Admissions Evidence

Admissions in Evidence in the United States

Gathering Evidence from Social Networking Sites

By Marcia Hofmann. She is a senior staff attorney at the Electronic Frontier Foundation, and focuses on digital civil liberties issues (2011)

The legal pitfalls of obtaining personal information from social networking sites.

Lawyers may be tempted to mine social networking services for information relevant to their cases. After all, these sites store a wealth of personal information about their users, detailing their comments, daily activities, and associations. But legal and ethical pitfalls confront lawyers who try to collect such information.

In the first place, it’s nearly impossible to win a civil subpoena to get user communications from a social networking site. Generally, anything reasonably calculated to lead to admissible evidence is discoverable. However, the Stored Communications Act (SCA) (18 U.S.C. §§ 2701 – 2712) protects user information and records stored by providers of “electronic communication services” and “remote computing services.”

For the most part, providers covered by the SCA are prohibited from voluntarily disclosing the contents of communications. (18 U.S.C. § 2702.) The SCA allows law enforcement agencies to compel disclosure of various types of user information only if they satisfy an intricate set of legal standards, ranging from a warrant requirement to gain access to the contents of certain user communications, to lesser court orders or subpoenas for other types of content or subscriber records. (18 U.S.C. § 2703.) The statute also provides a form of immunity for providers who comply with court orders. (18 U.S.C. § 2703(e), 2707(e).)

Most important, though, the statute doesn’t provide a way for civil litigants to obtain user communications that are stored with providers. (See O’Grady v. Superior Court, 139 Cal. App. 4th 1423, 1442 – 1447 (2006).) Furthermore, two federal judges in California have held that users have standing to move to quash a subpoena served upon a third party seeking personal information protected by the SCA. (See Chasten v. Franklin, 2010 WL 4065606 (N.D. Cal.); Crispin v. Audigier, Inc., 2010 WL 2293238 (C.D. Cal).)

But the Stored Communications Act hasn’t been substantially updated since its passage in 1986, so its applicability to recent innovations like social networking websites is remarkably unclear. The only federal court to consider the question–California’s Central District in the Crispin case–held that the SCA does apply to social networking services, including Facebook and MySpace. The reasoning goes that they’re electronic communication service providers when they provide email or private messaging services, and they’re remote computing service providers when they store private communications that subscribers have read (Crispin, 2010 WL 2293238 at *9 – 15).

They’re also covered by the SCA for purposes of storing “wall” posts and comments made available by a subscriber to only certain approved users. As a result, the Central District court held, the statute precludes civil litigants from using subpoenas to retrieve private messages and other content from social networking service providers whenever the user has restricted access to the information to “friends,” excluding the general public (Crispin, 2010 WL 2293238 at *14 – 16).

California law also punishes parties who attempt to subpoena social networking sites’ user information to unmask an anonymous user if the subpoena is issued in a meritless lawsuit that was initiated in another state. California Code of Civil Procedure section 1987.2(b) was recently amended to provide for the mandatory award of attorneys fees to an anonymous speaker who successfully quashes a California subpoena seeking identifying information from a service provider where “the underlying action arises from the moving party’s exercise of free speech rights on the Internet and the respondent has failed to make a prima facie showing of a cause of action” in out-of-state litigation. This means that litigants from other states who try to misuse the California legal system to expose anonymous speakers must pay their targets’ attorneys fees if the court finds their underlying claims baseless.

Next, is it OK to create a fake profile in hopes of persuading a user of interest to give you access to her profile, or to persuade someone who is already a “friend” of a target to reveal information to you? Nothing in the Federal Rules of Evidence, the California Rules of Professional Conduct, or the ABA Model Rules of Professional Conduct directly addresses these questions. However, under California’s ethics regime and based on guidance issued by other states’ ethics committees, it’s clear that honesty is the best policy.
California Business and Professions Code section 6106 forbids attorneys from committing “any act involving moral turpitude, dishonesty, or corruption,” while section 6128 similarly provides misdemeanor penalties for any lawyer who “is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party.”

In criminal matters, California Penal Code section 1054.8(a) forbids prosecutors, defense attorneys, or investigators working for either side to contact victims or witnesses without clearly identifying themselves, who they work for, and who they represent. And California Rule of Professional Conduct 2-100 forbids lawyers from communicating directly with a party represented by another lawyer in the matter, without obtaining that lawyer’s consent.

Though California’s legal ethics and rules do not directly address the issue of lawyers asking a third party to “friend” a potential witness–presumably to gain access to information that could be used to impeach the testimony of that witness–local bar associations in other states have weighed in on this issue. In both New York City and Philadelphia, for example, ethics committees have determined that falsely friending someone to obtain information–whether done directly by counsel or through a third party–is improper. (See Bar Assoc. of the City of New York, Comm. on Prof. Ethics, Formal Opn. 2010-2 (Sept. 10, 2010); Phila. Bar Assoc., Prof. Guidance Comm., Opinion 2009-02 (Mar. 2009).) The opinions cite rules similar to the California statutes mentioned above that bar dishonesty and deceit by attorneys.

