How to Use Social Networking Sites for Investigative Research: The What, Why and How. Carole Levitt, JD MLS & Mark Rosch Internet For Lawyers

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1 How to Use Social Networking Sites for Investigative Research: The What, Why and How By Carole Levitt, JD MLS & Mark Rosch Internet For Lawyers Why Bother with Social Media Research Social networking sites were originally the domains of the 20-and-under crowd, but as the number of users increases, so does the average age of those users. A September 2012 report by the Pew Internet & American Life Project found that 81 percent of adults used the Internet. Of those, 69 percent use social networking sites like Facebook, LinkedIn or Google Plus. This is an increase of 3 percentage points over a similar survey the year previous. ( What Internet Users do Online, available at In a different report from 2010, Pew found that those online adults preferred Facebook by a wide margin with 73 percent reporting having a profile on Facebook, 48 percent having a profile on Myspace, and 14 percent having a LinkedIn profile. This earlier report also found that more than half of respondents (52 percent) reported having two or more profiles. ( Social Media & Mobile Internet Use Among Teens and Young Adults, available at Participants in these online social networks tend to share personal information very freely in their profiles. Often this is because they forget that their intended audience members (e.g., their online friends) are not the only people who can see it. Depending on how these users set up their accounts, their profiles might be open to viewing by anyone on the Internet. Recently, attorneys have been able to find information in social networking profiles that has made a difference in the outcomes of their cases. In November All rights reserved Page

2 2011, e-discovery vendor X1 Discovery reviewed state and federal court cases with written decisions available online from January 1, 2010 through November 1, 2011, looking for cases that involved social media evidence in some capacity. They found 674 cases that fit that description. The search was limited to the top four social networking sites and the tally came out as follows: Myspace (326 cases), Facebook (262), Twitter (49) LinkedIn (37). (Jon Patzakis, 674 Published Cases Involving Social Media Evidence, [November 9, 2011]). A similar survey covering the first half of 2012 discovered 319 cases, an 85% increase over the same period in Using the same criteria, that survey found, Facebook is now far in the lead with 197 cases (Jon Patzakis, Mid-Year Report: Legal Cases Involving Social Media Rapidly Increasing, [July 23, 2012]). Here are a few examples of when a social networking profile made a difference in cases outcomes: In a Santa Barbara, California case, prosecutors said information a woman posted about her partying lifestyle on Myspace was the difference between a judge ordering a prison sentence rather than probation in a drunken driving crash that had killed her passenger. One attorney recently told us that his wife (also an attorney) was able to locate an elusive individual and serve her based on information the individual had posted in her Facebook profile. Another attorney was able to locate a missing witness using Myspace, even though the witness did not have a profile her young daughter did. Lawyers have even used the information they have found in judge s profiles to get them disqualified from cases. In addition, lawyers are using social media to view potential jurors profiles to identify ones who fit the description of their ideal juror. (We were recently brought in to conduct social media background research on potential jurors in a All rights reserved Page

3 multi-million dollar personal injury case for just this reason after the defense attorneys had worked with a jury consultant to develop an ideal juror. ) Getting information admitted into evidence that has been retrieved from social media profiles has become another challenge to lawyers, especially if the owner of the profile uses a pseudonym. In Tienda v. State, No CR (Tex. App. Dallas, December 17, 2010) (do not publish), available at a murderer appealed his conviction, arguing that the trial court erred in admitting evidence from his Myspace profile because there was no proof he had created and maintained that profile. The profile included the following information: the pseudonym Smiley, which he was known by, and which witnesses testified about; photographs of the appellant, with one displaying his electronic monitor and another his tattoo; references to the murder; and addresses incorporating both Smiley and his real name. He asserted that the profile had not been authenticated. The appeals court rejected his assertion and affirmed the trial court s decision, explaining that: The inherent nature of social networking websites encourages members who choose to use pseudonyms to identify themselves by posting profile pictures or descriptions of their physical appearances, personal backgrounds, and lifestyles. This type of individualization is significant in authenticating a particular profile page as having been created by the person depicted in it. The more particular and individualized the information, the greater the support for a reasonable juror's finding that the person depicted supplied the information. In 2012, the case was affirmed by Tienda v. State, No. PD (Tex. Crim. App. Dallas, February 8, 2012), available at For an opposing decision, see Griffin v. State, 419 Md. 343, 19 A.3d 415 (2011), available at The Texas Criminal Appeals Court distinguished its decision from Griffin, by explaining that, "[t]here are far more circumstantial indicia of authenticity in this case than in Griffin enough, we All rights reserved Page

4 think, to support a prima facie case that would justify admitting the evidence and submitting the ultimate question of authenticity to the jury." We have collected a number of the more-often-cited cases that involve evidence from social networking sites and links to the full decisions and/or orders at Additionally, we regularly add new cases to this list as we hear about them. Myspace Myspace reportedly had 25 million registered users as of February (Josh Halliday, Myspace Adds 1M New Users in 30 Days, The Guardian, available at While the service has undergone a highly publicized relaunch, reliable newer numbers are not available at this time. While it has lost favor with the bulk of the public, the X1 Discovery survey of cases involving evidence from social media shows that it is still worth a lawyer s time to check. Myspace provides a Search box, located at the top of each Myspace page, which includes a number of limiters (in a drop-down menu) to help you narrow in on the types of information you are looking for in the profiles. The two most useful limiters to online researchers are All Myspace (which allows you to search using names and/or keywords and presumably searches through all visible content contained in Myspace profiles) and People (which allows you to search using names or addresses and appears to search through the registration database of Myspace). The beauty of searching the People limiter is that it allows you to search by people s real names or addresses (if they registered with their real name or address) even if they don t display it on the visible portion of their profile. Many people register with their real name, but when they create their profile, they realize that they should not display it on their profile and select a pseudonym as a screen name to display but it s too late if they ve All rights reserved Page

