No one can argue that social media has permeated every aspect of our society. Everyone from your youngest friend to your oldest relative communicates on one form of social media or another. As of 2017 a huge 81% of people had a social media profile of one kind or another. With numbers that huge it’s a safe assumption that the parties involved in a divorce will have one or even all of these types of accounts. Experienced family lawyers will tell you the consequence is that documenting and presenting social media evidence is now a critical part of family law proceedings.
Ultimately, the statements on social media are often a doubled-edged sword: they are typically emotional, sometimes rash. One the one hand, social media is uniquely set up to be electronically preserved since it exists in a digital format already. What is said, posted, or streamed on social media now becomes a prime opportunity to illustrate negative behavior about an opposing party. Here’s an example: if one party claims that the other has a substance abuse issue, a Facebook album titled “Trashed Tuesdays” full of documented drunken exploits could certainly be useful evidence.
People are people, as the saying goes, and it’s often difficult, if not impossible, to get them to stop “knee-jerk” reactions to a baiting Facebook post, or to stop posting damaging or derogatory thoughts about the opposing party via social media.
Here is a family law version of the Miranda rights that will prove useful in a divorce (created by Greg Golden):
You have the right to remain silent – Anything you type can and will be used against you in your divorce.
You have the right to exercise “common sense” – good decisions are rarely, if ever, are the result of an emotionally-driven response. Also, the other party may be baiting you into such a response so that your perceived irrationality will be brought up in court, to your detriment.
You have the right to discuss an appropriate post/twee/message with your attorney before you let you emotions get the better of you and you send it – if you cannot talk to your attorney before sending such a post/tweet/message, then think about whether your attorney would approve of such a communication.
Do you understand the rights that I have just described? – With these rights in mind, do you still wish to send that post/tweet/message?
If you’re investigating another party in a divorce, what types of social media sites and applications should you search? Research shows that there are over eleven different applications that have over ten million monthly users. But, for the sake of clarity and for this example we’ll narrow the applications to: Facebook, Instagram, Twitter and Snapchat or even Text Messages.
It’s important to understand that different sites and user profiles have different levels of security and different levels of “publicity”. Knowing this make the point clear that discovery should be conducted as early as possible, even before a case is filed, if you think the opposing party may change their privacy settings and effectively block you from conducting your investigation.
For Facebook has several integrated applications: messenger, a mobile version of the website (an application), a desktop version (also an application), and version of the site access via a web browser. For conducting this investigation the most preferable version is to use the desktop application. From there you can print or save as a PDF every page you where you find interesting information. On Facebook consider exploring: Family and Relationships, Photo Albums, and Tags.
Within Facebook, you can also choose the user profile and click “More”. From there you can explore a variety of items. One of these options are “check-ins” which is a tag of a specific location done by the person posting the photo or post. Also be aware that posts that originated in Instagram will carry over location information.
Other interesting parts of the “More” drop-down might be: Groups (e.g.“Married Moms Looking to Party”), Notes (more prevalent a few years ago but Facebook retains archived copies of these), Likes (of pages, public figures, or organizations that the user endorsed via a “like).
Another option is to explore the person’s friends. There is a “search friends” tool in the top right and can be used to link witnesses and other relationships). Instead of searching through thousands of friends you can use the search function to search for names to see if there is a relationship.
Facebook posts can be search by specific month, year, or location. Also, depending on the user’s privacy settings, a user’s posts within a specific group can be searched.
A useful hack is to see an overview of two individuals’ friendship, including when they first became Facebook friends, what mutual friends they share, and other shared connection points (e.g., shared employers, schools, etc.). To see this information type: www.facebook.com/friendship/A/B and substitute A and B for the name URL of the people you’re investigating.
Instagram
Instagram is a social media platform that is more limited than Facebook. With this tool users exclusively post pictures and videos, although some “Posts” can consist of text via an image, commonly known as a “Meme”.
