When defense lawyers in a disability investigation presented digital evidence from an injured woman’s Facebook profile, the judge found that the claimant’s description of her pain was at odds with the evidence. The pictures showed her whitewater rafting, golfing and rock climbing. As a result, she lost the case.

Social media evidence is now common in investigations. However, methods to access and record it ethically and legally aren’t clear. In addition, how you access digital evidence and what information you can use each has its own rules. Therefore, it's important to keep abreast of these rules as they develop to ensure you don't waste key evidence.

Gathering Digital Evidence

Collecting digital evidence from social media sites can be challenging for several reasons. Firstly, social media is constantly changing. Users can easily update and delete material that could be evidence in a case. Secondly, many users set their privacy settings so that only their friends can see their profile information. This brings up several other issues of legal access and privacy rights.

There are relatively few widely accepted methods for gathering digital evidence from social media sites, says attorney Benjamin Wright, an e-discovery expert, author and instructor at SANS Institute. Many investigators just print what's on their screen and show it to the judge or administrator, he says.

Tools for Digital Evidence Gathering

“There are some very sophisticated tools, typically used by police for recording what a police officer sees at a particular time... information about the IP address where the information is coming from at that time,” says Wright. A tool called Screencast, for example, records in real time what an investigator sees.

Considering a Warrant

“If you are conducting a law enforcement type of action... you may be wise to get a search warrant or some other kind of court approval for the type of investigation that you are conducting,” says Wright. There is a general recognition that if information is publicly available an investigator has the right to view and record it. "That is a general idea that has not been widely tested in courts.”

Access and Privacy

Even when information is publicly available, though, there can be legal issues related to its discovery, warns Wright. These include copyright violations and privacy violations based on statements they may have written on their social media pages.

“So there could be this argument that says there’s an element of privacy just based on the words and they way the words are expressed on that privacy page,” says Wright. Topics related to violations of privacy and copyright have not been well litigated or even understood, says Wright. “We are in a brand new world here and there’s very little in the way of authoritative guidance on this.”

Hundreds of millions of people actively use social media, so it's a powerful tool in the search for truth. Be proactive in collecting this digital evidence and stay abreast of the case law as it develops to ensure every advantage in getting the truth heard.