5 already registered with their real name, since we can search it by using the People limiter. Facebook Facebook contains self-created profiles of nearly 900 million people around the world. When the site initially became available to the general public, members were broken down into networks based on their attendance at specific schools, employment at specific workplaces, etc. Over time, those networks have become less and less important. One useful fact for background and investigative researchers is that most Facebook users create their profiles using their real names. It is possible to search Facebook and view a results list without being logged into your own account (however, the available information is limited). It is also possible to Browse by Name for profiles at without logging into a Facebook profile. However, the browseable name list itself appears incomplete. For example, browsing for the profile of co-author Mark Rosch presented us with links to two profiles for individuals named Mark Rosch but none of them was the profile of this book s co-author. Additionally, when we followed the link to one of those profiles, a list of Others Named Mark Rosch was also displayed. It included a link to a Mark Rosch who had not been included on the original browseable list but the profile we were looking for was still not listed there. Also note that the browseable list is arranged alphabetically by first name. Even with those drawbacks, the Browse by Name option is still better than the Find People By Last Name option (on the same page), which is so cumbersome as to be unusable. Being logged into your own Facebook account, however, gives you more flexibility in creating a targeted search. Once logged in, a search box appears at All rights reserved Page

6 the very top of your Facebook s page. Using this search box, you can search using people s names, places, and things (e.g., employer s names, addresses, job titles, or other keywords). However, as we are writing this paper, Facebook is in the midst of rolling out a new search, so you may see something different. Twitter With more than 500 million users, Twitter ( the most popular microblogging site, limits posts (known as tweets ) to just 140 characters. Microblogging sites are even easier to update than the traditional social networking sites already discussed. These posts often address the answer to the question What s happening? and can include details about the individual poster s daily activities. Increasingly, users are posting links to, and commentary about, news stories and current events. Reviewing this information for indicators of an individual s interests, points of view, or even political leanings can be very useful to attorneys conducting juror research. Those visiting Twitter s home page will no longer see the simple search form until they log into their account. For those who do not have an account, you can still search, but you will need to visit instead. There, you can keyword search through the millions of individual tweets from (roughly) the last two weeks. You can also use Twitter s Advanced Search page ( to create more sophisticated, specific searches. Ethical Concerns for Lawyers Conducting Social Media Research Using social networking sites to conduct background and investigative research on opposing parties, counsel, expert witnesses, jurors, and others has the potential of ensnaring attorneys in ethical traps. Whether or not an attorney crosses an ethical All rights reserved Page

7 line often depends on how access to the information in the profile being viewed was obtained. There has been much discussion online among legal ethics experts, and at our live seminars, about what sorts of investigative activity is ethical for lawyers to engage in. Despite the fact that more and more attorneys and judges are already mining the wealth of information contained in social networking profiles, very few bar associations have weighed in on these questions. As of this writing, there are six ethics opinions that deal directly with the issue of attorney research in social networking profiles. Five are from county or city bar associations. Only one is from a state bar association. None is from Missouri. In reverse chronological order, they are: New York City Bar Association Formal Ethics Opinion New York County Lawyer's Association Formal Ethics Opinion 743 San Diego County Bar Association Ethics Opinion New York City Bar Association Formal Ethics Opinion New York State Bar Ethics Opinion #843 Philadelphia Bar Association Ethics Opinion Links to all six opinions can be found at It's important to note that these opinions are specific to the jurisdictions from which they originate. Furthermore, not all of these bar associations are in agreement. Be sure to check the ethics opinions in any jurisdictions in which you are licensed to practice law. Counseling Clients About Their Use of Social Media Since background research through social media profiles has become more common for lawyers on both sides of an action, it is logical for lawyers to want to counsel their clients about the contents of the client s profiles. However, lawyers All rights reserved Page

8 should avoid telling their clients to scrub, sanitize, or otherwise clean up their profiles due to the potential ramifications of such actions. In March 2009, Virginia attorney Matt Murray received a discovery request for contents of the Facebook profile of Isaiah Lester, the firm s client in a wrongful death suit. Murray apparently instructed his paralegal to contact Lester to clean up his Facebook profile to remove photos Murray thought would make Lester appear unsympathetic to a jury stating, we don t want blowups of this stuff at trial, the paralegal said in a deposition. She sent an to Lester with that message the next day. According to the court order, Murray created a scheme to take down or deactivate Lester's Facebook page and to respond by stating that Lester had no Facebook page as of the date the response was signed. Courts generally take a dim view of destruction or spoliation of evidence. In Lester v Allied Concrete, CL , the court imposed $722,000 in sanctions against Murray and his client for their actions. The bulk of those sanctions ($542,000) were ordered to be paid by Murray himself. Murray also, reportedly, surrendered his license to practice law. Lester is one of the cases we have collected at Conclusion Social media isn t just for social uses any more. Lawyers can put the information found in these profiles to use to benefit their clients or gather information on topics that interest All rights reserved Page

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