Does social media evidence hold up in a court of law? You bet it can. Social media sites such as Facebook or Instagram will often cite the Stored Communications Act if they are subpoenaed to turn over records (although they will cooperate with authorities in criminal cases). Historically, the Stored Communications Act has been overruled if the request is deemed relevant and does not overreach, so it has limited use to social media companies. (The Stored Communications Act was enacted as Title II of the Electronic Communications Privacy Act of 1986 and addressed disclosing of “stored wire and electronic communications and transactional records” held by third-party internet service providers.)
Courts are increasingly allowing social media evidence to be entered during the discovery phase of a case. Data from texts, emails, photos, tweets, resume information (from sites such as LinkedIn), and even Snapchat and Instagram Stories with their disappearing act may be used by attorneys in a court of law. Social media-based evidence could be the next big thing, although individuals are rarely informed about this little fact and often do not pay attention to what they are posting on their Facebook or Twitter accounts.
According to Jennifer Ellis, a legal ethics attorney with the Philadelphia law firm of Lowenthal & Abrams, PC, information found on social media must be “relevant, authentic, and more probative than prejudicial.” (Ellis has contributed greatly to the American Bar Association’s Continuing Legal Education (ABA CLE) program on this subject.) The main case that explores this subject is Trail v. Lesko, which centers around accessing a Facebook account during the discovery phase. Unlimited access to someone’s social media account is not allowable, but according to Judge R. Stanton Wettick’s decision in the Trail v. Lesko case, if there is “sufficient likelihood” that there is relevant information contained in a social media account, then there is enough cause to grant access to it.
(As a sidebar, privacy cannot be a reason to deny access to social media evidence. Judges have maintained a consistent opinion on this – if a person voluntarily shares his or her information on social media, they cannot have a reasonable expectation of privacy. You’ve been warned.)
What does this mean for the PI world? It is still illegal for a private investigator to break in to a person’s home or electronic device to obtain social media evidence through Facebook, Twitter, Instagram, or the like (same with phone records). Illegally accessing online content can be considered a felony and often a violation of state law according to the Electronic Communications Privacy Act. PIs will also be under fire if they pretend to be someone else online in order to gain that information. Private investigators will always be more focused on getting actual video evidence of wrongdoing.
New York private investigator Darrin Giglio says, “In certain cases, text or paper evidence does not usually replace actual surveillance evidence which can validate and strengthen these other types of evidence which alone may be unconvincing.” This is mainly because there is a big difference between what someone SAYS and what they actually DO. PIs operate in the “DO” world when it comes to investigating an individual, so social media may only play a minor role in obtaining actual evidence for clients.