Although creating a fake profile may also violate a social network site’s terms of service, it doesn’t constitute a violation of computer crime laws, as both the federal government and Facebook have unsuccessfully argued. (See United States v. Drew, 259 F.R.D. 449 (C.D. Cal. 2009) (rejecting government’s argument that violating MySpace’s terms of service is itself a violation of the Computer Fraud and Abuse Act [18 U.S.C. § 1030]; Facebook, Inc. v. Power Ventures, Inc., 2010 WL 3291750 (N.D. Cal.) (rejecting Facebook’s argument that breaching terms of service constitutes access without permission in violation of California Penal Code § 502).)

Conducting Research on Social-Networking. Websites in California

According to David Lee and Shane Witnov, from the Samuelson Law, Technology & Public Policy Clinic, UC Berkeley School of Law:

Investigators are limited in their use of social-networking websites for research by a number of different factors including state and federal law, the website’s terms of use, and ethical rules (See, e.g., Cal. Penal Code §1054.8, 18 U.S.C. §§ 2701-2711)

At times, ethical and legal restrictions are unclear and the value of the information to be obtained should be weighed against the potential consequences in consultation with the team investigating the case. Generally, a conservative approach should be adopted to ensure legal compliance, preserve the goodwill of the courts and opposing counsel, and to maintain high ethical standards.

Making misrepresentations on a social-networking website, when the misrepresentations are targeted at an individual in order to get information that would otherwise be unavailable

An investigator should not misrepresent herself on a social-networking website in order to get information that would otherwise be unavailable. The terms of use forbid members from misrepresenting themselves (for example, Facebook’s terms of use requires that all information provided be “accurate, current and complete.”

MySpace’s terms of use similarly requires that information should be accurate). Furthermore, the ethical rules binding lawyers and those working under them generally forbid misrepresentations (the California Business and Professional Code orders attorneys to use “means only as are consistent with truth.” Cal. Bus. & Prof. Code § 6068).

Misrepresentations could include omitting relevant information from an investigator’s profile, especially the investigator’s current job and title (the investigator’s role as investigator is so central to her use of the social network profile, that omission could be seen as a misrepresentation under Cal. Bus. & Prof. Code § 6068).

Because the terms of use require users to “provide their real names and information,”(Facebook Terms of Use) the profile should include the investigator’s current employer and job title if the investigator is going to make friend requests. It might be considered a misrepresentation if the investigator omitted employment information and then a person of interest accepted a friend request thinking the investigator was not involved in the legal case the member was involved in.

An investigator may also be tempted to lie about her city of residence or schools to gain access to other networks. While these may be minor misrepresentations, they are carefully targeted deceptions to gain access to information that would not otherwise be available. Targeted misrepresentations are probably unethical (See Cal. Bus. & Prof. Code §§ 6068, 6106, 6128 for laws forbidding deception).

Contacting (email, message, or “friend” request) the victim or other persons disclosed by the opposing party or other persons represented by counsel without full disclosure of your professional affiliation

California Penal Code section 1054.8 prohibits an investigator from communicating with the victim or any potential witnesses identified by the prosecution without identifying herself, the full name of her agency, and that she is working for the client. Asking someone to be your friend on a social-networking website without disclosing all of the required information in the friend request would probably be a violation of the statute. Emailing or messaging such a person is also prohibited.

Furthermore, an investigator should never contact anyone who she knows is represented by counsel about the matter for which the representation was obtained (Cal. Rules of Prof. Conduct 2-100). However, accessing publicly-available information on a victim, disclosed witnesses, or represented party is allowed as described above.

Creating a fictitious account

An investigator should not create a fictitious account on a social-networking website using a fake name and other false information in order to gain access to other users’ information. Such behavior involves deception and is therefore unethical (See Cal. Bus. & Prof. Code §§ 6068, 6106, 6128 for laws forbidding deception).

Furthermore, it may be a criminal violation of the website’s terms of use. Cal. Bus. & Prof. Code §§ 6068, 6106, 6128 prohibit deceit and dishonesty, while requiring that lawyers only use means consistent with the truth.


See Also

  • Admissible Evidence
  • Rules Of Evidence
  • Evidence Law
  • Competence and Evidence
  • Evidence Privileges
  • Federal Rules Of Evidence
  • Evidence Of Indebtedness
  • Parol Evidence
  • Documentary Evidence
  • DNA Evidence
  • Preponderance Of The Evidence
  • Oral Evidence
  • Adminicular Evidence
  • Evidence Law Relevance
  • Direct Evidence

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