How to Use Social Media to Support Your Fraud CaseWhitney Irish
Posting by Alex Helfand
The invasion of social media continues to complicate litigation. Effective litigation will increasingly include sifting through large amounts of electronically stored information (ESI) and piecing together fragmented social networking activity to substantiate a case. Exactly how does social media play into support for a fraud case and what are the considerations for preserving, obtaining, and using data from social media sites?
Social Media and the Clues Left Behind
While the most common social networking sites include Facebook and LinkedIn, other forms of social media include bookmarking sites, social news, media sharing (e.g., YouTube), microblogging (e.g., Twitter), and blog comments and forums. For the purposes of this topic, the focus will be on Facebook.
The insurance industry was the first to discover clues to fraud on social media. For example, through posted pictures of a waterskiing adventure on an expensive island vacation, it becomes clear that the person submitting an insurance claim for inability to work may be committing healthcare fraud. Companies in other industries may find clues to fraudulent activity by their employees in similar pictures and status updates which brazenly expose a lifestyle far more opulent than expected based on their known financial circumstances.
Ways Social Media May Be Permitted to Support a Fraud Case
Outside of the insurance industry, at this time most information obtained from social media is intended to be used as intelligence, not evidence. In this manner, discovered information may be used as a lead or to substantiate existing evidence, and other accepted investigative techniques can confirm or verify and become part of the case support.
Privacy issues arise as some may argue that their privacy settings are configured to prevent viewing from outside parties, but generally that argument is not accepted. This is due to the fact that most social networking – despite any settings – has no reasonable expectation of privacy; potential third parties in the form of the others who have access to the information (e.g., “Friends” on Facebook) do in fact exist.
The U.S. Stored Communications Act protects electronic communications held by Internet service providers (ISPs) and generally prohibits ISPs from disclosing the information stored on their servers without the user’s consent. Exceptions include state and federal entities if they have a warrant or subpoena. (You may remember that this year’s events also unearthed the fact that the National Security Administration (NSA), does actually access data from ISPs on a wide scale; two federal judges have provided two different rulings on this issue.) Also, courts may order the party directly to produce the communications.
Other Considerations When Using Social Media as Evidence or Support
Ethics of course play a role in accessing social media. It’s one thing to find incriminating posts or photos that are open to the world; it’s quite another to “friend” someone under false pretenses in order to find such evidence. In many cases a third-party investigator would use such a technique, but when working directly with an attorney, as a rule, this is not permitted.
Although it may seem like a smart idea for a litigant to remove incriminating evidence after the case has begun, that may violate state and federal evidence rules against spoliation (i.e., the act of destroying evidence or otherwise making it unavailable). On top of that, removing information from one’s Facebook page does NOT necessarily mean that it is erased everywhere – it likely resides on the social networking service’s servers.
Digital forensics continues to expand as a field, as technology and social media continue to grow. As more areas are investigated, the cost of the case increases. It’s important to consider in advance what will be reviewed and how much time it will take to retrieve something useful and usable. It’s also imperative to obtain other permissions to access the social media site(s) in the first place. The total cost for additional research into social media may exceed the value of the case, and if the case isn’t known to be a slam-dunk, the expense could do more harm to the firm.
The use of social media as support is, however, relatively new. As time goes by there will likely be more clear directives on obtaining and using such information, as well as more difficulties posed. But one thing is for sure – social media posts and activity cannot be ignored in the realm of litigation.