The Do s and Don ts of Utilizing Social Media in Claims Investigation

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1 The Do s and Don ts of Utilizing Social Media in Claims Investigation Benjamin R. Messing, Esquire 2012 SIR Annual Conference October 15, 2012 Nelson Levine de Luca & Hamilton, LLC

2 Understanding Social Media What is social media? Any platform which allows the creation and exchange of user-generated content Six different types of social media Collaborative projects (Wikipedia) Blogs and microblogs (Twitter) Content communities (YouTube) Social networking sites (Facebook, Reddit) Virtual game worlds (World of Warcraft) Virtual social worlds (Second Life).

3 Understanding Social Media How has social media changed our world? Facebook tops Google for weekly traffic in the U.S. Social networking now accounts for 22% of all time spent online in the U.S. 80% of companies use social media for recruitment One out of eight couples married in the U.S. last year met via social media One in four people aged 65 and older are now part of a social networking site Social media has overtaken pornography as the number one activity on the web

4 Understanding Social Media Why is social media so powerful? Social media is a platform in which we play a role that entertains an audience willing to listen We crave attention from others, but we also want others to see us in a particular light Approval from others gives us a higher sense of self-esteem Recognition from others matters to our selfworth and how deeply we value ourselves

5 Understanding Social Media Practical consequences of social media What you say or post may be viewed all around the world instantly There is no filter and there is no undo button Even after you remove information or delete an account, copies of that information may remain viewable elsewhere to the extent it has been shared with others Social Media + Mobile Devices = You can now be in two (or more) places at once

6 Understanding the Risk Exposure What are some of the potential claim handling risks involved with social media? Unfair Claims Settlement Practices Bad Faith Invasion of Privacy Cyber Crime / Computer Hacking Laws

7 Understanding the Risk Exposure Unfair Claims Settlement Practices Misrepresentation of insurance policy provisions Failing to adopt and implement reasonable standards for the prompt investigation of claims Failing to acknowledge or to act reasonably promptly when claims are presented Refusing to pay claims without an investigation

8 Understanding the Risk Exposure Bad Faith Breach of the duty of an insurance company to act fairly and in good faith Designed as a remedy for where the delay or denial of benefits is unreasonable, without proper cause, outrageous or malicious The more egregious the conduct the greater likelihood of recovery

9 Understanding the Risk Exposure Invasion of Privacy The legal notion of privacy is founded on the idea that individuals may protect certain documents, letters, photographs or private conduct which are no business of the public A person has a reasonable privacy interest in facts of a highly personal or intimate nature that have not been left open to the public eye or previously made public

10 Understanding the Risk Exposure Cyber Crime/Computer Hacking Laws Intentionally broad and nebulous Designed to encompass new and evolving technologies Criminal statutes with criminal penalties (i.e. jail time) If brought, most likely not by District Attorney but rather as a private criminal action

11 Understanding the Risk Exposure How do the risks identified apply to social media? Unfair Claims Practices Does not typically apply Bad Faith May apply in some circumstances Invasion of Privacy Does apply Cyber Crime / Computer Hacking Laws Does apply

12 Invasion of Privacy Invasion of privacy exists at common law and encompasses four distinct torts Intrusion on seclusion Public disclosure of private facts False light in the public eye Misappropriation of a person s name or likeness

13 Invasion of Privacy Intrusion on seclusion One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person. Restatement (Second) of Torts 652B (1977)

14 Invasion of Privacy Public disclosure of private facts One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that: (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public. Restatement (Second) of Torts 652D (1977)

15 Invasion of Privacy Examples of private information Sexual relations Family quarrels Unpleasant or humiliating illnesses Intimate personal letters Intimate details of one s life

16 Invasion of Privacy What is the likelihood of a successful claim for invasion of privacy? Most social media involves voluntary selfpublication of private information The act of self-publication negates the essential element of the information being private However, simply uploading private information is not necessarily self-publication if others cannot see it or the publication is restricted

17 Cyber Crimes/Computer Hacking Laws Unlawful use of a computer accessing or exceeding authorization of a computer network with the intent to execute any scheme or artifice to defraud or deceive by means of false or fraudulent pretenses, representations or promises 18 Pa.C.S. 7611

18 Cyber Crimes/Computer Hacking Unlawful duplication Laws causes to be made an unauthorized copy, in any form, including, but not limited to, any printed or electronic form of computer data 18 Pa.C.S. 7614

19 Cyber Crimes/Computer Hacking Computer trespass Laws without authority or in excess of given authority temporarily or permanently remove computer data from a computer or computer network 18 Pa.C.S. 7615

20 Cyber Crimes/Computer Hacking Laws What is the likelihood of a violation of a cyber crime/computer hacking law? Case law is still evolving Criminal statutes are narrowly construed and have precise definitions Cyber crime/computer hacking laws are broad and nebulous If the conduct alleged does not match the statute there is no violation

21 Hypothetical #1 During a claims investigation while searching for personal information about a witness you come across a blog site Before entering the site there is warning message: THIS IS MY PERSONAL ONLINE DIARY. IF YOU ARE A TEACHER, PARENT, LAWYER, DOCTOR, INDIAN CHIEF, POLICEMAN, HOMELAND SECURITY, IMMIGRATION, POLITICIAN, TELEMARKETER, SALESMAN OR ANYBODY ELSE I DID NOT GIVE EXPRESS PERMISSION TO ENTER, DON T COME IN. YOU ARE NOT WELCOME AND DO NOT HAVE MY CONSENT TO GO FURTHER. Can you go further?

22 Hypothetical #2 Your SIU investigator reports back that the Facebook account of the claimant is private and cannot be accessed by the general public However, the SIU investigator just happens to be a friend of a friend of the claimant, so he can access the claimant s private information from his personal Facebook account Is this ok? Can you use it, and for what purposes? Is the information admissible?

23 Hypothetical #3 A witness statement is obtained from an exspouse of the claimant who mentions in passing that the claimant always uses the kids name and birthday for passwords You go to the claimant s Facebook page and try it out, and sure enough, the password is sam0512 you are now logged as the owner of the Facebook account Is this ok? Is it admissible? Can you use it, and for what purposes?

24 Best Practices Social media is now an essential claim investigation tool The method you use to access social media is of critical importance Rule of Thumb: If you can t access the information publically, you probably shouldn t be accessing it

25 Best Practices At minimum, always identify the types of social media used during recorded statements Make requests social media for content standard operating procedure "Download Your Information Tool on Facebook Twitter account download command: unt.xml?count=n

26 Best Practices Be aware of the cost, hassle and time involved in subpoenaing information from social media sites Litigating outside of California will require domestication of a foreign subpoena Hefty fees are charged for processing requests Content versus access log requests

27 Best Practices Be aware of the cost, hassle, and time involved in subpoenaing information from social media sites (con t) Stored Communications Act, 18 U.S.C to 2712 Potential bar to production of information, even in response to a civil subpoena Use notarized user consent forms Juror Number One v. Superior Court, 206 Cal.App.4 th 854, May 31, 2012

28 Questions Benjamin Messing (215)

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