On this platform connections are called “followers” rather than “friends” (as is used on Facebook). Unlike Facebook, Instagram is best navigated via the Instagram application on a mobile device such as a smart phone or tablet. To use the app you must have an Instagram account. Once you open the app you can see posts from accounts that you follow and you can use the search features to find other accounts.
Depending on the user’s privacy settings you might be able to access their account without “following” them (it’s never advisable to newly “follow” an individual who is on the opposite side of a divorce. This could tip your hand and allow the other party to know that you are investigating and also that a divorce filing may be imminent).
Each individual post is date stamped and has an image location tag, but beware, location tags are selected by the user and can be unreliable, and the may not correlate with the date stamp because they can be added or edited later. There are commonly hashtags associated with an Instagram post that will contain information about the individuals state of mind, crowd they are with, or the activity reflected in the picture. Hashtags are also active links that will show other people posts that have used the same hashtag.
More than just a casual glance at a user’s account is needed because some multi-photo posts aren’t contained in the summary grid view of a user. Circled dots below an image will let you know that the post contains more than the first picture and that you should swipe the photo left to see the additional images.
On the user’s profile a circled icon will show all posts where the user has been tagged by other users. A “tag” on Instagram is the same concept as discussed with Facebook and this view of a user’s activity may prove very useful in an investigation because the profile owner did not necessarily post these photos and therefore the tag may prove less filtered and less edited (ie;, less discreet).
Finally, from the user’s profile you can tap “followers” or “following” to see the list of people that the profile owner is either following or is being followed by. The search function will allow you to search for specific people in followers and in the “following” categories. Screen names may be used instead of legal names so its important to think about what names to search for.
Twitter is less interactive or personal than either Facebook or Instagram. Although there has been a decline in users the last few years, it still remains a top social media application and used by millions of people. Therefore it may contain a large amount of relevant data.
In a general sense, Twitter more news/current event based. However, every user utilizes each platform differently; thus a particular user may include a lot of personal content on their Twitter account. On Twitter, a user can post text, photos, and videos. Users can also comment on other people’s posts, like the posts, or re-tweet a post that that it appears as part of his own account’s stream of Tweets.
Twitter’s mobile application is fairly simple and easy to use, but the desktop version is the preferred method for doing an investigation and capture electronic evidence you want to preserve and may eventually present in court.
From the user’s profile you can explore all the tweets the person has sent, who is following that person, and who that person chooses to follow. Depending on privacy settings you can also collect basic profile settings.
Similar to the other social media platforms Twitter has search functionality that will allow you to search for posts, users who have been tagged, and tags where the subject of your investigation has been tagged.
Everything on Twitter is date-stamped and much of what you can, and cannot, see is based on a user’s privacy settings. Again, it’s never recommended that you follow someone who you may be investigating.
Snapchat
Snapchat can only be accessed via the Snapchat application on a mobile device, and affords only very limited opportunities for investigators to capture and preserve information. The reasons is that Snapchat only allows the transmission of a photo or message to remain for a set amount of time, after which it is permanently deleted. This makes is difficult to investigate because evidence is only available for a short period.
Snapchat photos can be captured by taking a screen shot on the mobile device, but to accomplish this you must act quickly AND the sender will be notified that the screen shot has been taken. So, this method of investigation may only be useful when you have a recipient willing to receive and document images.
There are also “story photos” on this platform but these are not private, they are public and may not provide the type of evidence you are looking for.
If you’re lucky enough to be able to examine a snap chat account on the subject’s phone, there can be valuable information. For example, users have “best friends” that indicate who the user communicates with most frequently. Snapchat has an emoji system to indicate differing levels of friendship and frequency. It’s also important if you have live access to a Snapchat user’s account that you look at “best friends” because the user has the ability to assign psyeudonyms to their “best friends”. Clicking on one of the best friends you will the actual screen name of the person, so instead of a best friend being named “Sarah” their real name could be “BigHunkYouLove”.
One other item not to forget within Snapchat is the “memories” functionality to see whether or not the user saved any damaging photos that they may have sent to others. Of course, this is only available if you have live access to the account.
