interest’s internet service provider (ISP) be revealed. Then a second subpoena must be issued to the ISP hosting company, requesting the identity of the individual. The hosting company must then inform the individual of interest of the request. The individual will either give permission or decline; however, either way his or her identity is revealed. Social networking sites have become increasingly popular among all countries and a way to remain connected to distant friends and family. However, the best advice to all users is to be aware of the pictures and content posted on their social networking sites and the sites of their friends and family because one day, it may be used against them in a court of law.

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End Notes:

• Angela Lack is a former NCSTL staff member. [LL.M. in Elder Law Stetson (2008); J.D./ M.B.A. Stetson (2005); B.S. at Florida State University (2002)]. She currently practices Civil Litigation, Corporate Law, and Family Law with South Law Group, P.A., Valrico, FL.
1 Battle of the sizes: Social network users vs. country populations, March 2009, http://royal.pingdom.com/2009/03/13/battle-of-the-sizes-social-network-users-vs-country-populations
2  Hsu, Jeremy. Facebook Users Get Worse Grades in College. April 2009, http://www.livescience.com/culture/090413-facebook-grades.html
3  Luscombe, Belinda. Facebook and Divorce – Airing the dirty laundry, June 22, 2009, http://www.time.com
4  Facebook postings foil N.L. man's injury lawsuit, The Canadian Press. http://www.cbc.ca/canada/newfoundland-labrador/story/2009/05/11/facebook-lawsuit-cp-511.html