What to Tell Clients About Facebook and Other Social Media Sites - Articles

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Posted by: on Apr 27, 2011

Journal Issue Date: Mar 2011

Journal Name: March 2011 - Vol. 47, No. 3

Facebook and similar social network sites have hundreds of millions of active users around the world. It is estimated that some 40 percent of the United States population has a Facebook account. In light of the prevalence of Facebook it is imperative that we, as attorneys, address this phenomenon with our clients in both civil and criminal cases because it can have profound consequences in litigation.

The main purpose of Facebook is to have relationships online with multiple people in a way that easily facilitates the exchange of information, pictures, and messages. Although Facebook was recently valued at $50 billion, the service is free to use because it is able to raise substantial revenue through advertisement and investment.

Most websites consist of static pages created by the person or company that owns the site to be passively viewed by readers. By contrast, a Facebook page is highly interactive and allows users to post just about anything on their own page or even their friends’ pages. Facebook itself does not actually produce any content but simply provides an easy mechanism for its users to share content amongst themselves.

Facebook has several security features and provides extensive customization options to limit access to only “friends” or even chosen subsets of “friends.” However, because Facebook thrives from extensive public sharing of data, most information is defaulted to be shared to “everyone” and, even worse, the custom restrictions are notoriously difficult to find and utilize.

The bulk of Facebook users have no idea how much of their information can be viewed by anyone on the Internet nor how easily their accounts can be compromised. Even Facebook founder Mark Zuckerberg’s account was recently hacked.

Most people feel a false sense of security and anonymity from the vastness of the internet and believe that their postings will somehow remain private even though they are on the World Wide Web. Although it is highly unlikely that someone would accidentally stumble upon any given page, it is quite likely that a quick Google search for the person’s name will find a person’s Facebook page directly. Try it: type in “Facebook Phil Bredesen” and there will be the former governor’s Facebook site.

Since many of your clients have accounts on Facebook or other social networking sites, addressing this topic should be high on your agenda in the first client interview. We always check the client’s page even before interviewing them to better assess their case and personality.

Why is this so important? The reason is that many people post just about everything on their Facebook page. If a person has had a car wreck, for example, they often want everybody to know about how horrible it was and what happened, complete with pictures and detailed descriptions.

As we are writing this, we are looking at a Facebook page on which an individual explained to her friends how she had an accident that “totaled” her car on the way home from a bar. Since we can see this online, so can the insurance adjuster. So can the lawyer for the person representing the other driver. So can the District Attorney who may be prosecuting this woman for driving under the influence. And don’t forget about the media in high-profile cases.

This real-life example is not some rare event. It is now becoming the general rule rather than the exception.

The list of horror stories is endless. Our firm had a client boast on his Facebook about going to Canada to see a rock concert and smoke dope. The client then wondered why he was facing a probation revocation and how the probation officer learned about this international travel and narcotics use.

A recent murder case in Nashville resulted in an acquittal after the state’s “eye witness” posted on her Facebook page that she was not really at the crime scene but was just trying to help out her dead boyfriend by fingering his worst enemy.

Just about every divorce case in our office now involves some information obtained off of the Facebook account from the opposing party. It is a treasure trove of information. People brag about their new lovers, their new cars, and how their spouse will never find out that they are hiding assets.

There is absolutely nothing illegal about the government or an opposing party going on a publically accessible webpage. Even if a person limits their profile to just a limited number of “friends,” it is a simple matter to have one of these “friends” access the site and everything is then an open book. There is no expectation of privacy in such Facebook accounts.

When discussing social networking with a client, the first question should be whether the client has an account on Facebook, Twitter, MySpace, or a similar site. It is appropriate to then immediately access the account in the presence of the client and see what information is publicly available.

Clearly, if there is something inappropriate on the site, the client should immediately remove it. In any event, the attorney should print out the page or capture the screen electronically and record the date because what is on Facebook today may be different tomorrow.

There is also the question of whether you should advise your client to cancel their Facebook account entirely. In addition to dealing with very reluctant clients — especially if they are in the younger generation — there are unsettled questions about whether deactivated accounts are still discoverable, and copies of some information may linger on the Internet even after a profile has been deleted.

In our criminal cases we always have the client immediately deactivate their Facebook profile because in our local jurisdiction the State and Federal prosecutors have long made attempts to access Facebook profiles for all individuals under investigation.

Depending on the nature of the litigation, you may also want to have your client deactivate their Facebook account in civil cases. That is always a difficult decision because occasionally the Facebook account might be a vehicle for favorable information coming to your client and then being passed on to you. While that is certainly a possibility in criminal cases, the dangers in criminal cases are so profound that we always cancel Facebook access.

It should be obvious that if you are concerned about “the other side” seeing your client’s Facebook information, you should be actively seeking out the same from the opposing party. Indeed, Facebook and Google searches should be routine for all adverse parties and witnesses. Some suggest even accessing the Facebook pages of prospective jurors.

We are in no way suggesting “hacking” into somebody’s email account. There are severe civil and criminal penalties associated with such behavior, as was recently discovered by the college student who hacked into Sarah Palin’s email account (and is now in federal prison). However, there is more than enough out there which is readily accessible and you should be aware of these valuable sources of information and how to control them.

Lastly, do not overlook the possibility that even ostensibly secret information may be observed by opposing parties, particularly in domestic relations cases. You should always advise your client to immediately change his or her passwords on personal accounts because of the strong possibility that information could be available to others. While beyond the scope of this article, emails can be accessed or even forwarded to a third site without the recipient being aware that this is occurring. You do not want your sensitive message to your client observed by the opposing party.

Facebook and related social media should be thought of as the traditional private, written diary. Make sure that your client’s electronic diary is private.