Coming Into Court
It’s nice to be able to investigate an opposing party using social media, but what is required to preserve the evidence and eventually have it admitted in court?
One of the easiest ways is to request the information from the opposing party during a process called “Discovery”. This is a part of the case where opposing sides are required by the court to produce documents and digital evidence (including social media data). Preliminary research conducted according to the tips provided earlier in this document can prepare you so you know exactly what to ask for from the opposing side.
One part of “Discovery” are tools called Interrogatories (official questions) and request for production of documents. This can be particularly helpful with Facebook since the site provides for a complete download of a user’s history. An example of such a request might be:
“copies of all your online or internet personalized sites or blogs (e.g. Facebook, Twitter, Instagram, Match.com, etc.) including a download of your Facebook data, if applicable (available through “Account Settings,” and then “download a copy of your Facebook data.”)”
Depositions (where an opposing party sits down to answer questions under oath and the conversation is captured word for word) are also a good place to ask questions about social media accounts. This forum is one that is more flexible with the types and amount of questions that can be answered, as well as provides you an opportunity to explore what the answers are before deciding whether or not they should be asked in court.
What is an Account is Closed or Deleted?
As a preliminary, proactive step is to place the other side on notice that you believe electronic evidence may be critical to your case and should not be deleted. On Facebook, for example, once a page is deleted, after a few days it is gone forever, and Facebook will only be able to recover it for up to 90 days.
Twitter is even worse. A deactivated Twitter account can only be recovered in a 30 day window after it is deactivated. So, it is critical to give notice to the other side that you intend on requesting this information, even so far as specifying which social media accounts you will be seeking. If the other party fails to preserve the accounts and the data within them, they will be liable in court for sanctions for “spoiling” evidence.
One final note on Facebook. There is a substantial difference between “deactivating” an account and “deleting” an account. See Facebook’s terms of use for a description of the difference.
How Do I Authenticate Social Media Evidence in Court?
Authenticating evidence is simply this: the processes in which potentially admissible documents and other tangible items are proven to be genuine, and not counterfeit.
Authenticating this type of evidence is one of the most challenging aspects of introducing social media data in court. Anyone case create a Facebook or Twitter account and “pretend” to be another person, and we all know the powers of Photoshop to create authentic-looking documents.
While it may sound complicated, the process behind authentication is simple and available to anyone. All you need to do is provide evidence that the document is what you say it is. Here are some tips:
Testimony of a witness with knowledge: Can someone vouch that the document is what you say it is?
Comparison by an expert witness or the court: A comparison with an authenticated version by and expert or the court.
Distinctive characteristics and the like: The appearance, contents, substance, internal patterns, or other distinctive characteristics of the items, taken together with all other circumstances.
Do not overthink authentication, you don’t have to prove authenticity to an absolute certainty, the court just wants to see some evidence that the item is what you say it is. Here’s an example: a witness testifies that the picture and user name of an Instagram account matched the opposing party. The court, in this case, held that this was enough “authentication”.
Proof of authentication can be circumstantial evidence as well. And there are other means of authentication you can pursue before you get into court, such as: a request to admit, a request for production of documents, an interrogatory, a deposition, by stipulation, or even a motion in limine.
Final Practical Tips
These tips are focused on the types of information the owner of an account can generate. The first is the Facebook activity log. This is not as easy to produce, but can be good evidence of a user’s Facebook activity and habits over time. This could be useful in a situation where a person claims they did not post something but the activity log shows that the individual has posted similar items, with similar content, with a similar “tone” before.
The most useful Facebook items is a direct download of Facebook date. Some of the information available is: Active sessions, hidden from news feed, IP addresses, logins, logouts, messages, removed friends, account status history. Be sure to pay attention to the “messages” folder, these are fully documented conversations that date back from the very beginning of the user’s account.
Twitter offers a similar “data history” that can be searched but the best way to review the data is directly through the user’s Twitter account.
