A growing trend: Social media as legal evidence
by Chris Wheelock | Michigan Business Review Wednesday July 29, 2009, 12:30 PM
The Internet has evolved from casual browsing of shopping sites and one-way information portals to the current craving for interaction and a more personal connection.
Today, more people are using social networking sites like LinkedIn, Facebook, MySpace and Twitter than ever before.
In a report on the influence of social media sites released earlier this year, the Nielsen Company, a media research firm, found that not only are more people using the Internet and for longer periods of time, users are spending the most time on social networking sites and on video portals such as YouTube.
According to Nielsen, social network use in February exceeded Web-based e-mail use for the first time (in monthly visits).
As Internet use has exploded, so has the legal use of information mined from the Web and social media sites.
Investigators, divorce attorneys, prosecutors and employers are finding information, photos and videos online which can become evidence in civil and criminal cases or simply become a reason not to hire someone.
In 2006, Congress mandated changes to the Federal Rules of Civil Procedure, expanding the acceptance of electronically stored information, or ESI, as evidence.
Internet security experts say many users give little thought to what they post online or include in their online profiles. It's a decision that can lead to getting fired, reprimanded or even arrested for what's been posted.
That's where Daniel Estrada, president of D.C. Estrada of Grand Rapids, has built a niche for himself. His firm specializes in assessing the electronic information needs and risks of companies, managing electronic evidence when a company is sued and helping companies large and small establish policies for handling electronic data.
"It was a one-way medium in the early days," Estrada said. "It's now a more dynamic medium, where you have people creating content and adding content to the Web -- content that is available for anybody else to see."
Therein lies the problem, because much of what gets posted becomes a permanent record somewhere. Facebook, for example, retains all your information even if you close your account.
Photos contain a lot of embedded information that most users aren't aware of: GPS coordinates showing where the photo was taken and when, even the camera's serial number. Estrada says the embedded information can be read out of that photo and used as evidence.
The business world has also discovered social networking sites, which can be a powerful marketing tool. They can also become a receptacle for complaints about bad customer service or employee comments about the company -- two good reasons to make managing your online reputation a priority.
Business owners are struggling with how to come to terms with all this.
Estrada notes that when a business embraces social media as a marketing tool, some common issues crop up, including the loss of employee productivity and the important distinction of whether an employee is representing the company or themselves when they use social networking sites at work.
"That's where having a documented policy, a clear and concise policy that outlines acceptable use of social media tools, is really important," Estrada said.
Companies use social networking sites as part of the hiring process, including asking job candidates to log in to their Facebook account during an interview.
Estrada says employers are looking for information about a person's character, their social habits or anything that speaks to a person's integrity.
"Don't put anything on a social network page, blog, Web site or in an e-mail," he said, "that you don't want printed on the front page of the newspaper."
Estrada and others recommend businesses think through what kind of policy they want to put in place when it comes to social media sites. Managers should know the technology and what kinds of tools are being used by their organization, considerations that are evolving.
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