With a proper foundation according to the Rules of Evidence, social media posts are evidence in both civil and criminal cases. The Rules harken back to old forms of communication like paper letters exchanged or mailed through the various postal services. What a person might have written to a co-conspirator on paper is no different than posting a comment or longer thought-piece on social media. The real differences between the older forms and the new forms are photos and videos, which present their own types of information and evidence in a nearly permanent format. For a few examples of how social media posts can be used — both for and against — a litigant, see this Forbes media article.
So, how do attorneys litigating a case find your social media? First, as noted in the Forbes article, copying and using publicly posted social media as evidence is perfectly legal. It does not “count” as some form of spying or illegal surveillance. If you have posted something publicly, then it is “public” for the lawyers and judges, too. The methods here mostly involve internet search engines looking for social media posts linked to the names of those involved in the litigation. Quite a bit of information is obtained using such simple search methods. There is also more specialized legal industry software that can be used to optimize internet searching.
Second, the same rules about postings being “public” apply even if a person has posted something from an anonymous account. If it is posted publicly, then it is “fair game” for use as evidence.
Now, with anonymous posting, the “trick” is to get beyond the anonymity. For lawyers engaged in litigation, that is relatively easy. Part of litigation involves a process called “discovery.” This is allowed by the Rules of Evidence and involves, among other things, issuing written questions from one party to the other and taking oral testimony. One — now-common — set of written questions involves asking for a list of social media accounts, INCLUDING anonymous accounts. Unless the judge blocks such questions, the answers must be forthcoming and the answers must be truthful.
Once anonymous accounts are identified, then there is another round of internet searching. Again, a great deal of information will be uncovered by such search methods. Further, once social media accounts are identified, after requests from one party or another, the judge can order the litigant to disclose the full content of the social media account, including copies of social media postings that are set in “private mode,” that are no longer “public,” or that may have been deleted. For what it is worth, this is also the method for obtaining copies of emails, DMs, text messages, and the contents of smartphones and to get copies of non-public paper correspondence and personal notes.
The process of discovery will also invariably ask for photos and videos relevant to the issues in the case. These requests will be broad enough to cover photos and videos that may be located in social media accounts.
Deleted social media posts are more difficult to uncover, but attempts can be made through the hiring of experts who might have the training and experience to recover what has supposedly been deleted. Such deleted postings might still be resident on hard drives, portable drives, and other devices if not deleted with the proper software.
Contact the Social Media Attorneys at Revision Legal For more information, contact the experienced Social Media Lawyers at Revision Legal. You can contact us through the form on this page or call (855) 473-8474.
