Slides for a presentation on how to research social media. I discuss legal, ethical and privacy issues in accessing social media. I address specific sites and explore how privacy settings impact searches. I also discuss whether sites will cooperate with subpoenas along with getting the other side to download and provide accounts. In addition, I go over some question you will want to ask during the discovery process. Last I mention some specific cases and explore some ethics violations. This was presented in Philadelphia on July 30, 2015.

1. Searching Social Media
Pennsylvania Bar Institute
July, 2015
Jennifer Ellis
Lowenthal & Abrams, PC
&
Jennifer Ellis, JD, LLC
Jennifer@JLEllis.net
@JLE_JD

2. About Jennifer Ellis
• Lowenthal & Abrams, LLC
• Legal Ethics Attorney
• Manage Online Presence
• Jennifer Ellis, JD, LLC
• Online Marketing Consultant
• Expert Witness
• Author
• Wordpress in One Hour for Lawyers

3. Today’s Discussion
• What is Social Media?
• Unique considerations
• Legal
• Privacy
• Ethical
• How to Perform Research of Social Media
• Social Media Cases & Ethics Issues

4. What is Social Media?
• Websites and Applications
• Desktop, Laptop, Phone, Tablet (etc.)
• Users create and share content
• Engage in communication with each other and the
public at large
• May know who is seeing content
• May not know
• Content is easily shared
•Social media is meant to be shared
•It is NOT meant to be private

5. 1.44 billion
157 million daily in
US & Canada
21 min per day
1 billion users
4 billion views per day
6 billion hours per month
600 million
22% online adults
at least once per month
300 million
53% of 18-29
60.3 million US
70 million
80% women
42% of online
adult US Women550 million
50% of
People
Read Blogs
332 million
40% check daily
107 Million US
17 minutes monthly
97% lawyers listed
200,000 active lawyers
Over 6 million questions
100 million daily active users
30% U.S. millennial internet users –
every day

6. Unique Considerations

7. Legal Issues – Improper Access
Felony and/or Misdemeanor Charges
• Charges for Improper access to
• E-Mail
• Social Media
• All Accounts

8. Federal
• Electronic Communications Privacy Act
18 USC § 2510-2522
• Includes computer based communications
• Includes stored communications

9. Federal
• 18 USC § 2511
• Interception and disclosure of wire, oral,
or electronic communications prohibited
• intentionally discloses, or endeavors to
disclose, to any other person the contents
of any…communication…

10. Pennsylvania
• 18 § 7611. Unlawful use of computer and
other computer crimes. (3rd Degree Felony)
• Accesses or exceeds authorization to access
• Provides password or other information
allowing access to a third party

11. Applies to:
• Everyone
• Spouses
• Children
• Paralegals
• Private Investigators
• Attorneys

12. Subpoenas for Data?
•Most sites state they will not respond to a
civil subpoena
•Claim violates Stored Communications
Act
•Some sites will surprise you so ask

13. Subpoenas for Ownership
• Some sites will cooperate
• Provide email address
• Provide username or ID number

14. Privacy Issues –
Access Blocked
• Unlike traditional research
• Privacy settings can block access to undesired
viewers
• Privacy settings often complex and confusing
• Famous last words “I didn’t think anyone could
see it.”

15. Ethical Issues
•Can’t do it off line, can’t do it online
•No connecting with represented party
•May connect to witnesses
•Must reveal who you are
•May research jurors
•No connecting

16. Ethical Issues
• Fine to review
• What is publically available
• What legitimately connected people can see
• Make sure employees and independent
contractors understand rules
• Do not ask a third party to do what you cannot
do

17. Process and Examples

18. Don’t Forget the Litigation Hold!
Send a Notice to Preserve Immediately

19. Three or Four Pronged Approach
1. Gather Data about Person
• Interrogatories critical
• Ask the right questions
• Search Google
• Ask your client
• Ask people who know the subject
2. Locate Account(s)
3. Review Accounts
• Preserve data
4. Verify Information

20. Gather Data
• Name(s)
• Email Address(es)
• Site(s) using
• Links to accounts
• Is your client connected to the person?

21. Ask the Right Questions
• Do you use social media?
• Give examples, but make clear it is not limited
• Facebook, Snapchat, Twitter, Quora, Foursquare, MySpace
• Ask doctors and lawyers if they answer questions on sites
such as Avvo
• Find out the profession and hobbies. Ask if there are any sites
where the person answers questions.
• Do you comment on any blogs or websites?
• Give examples, but make clear it is not limited
• Do you post on any news groups?
• Don’t forget older online communication methods

22. Ask the Right Questions (Part 2)
• Identify each site
• Provide link to each site
• Provide user IDs
• You may need to provide instructions on how to obtain
user IDs for various sites
• Do you have a blog?
• Get the link
• Provide all email addresses used within X time
period

23. Ask the Right Questions (3)
• Have you altered your privacy settings?
• What changes have you made?
• Have you deleted any content within X period of
time?
• What have you deleted?
• When?
• Have you disabled any accounts?
• What have you disabled?
• When?

