Whether you are updating your status on MySpace or Twitter, posting an embarrassing video of your friend in Vegas on YouTube, uploading photographs
Whether you are updating your status on MySpace or Twitter, posting an embarrassing video of your friend in Vegas on YouTube, uploading photographs of your vacation on Instagram or Flickr, networking on LinkedIn or checking in with FourSquare or Facebook, chances are you interact with social media on a daily basis. Social networking websites permeate our internet-based culture, with Facebook leading the way with approximately 550 million daily users and 955 million monthly users (Facebook Newsroom, Key Facts, Statistics, last viewed on August 1, 2012). While these sites first became prevalent in college dorm rooms, the 35 and over demographic now represents 30 percent of the entire Facebook userbase. David C. Anderson and Melissa E. Graves, Social Media and Word-of-Mouse Discovery Tips 4 Litig8ors, DRI Blog, Volume 3 Issue 1, April 10, 2012. Since more than a third of adults on social media sites still allow anyone to see their information, these web pages can be a gold mine of information for any insurance investigator with an internet connection. Stephen P. Laitinen and Hilary J. Loynes, A New “Must Use” Tool in Litigation?, For The Defense, August 2010, pages 16-21. For example, if the insured has filed a suspicious property claim, these sites may provide photographs of the layout and contents of the house or apartment, information regarding the insured’s occupation and habits, and even where the insured was at the time of the loss. For workers’ compensation claims, information on a claimant’s pre- and post-injury activities and insight into their mental state may be available. These sites could also contain information confirming fraud or misrepresentations or impeaching testimony regarding the loss or injury, through incriminating photos, blogs or posts. Like any new media, investigators should be cautious of how they use social networking websites based on newly evolving regulations and ethical opinions.
Public or Private Information
There are currently no limitations or restrictions on an investigator’s ability to search the internet for public information about an insured/claimant. Any information gathered from public pages is fair game in both claim investigation and litigation, based on the idea that there is no expectation of privacy on social media sites when the content is available for anyone’s viewing. Moreno v. Hartford Sentinel, Inc., 172 Cal. App. 4th 1125 (Cal. Ct. App. 2009) (holding an employee who posted on her public MySpace page had no reasonable expectation of privacy, even though page only identified her by first name and post was deleted within a week). Therefore, the first step to utilizing social media in an investigation is to run general internet searches and check the major social media sites for your insured or claimant.
A lot of social networking sites either have limited visibility for user’s pages (i.e., LinkedIn) or have established privacy settings controlled by the user (i.e., Facebook). This means that some information may not be publically available. While rules of ethics and professionalism for attorneys vary by state, early opinions by New York City Bar’s Committee on Professional Ethics and the Philadelphia Bar Association’s Professional Guidance Committee hold that the practice of “friending” or connecting with an insured/claimant would be in violation of numerous ethical and professional rules. (See NY Eth. Op. 843, 2010 WL 3961381 and Upon Further Review, Phila. Bar Ass’n Prof. Guidance Committee Op. 2009-02 (March 2009) These opinions imply that connecting or “friending” an insured/claimant to gather information may lead to allegations of fraud or misrepresentation and violate various websites’ terms of service.
If public information on social media pages is clearly contrary to an insured/claimant’s claim, it will be reasonable to argue during litigation that private portions may contain further evidence which should be made available in discovery. Romano v. Steelcase, 2010 NY Slip Op 20388 (N.Y. Sup. Ct. 9/21/2010), narrowed inPatterson v. Turner Construction (2011 NY Slip Op 07572, October 27, 2011). Patterson affirmed Romano’s holding that “[t]he postings …. if relevant, are not shielded from discovery merely because plaintiff used the service’s privacy settings to restrict access” although the case was remanded “for a more specific identification of …. information that is relevant, in that it contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.” Id.
Once an investigator gets information, they need to confirm and authenticate that pages of a specific user were actually created by the insured/claimant. There is currently no case law regarding whether an insured can be required to provide copies of their social media pages during an insurance investigation, however confirming any sites they use and usernames could be accomplished during a recorded or sworn statement if they refused to provide the pages themselves. Information about how a user can download their page is available in the Facebook Help Center. Another method is to send a preservation letter to a specific social network, to identify and preserve the insured/claimant’s pages. This may halt any subsequent deletions and prevent the user from deactivating or deleting their accounts. Facebook currently keeps all user data, including deleted entries, until the account is deactivated or deleted. Facebook Help Center.
