Investigating Facebook: The Ethics of Using Social Networking Websites in Legal Investigations
Witnov, Shane, Santa Clara Computer & High Technology Law Journal
An 18-year-old witness, whose testimony is helpful to the adverse party, is not a party or represented by a lawyer. During her deposition, she revealed she has a Facebook account. The events she testified about took place at a party and you have reason to suspect her sobriety at the party and the accuracy of her testimony during the deposition. You suspect that the witness and her friends posted photographs of the party or commented on the party on their Facebook profiles. This evidence could contradict the witness or provide valuable evidence of what actually happened that night. Unfortunately, her photographs and comments are private so you cannot access them without adding her as a "friend." The witness has hundreds of friends and you think she might accept a friend request from just about anyone. Would it violate legal ethics for your summer intern, who is closer to her age, to make a friend request?
The answer is unclear. In New York City, such friending would probably be ethical; in Philadelphia, it probably is not; everywhere else is undecided. (1) However, as more lawyers face this question every day, a clear answer is essential.
A lawyer who uses a social networking website, such as Facebook or MySpace, to collect information about an opposing party or witness may be violating ethical rules. Time and money constraints frequently incentivize lawyers to use fast informal processes to collect information. In these cases, social networking websites can be a lawyer's best friend. With a quick search and perhaps a friend request, a lawyer can gain access to detailed personal information that could make or break a case. Nevertheless, the friend request may be unethical.
Lawyers are using social networks frequently as part of basic due diligence and information collection. In some firms, a search of social networks is the first task a lawyer performs after acquiring a new client. (2) A 2010 poll found 81% of matrimonial lawyers have used evidence from social networks. (3) Regardless of how lawyers feel about social networks, they contain too much valuable information to ignore. However, informally obtaining that information, while generally easy, is fraught with ethical pitfalls.
Social networking websites ("social networks") like Facebook are massive databases of self-reported information. They contain diverse types of information, ranging from pictures of pets to evidence of fraud to the details of criminal conspiracies. These websites are heavily used and still growing. (4) Nearly 70% of all Americans age twelve to twenty-nine have profiles on social networking websites. (5) The majority of these profiles are on Facebook, (6) which, as of February 2011, reported that the average user shared 90 pieces of content, such as photographs, links, or messages, a month. (7) All together, Facebook users share more than 30 billion pieces of total content a month. (8) There is substantial growth in the number of online profiles, (9) making social networks invaluable research tools for learning about almost anyone's actions, interests, and thoughts.
Lawyers have used social networks in a variety of legal cases, with serious implications. Murder suspects have been identified based upon MySpace photos. (10) Gangs have left evidence of criminal activity on social networks. (11) One particular individual had charges dismissed against him by showing he was logged into Facebook at the time the crime took place. (12) Profiles have been used in assessing a person's character during sentencing. (13) In child custody battles, information on social networks has been used to demonstrate a parent's unfitness to care for children. (14) State and federal tax collectors even use social network information to find tax deadbeats. (15)
Some information on social networks is publicly available, but most of it is restricted. (16) The simplest way of obtaining access to a person's restricted information is to become "friends" on the social network, which usually grants access to more privileged information. …