24. Ask the Right Questions (4)
• Do you have any social media pages (versus accounts)
• Do you use X, Y, Z to access your social media accounts?
• Phone, desktop computer, laptop computer, tablet, etc.
• Does anyone else have access to any of these devices?
• Who?
• When?
• Does anyone else access any of your social media
accounts?
• Which ones?
• Who?
• How?
• When?

25. Ask the Right Questions (5)
• Does anyone else have a password to any of your social
media accounts
• Which ones
• Who
• When?
• Have you posted anything related to this case online or via
any applications?
• What
• Where
• Provide copy
• Ask about specific issues you want to know about
• I.e., have they posted a picture of themselves holding alcohol
during X time period
• You may ask for username or password. A wise attorney will
refuse.

26. 2. Find the Account
• Use search techniques to find the account
• Might require offline techniques
• Spouse, friends, etc.
• Cooperation of account owner
• Discovery

27. Searching
• Look for the person’s name on specific sites
• Try Googling the person’s name
• Add the person’s name to identifying information
• Age
• Nickname
• Geographic location

28. Google Jennifer Ellis

29. Found
• Website for Jennifer Ellis, JD
• Website for Lowenthal & Abrams

30. Google Jennifer Ellis Esq

31. Found
• Website for Lowenthal & Abrams
• Website for Jennifer Ellis, JD
• Account on Avvo
• Account on LinkedIn
• Business Page on Facebook
• Class taught on LegalSpan
• Slideshare Account

32. Conclusion?
•Narrow the search
• Add additional terms
• Obtain more detailed and useful results
•Don’t narrow the search too much
• Try different terms for different results

33. 3. Review the Account
• Access what you can
•Privacy settings will be an issue in many
cases

34. Facebook

35. Privacy Settings
• Privacy control what you can see
• Friends can see a lot
• Can limit what specific friends can see
• Public can only see what owner of
account allows

36. What the Public Can See
No Information
Publicly Shared
Photos

37. What the Public Can See
Looks Like Curtis
Doesn’t Post Much

38. What Friends Can See
Details Curtis
has shared
Posts by
Others on
Curtis’ Wall
Friends

39. What Friends Can See
Check Ins to
locations
Interests
Posts
and
Answers

40. Control Settings for Each Post

41. Finding Someone on Facebook
• No Connection?
• Common name?
•Very Difficult

42. Get ID Link if You Can
• People can choose to be
searchable in Google, most don’t

43. Facebook
• Individual settings matter
• Can be set per post
• Tagging a person allows his friends to see the post

44. Researching a Person Who Contacted
Your Client on Facebook
• Someone posted something rude on a
Facebook Page
• Wanted to know who he was and why so
offended

45. Finding the Person
• Easy to find, because had posted on the
Page
• This gives link to account
• Able to access his account and determine:
• A Public Defender
• In Maryland
• Connected to Page through another
attorney who had “Liked” the page.
• Can send message to this person

46. Search Facebook Posts

47. A Word on Facebook Search
• Post must either be
• Public
• By a friend
• By a friend of a friend who tagged your mutual friend
• Otherwise you will not be able to see the post

48. Getting Data From Facebook
• Civil case?
• Basic subscriber information (not content)
• Indispensable to the case
• Not within a party’s possession
• Personal service of a valid federal, California or
California domesticated subpoena and after notice to
people affected
• Specifically identify accounts by email address and
Facebook user ID

49. Entire Account?
• Subpoena owner of account requiring download of
entire Facebook account
• Will not included deleted data

50. Snapchat

51. How Snapchat Works
• Pictures / Videos Disappear
• Countdown from 1-10 seconds
• Can sometimes replay
• Can save in phone’s gallery or send without saving
• Stories – Sharing Location
• Privacy settings control
• Seen by friends only or all Snapchatters for up to 24 hours
• Chat
• Send messages to friends
• Both sides view message
• Both “swipe away” = message deleted
• Unless someone chose to save it

52. Snapchat Deletes Images?
Just Take a
Screen Shot

53. Ask
• Did you save photos on your phone?
• See if you can get the phone
• To whom did you send photos?
• Might have sent to a witness or even opposing party
• Very common in family law and criminal cases
• With whom did you have chats?
• When did you send the photos?

55. Getting Data From Snapchat
• Must comply with ECPA
• 18 U.S.C. § 2703(c)(2) or 18 U.S.C. § 2703(d)
• Question whether will cooperate with civil
subpoena
• Maintains
• Snapchat username
• Email address
• Phone number
• Account creation date
• Timestamp and IP address of account logins and logouts

56. Snapchat Logs
• Retains logs in the form of meta-data about
messages
• Not content
• Only will cooperate with court order or a federal/state
warrant pursuant to 18 U.S.C. § 2703(d)

57. Sample Language
• Sample Language for Basic Subscriber Information:
“Records concerning the identity of the user with
the username ______ consisting of the email
address, phone number, account creation date, and
timestamps and IP address for account
logins/logouts.”