When private information is publicly unavailable, there are three options: (1) get the content from the user/insured/claimant, (2) have the claimant provide consent to get the information directly from the site or (3) attempt to get it from the social media site directly without the insured/claimant’s consent, via demand letter or subpoena. While the easiest option may be getting the information directly from the user, this gives them a chance to “clean up” their pages prior to production. Therefore having an insured/claimant provide consent is the best method for a complete and comprehensive document of all their social networking activities.
Consent is necessary due to the application of the Federal Stored Communications Act (SCA) which prevents providers of communication services from knowingly divulging the contents of private communication to “any person or entity.” 18 U.S.C. § 2702(a)(1) and (2). The only other exception to the SCA is based on criminal matters and even subpoenas were originally quashed. Crispin v. Christian Audigier, Inc., 717 F.Supp.2d 965 (C.D. Cal. 2010)(where court found some information on user’s pages protected by SCA); Ledbetter v. Wal-Mart Stores, Inc., No. 06-cv-01958-WYD-MJW, 2009 WL 1067018 (D. Colo. April 21, 2009) (where information was reasonably calculated to lead to the discovery of admissible evidence and was relevant to the case, subpoena was valid). Currently case law regarding whether media networking sites can be ordered, by subpoena or motions to compel, to provide information is in flux.
Once the claim is in litigation, non-public information may be more accessible if claimants place certain circumstances, such as physical condition or mental state, at issue in litigation. See Zimmerman v. Weis Markets, No. CV-09-1535, 2011 WL 2065410 (Pa. Com. Pl. May 19, 2011)(where former forklift operator plaintiff claimed serious health problem, yet employer found public postings of him enjoying motorcycle riding and bike stunts);EEOC v. Simply Store Management, LLC, 270 F.R.D. 430, 434 (S.D. Ind. 2010)(where severe emotional or mental injury should reasonably be revealed within social media’s page’s content).
While technology has evolved, providing mountains of digital information at an investigator’s fingertips, the law has not kept up with the social media’s growth and questions remain regarding any reasonable expectation of privacy within various social networking forums. Until Georgia case law and/or statutes address confusing precedents concerning rights and access to a person’s social media, investigators should limit searches to public pages, noting if there is contrary information, and should not attempt to fake “friend” insureds/claimants or witnesses in order to get access to additional non-public information.
Tips and Tricks for Social Media Investigations:
- start by running general searches with information regarding your insured or claimant.
- popular search engines are Google, Yahoo! Search, Bing.com, and Icerocket.com
- check for user’s pages or information on a wide variety of social media networks.
- The most popular are Facebook, MySpace and Twitter.
- Also check smaller sites like Blogger, Flickr, Instagram, LinkedIn, Foursquare, Google+, LiveJournal, Shutterfly, Snapfish, and Pinterest.
- Depending on the claim/loss, look at activity-specific social media sites, for example: eHarmony, Match, and SugarDaddy.com for dating or MapMyRide, MapMyRun, Fitocracy, or Endomondo for fitness.
- Make sure to check local news website, including television stations and newspaper websites, as many of these allow users to “comment” on stories.
- Capture and date stamp pages with screenshots or with help from your IT professional.
- Check social media sites of close friends and family for additional public information
- Use family members and friends’ pages to confirm pages for a specific insured/ claimant.
- Helpful for common names, i.e., check Facebook friends for family members or LinkedIn for prior or current employers based on information from the claim.
- Ask insured/claimant for information about social media during recorded statements, interviews, examinations under oath and depositions.
- Confirm email addresses and ask about sites used, user names, etc.
- Check access, for example, some couples share pages and/or passwords.
- Request insured/claimant provide their pages and/or send preservation letter to the networking site.
Online Resources (all last accessed on August 1, 2012):
- Facebook Newsroom, Key Facts, Statistics, http://newsroom.fb.com/content/default.aspx?NewsAreaId=22
- Social Media and Word-of-Mouse Discovery Tips 4 Litig8ors, http://dritoday.org/feature.aspx?id=16
- A New “Must Use” Tool in Litigation?http://www.larsonking.com/files/A%20New%20Must%20Use%20Tool%20in%20Litigation.pdf
- Upon Further Review, http://uponfurtherreview.philadelphiabar.org/page/Article?articleID=3e3477ea-c75b-4a34-abb5-885c98faa3c3
- Facebook Help Center., http://www.facebook.com/help/search/?q=keep+information
- Facebook Help Center, http://www.facebook.com/help/?page=116481065103985
- Facebook Data Use Policy. http://www.facebook.com/about/privacy/#!/about/privacy/other
 All citations to online resources are presented by hyperlink. If you are reading a paper version of this article, please refer to the citations at the end.