Social Media | iOctopus Consulting

I studied just enough criminal law to graduate from law school and pass two bar exams, so the law of search warrants is a bit exotic for me: an area where strange beasts lurk. This year’s discussions at the Sedona Conference annual meeting and Georgetown Advanced eDiscovery Institute were the most I’d thought about search warrants in years. The themes were familiar however: how do we analogize new forms of evidence to familiar ones? The answer is, use your imagination, don’t let the newness freak you out, and you can get there from here.

Pretty much every area of the common law in the United States has barely made it to the age of the automobile. Fourth Amendment case law is no different. That isn’t to say we have no case law on search warrants executed for digital technology. Far from it, one Judge at said that few of the search warrants he sees anymore actually look for something tangible. But even the judges who are comfortable in this area still struggle with how to apply the doctrine of “unreasonable search and seizure” to the vast sea of social media information and the dense knot of personal, professional and public information available on portable devices.

As with discovery requests, judges expect specificity with warrants. One judge said “I’m not going to tell you what to put in your warrant, just that I won’t sign one that doesn’t comply with the Fourth Amendment.” Practically speaking, this means that a warrant should not say “all social media,” and whether it can say “all Facebook data,” requires an argument about scope. Search warrants are by their nature invasive, so in the case of a laptop or personal device, how much intrusion is too much? If you’re looking for financial records, can you look at someone’s personal photos? (Probably). If law enforcement has a warrant to search a file cabinet, they can still look in the manila folder marked “photos” for the tax records. But a warrant to search a file cabinet at the office doesn’t necessary extend to the bathroom medicine cabinet at home. Does a mobile device that contains both personal and professional information mean the person now has their filing cabinet in the bathroom? The judges’ favorite answer is “it depends.” Another judge also pointed out that, if one is looking for an elephant, the warrant permits you to search every place an elephant might be found, but you can’t use it as a license to go snooping in cookie tins. It is hard to say in the age of multi-gigabyte personal devices what is a digital “cookie tin,” but parties litigating search warrants should understand which parts of a defendant’s devices and personal data sources ranging from Dropbox to Twitter are linked together and how the defendant uses each of them.

The Georgetown panelists, judges and others, also discussed new technology and other areas of law such the Wiretap Act and the Fifth Amendment privilege against self-incrimination. For example, Google Glass permits non-consensual recording of others by the wearer. Is that a wiretap? One judge says, “No. You look exceedingly unattractive, but you aren’t intercepting a wire communication, so there is no crime.” Where parties have to provide a password to locked or encrypted media, does forcing a person to provide their password trigger Fifth Amendment protection? Generally the answer is no, because it is analogous to surrender the physical key to safe deposit box. Where biometric data (voice print, finger print etc) is necessary to access or search, the judges seem undecided as to whether a fingerprint lock on an iPhone is more like “testimony” thus invoking the privilege, or more like a key (or a hair sample).

This isn’t going to get any easier, but for now the consensus seems to be that the laws themselves still do the job. The concepts of “reasonable” and “probable cause” like “relevance” and “burden” in the civil context are broad and not technology specific. However, the rapid evolution of the law does place a greater burden on judges and lawyers to truly understand the technology and how it used in order to make accurate analogies and sound arguments.

Discovery of social media can be one of those areas that is exciting in theory, but distressing in real life. The panel on social media at Georgetown Advanced eDiscovery Institute last month covered a wide range of issues including privacy (or lack thereof), admissibility, spoliation and the applicability of the Federal Rules to new technology. As panelist Adam Cohen remarked, “Social media is all your eDiscovery nightmares rolled into one.” Social media is voluminous, cloud-based, structured in a non-linear fashion, rapidly evolving and diverse. But the rules that were designed for paper and have been applied to email still govern tweets and reddits.

Neither relevance nor admissibility requirements disappear when the requestor says, “because Social Media!” Courts and lawyers are still struggling with basic, easily avoided issues like admissibility. For example, an unauthenticated screen shot of a social media post went to the Second Circuit recently. Offering a screen capture without step by step authentication is roughly the equivalent of photographing an email on someone’s computer screen and offering the photo: you might resort to it if you could document when and how you did it, and that it was the person’s computer and so forth, but wouldn’t it be easier to get the document by an agreed procedure and make a bates-stamped photocopy? Likewise, relevance still means the same thing as it does any other time, so a request for “all social media” without an argument why “all” of it is relevant as opposed to a targeted swath of it is no different than any other fishing expedition. Panel moderator Martin Tully pointed out that the Civil Rules don’t allow one to get open ended discovery solely to rummage about in a party’s underwear drawer.

Discussion of social media usually includes a discussion of “the death of privacy”. Social media has changed the perception of what is and is not private because of how people use it. Case law has had to find the right analogies to existing communication forms, but again the rules developed for paper and oral communication still fit. Social media offers many different privacy settings and is not inherently different from email for purposes of relevance. A social media post made available for viewing by 300 friends is less private than a direct message, but a direct message is no less discoverable than an email. A twitter message may be very public, like shouting in a crowded room, but may be completely irrelevant if one never shouts about content relevant to the litigation.

The good news is eDiscovery providers that specialize in social media are working to develop collection technologies that aggregate social media content and allow it to be tagged and reviewed in a fashion that roughly corresponds to its presentation in the user interface. For a practitioner part of the challenge is effectively analogizing social media evidence to other kinds of evidence. But once a litigator finds the right argument, Rules of Evidence and Civil Procedure still apply and are actually quite effective.