58. Twitter

59. Twitter Search

60. Twitter Requires Operators

61. More Twitter Operators

64. Privacy on Twitter
• Either very open or very closed
• Can require people to seek permission to follow you
• Will receive a message informing you the person
requires permission
• Person can approve or reject

65. Getting Data
• Subpoena requiring owner to download entire
account
• Subpoena requiring owner to request Twitter
provide non-public account information
• Owner must complete the privacy form
• Twitter will respond

66. YouTube & Other
Google Services

67. YouTube

68. YouTube: Filter

69. Don’t Forget Comments
• Many people who never post videos post
comments
• Remember to ask in interrogatories about comments on
YouTube

70. Google+
• Must be in your circles or
• Publicly shared
• Works like regular Google search
• Google+ results integrated into regular
Google results
• Bookmark search for repetition

71. Can Download Many Services

72. Civil Subpoena
• Gmail
• Subscriber registration information (e.g., name, account creation
information, associated email addresses, phone number)
• Sign-in IP addresses and associated time stamps
• YouTube
• Subscriber registration information
• Sign-in IP addresses and associated time stamps
• Google Voice
• Subscriber registration information
• Sign-up IP address and associated time stamp
• Telephone connection records
• Billing information
• Blogger
• Blog registration page
• Blog owner subscriber information

73. Google Authentication
• Google provides a certificate of authentication with
any data provided
• It does not provide experts to testify in court

74. LinkedIn

75. Posts Disappear Quickly
• Privacy settings impact what you can see
• Connection – can see all posts
• Not a connection – may be able to see who the person is
connected to. May not.

76. Getting Data
• Must be
• Indispensable to the case
• Not in party’s possession
• Valid subpoena and notice
• Should seek to have Member download account instead
• Provide basic subscriber information
• Email address
• Member ID
• Date and time of account creation
• IP addresses
• Profile page
• Date accounts accessed

78. LinkedIn Search

79. LinkedIn Search

80. 4. Verify
• Does the account belong to the person you are
seeking?
• Compare with what you know about the person
• Pictures
• Email address(es)
• Other details
• Use other accounts or online presence to verify
• Was the account created by a third party to hurt the
person?

81. In Court - Authentication
• If owner of account refuses to acknowledge
ownership of account or post
• Compare to texts (no social media opinions)
• Circumstantial evidence of ownership of account
• Must also show created actual post
• Jury then decides whether person authored
• Must still satisfy all other aspects of admission of
evidence
• Relevance
• Best evidence
• Etc.

82. Preserve the Data

83. Preservation
•Have a third party do the evidence
preservation
•Don’t be a witness in your own case
•Use video and images to show
preservation

84. How I Preserve & Authenticate
• Video and audio recording of my actions on the
computer
• Camtasia
• Screen captures
• Snag-It
• Explaining what I am doing
• Mention account identifying information (email, ID
number/name)
• Date and time
• Name of person doing the preservation

85. Case Law & Ethics Issues

86. Discovery of Data
• Can you find contradictory information?
• Is that information relevant?
• Discovery likely granted
• See Judge Wettick’s Opinion in Trail v. Lesko (2012).
• Cannot go on a fishing expedition

87. Relevance of Data
• Newell v. Campbell Transportation Co., Inc., No.
2:12-cv-1344 (W.D. Pa. Jan. 14, 2015)
• Plaintiff wanted to prevent introduction of
Facebook posts
• Irrelevant
• Unfairly prejudicial
• Claimed physically injured
• Posts showed Plaintiff engaged in “physically taxing
activities”
• Admitted

88. Authentication
• No cases specifically on social media … yet
• Texting – Commonwealth v. Koch, 29 A.3d 996 (Pa.
Super. 2011), aff’d 106 A.3d 705 (Pa. 2014)
• Must connect ownership of phone
• Must connect actual text
• Circumstantial evidence acceptable
• Most states follow this rule
• Not Maryland – requires direct evidence

89. Lawyers in Trouble

90. Adverse Inference
• Gatto v. United Airlines (D.N.J. 2013)
• Plaintiff claimed disabled account
• Account was deleted
• Court ordered adverse inference for failure to preserve

91. Major Trouble

92. Friending Opposing Side

93. Pretending to be Someone Else

94. Searching Social Media
Pennsylvania Bar Institute
July, 2015
Jennifer Ellis
Lowenthal & Abrams, PC
&
Jennifer Ellis, JD, LLC
Jennifer@JLEllis.net
@JLE_JD