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Social Media, the Legal System and Digital Footprints

The legal system is frequently slow to accept change, a problem that is more challenging when something is as “new” as social media. After all, Facebook has only been around for a few years.  Even when cases about it are appealed, it can take years to be heard and possibly even sent back to the trial courts for new hearings.  This area of the law is rapidly forming but it is not yet uniform or even predictable in the majority of our state courts.

What Do Attorneys Look For?

We’re looking for anything that helps us prove our case, in social media, texts, photos, videos, smart phone records, e-mails, lap tops, and anything else in electronic format. They can indicate someone’s location, what they have written (posts, etc.), and the date and time something was communicated. Finding photos that have been taken, and with whom, can be quite helpful.

Following the Footprints: How Do Attorneys Find It?

The short answer is that we can seek court orders that permit computer professionals to reach private information if we do not have legal access to the data.  Other times, people have public social media accounts, posts or web sites that are freely available to be printed. People publicly post photos of themselves that are truly shocking.  Even when data has been deleted, the right computer expert can probably find it. Attorneys can also subpoena the actual device and associated records from the owner of the data so an expert can access it. Cooperation by some communications companies (cell phone provider, for example) can be less than helpful when it comes to assisting with records.

The Civil Discovery Process

Another way to access information is through the civil discovery process.  With it, an attorney can require a party to the lawsuit to provide certain records, data and/or the actual device/computer, among other things.  The court may enter an order that requires certain electronic information to be provided, or an order that protects the information from being accessed. The North Carolina rules for civil discovery refer to “electronically stored information” which includes “reasonably accessible metadata that will enable the discovering party to have the ability to access such information as the date sent, date received, author, and recipients.” See Rule 26 of the NC Rules of Civil Procedure. There are exceptions that involve a judge ruling on whether additional types of metadata should be made available to the other party.  The judge also has the authority to award attorney’s fees that are generated because of the request or the refusal to provide information as requested.

How Do Civil (Non-Criminal) Courts Treat It?

This is the unpredictable part of the equation.  I’m going to use the term “data” to include all of the meanings in the paragraphs above.  As with any other evidence, a court must find the data to be relevant.  All the juicy things you find may be fantastic, but if the judge does not see the value of plodding through it based on the relevance to the particular case at hand, the data is excluded as evidence.  It must also comply with the NC Evidence Code. An example would be data protected by attorney client privilege, such as an e-mail from the other party to his or her attorney.

If the person who posted the data is not in court to testify, it might be hearsay and not admitted as evidence on that ground.  The data must be authentic, meaning the person seeking to admit the evidence must prove who wrote it.  Federal law may be implicated if someone accesses certain e-mails of their ex.  If audio is captured, the federal wiretap laws might also apply.  Wiretap laws created criminal and civil penalties that can include a $10,000 per incident fine.  In court, when someone fails to produce data the other party is entitled to, the court can create an “adverse inference,” which means the court will assume the version of events alleged by the party who requested the data is the correct version of events.

Although our state’s business courts, which are specialized courts only in a few counties, have created a thorough method for judges to use when deciding whether to allow data as evidence.  It remains to be seen whether their rulings (which are not binding on other courts) will adopt their approach or not.   See the case here:

Analog Devices, Inc. v. Christopher Michalski, Kiran Karnik and Maxim Integrated Products, Inc. 2006 NCBC 14 (2006).

More Questions But Fewer Answers

These topics are but a few of the largely unanswered questions when we try to figure out what the court should do when ruling on the admissibility of data:

  • Rights of third party owners (i.e., work cell or desktop, or a relative using a data family plan).
  • Violation of wiretap laws, invasion of privacy, etc.
  • Access to protected medical records contained in the computer or device, for example, your searches on the WebMD site.
  • Rights of third parties (potential witnesses) who communicated with someone privately, such as your friend’s comments made only to you, with an expectation of privacy.
  • Passwords and concerns about identity theft by various people who access it during the court process.  Examples: banking, credit card orders, employment records, privileged communications: Attorney client? Therapist/patient?
  • Access to cookies on the computer from controversial stes (dating web sites) or even illegal web sites.
  • How do you exclude data from the search when the court allows access to some things but not others?
  • If the actual device is produced, such as your cell phone, what if data is erased or altered?
  • What if the party seeking the data causes liability to you?  What if he or she accesses your email account and slanders someone using your email address, or visits obscene sites of minors?

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