Several years ago, I wrote the blog “Three Tips for Preserving Social Media Evidence.” Since this 2019 post, I think it is safe to say that the prevalence of social media evidence in civil and criminal proceedings has grown. And the responsibility of lawyers to collect—and assist their clients with preserving—such electronically stored information (ESI) remains.
Below are several updated tips for lawyers to effectively collect and preserve social media evidence while adhering to ethical guidelines and maximizing the evidence’s potential impact in the courtroom.
Understand the ethical considerations
As legal professionals, it is imperative to uphold the ethical standards of confidentiality and honesty when collecting social media evidence. Failure to do so may result in a range of unwanted consequences from the exclusion of evidence to disciplinary action.
Lawyers have an ethical duty under Illinois Rule of Professional Conduct (ILRPC) 1.6 to maintain client confidences and protect sensitive client information.
This fundamental obligation also applies to client information found in social media accounts. Lawyers should take care not to reveal any privileged or confidential client information discovered through social media without the client’s informed consent.
Additionally, lawyers who engage in deceit or dishonest practices to gain access to private social media information could violate ILRPC 8.4. Acts such as creating a fake profile to connect with the opposing party to acquire information, while potentially allowed by law enforcement, are ethical violations for lawyers. Likewise, having an assistant or investigator do the same does not diminish the violation under ILRPC 5.3.
Better than a screenshot
With the average user in the U.S. having seven social media accounts, legal professionals are faced with a wide variety of different collection strategies and company policies when attempting to access and preserve social media evidence. Additionally, courts require direct or circumstantial proof of authentication of the evidence, especially considering the ease of fabricating social media evidence.
For example, in People v. Kent, 2017 IL App (2d) 140917, the court found a Facebook post was improperly admitted because the only evidence of authentication was the defendant’s nickname and a photograph allegedly resembling the defendant. The defendant did not admit to creating the Facebook profile or authoring the post, and there was no testimony suggesting the defendant was affiliated with its creation. Id., ¶ 119. More proof was necessary.
A screenshot or static photo only tells part of the story. When collecting social media evidence, lawyers should make every effort to preserve the metadata associated with the content. Metadata, such as timestamps, geolocation, historical edits, and user information, can be critical in establishing the authenticity and integrity of the evidence.
Therefore, three alternatives to a static screenshot are:
- WebARChive (WARC) format – Similar to the method used for saving webpages on the Internet Archive Wayback Machine, WARC files aggregate the digital resources of the webpage at a point in time. Various online tools and browser extensions can capture WARC format files.
- Screen recording – There are several ways to capture a screen recording via Windows or Mac applications. There are also web browser extensions and third-party applications for recording browser content or screen displays, which may be an efficient option if used often.
- Save to PDF – While not much different than using a screenshot, saving a webpage displaying the social media you want to capture creates a better record including the date and web address at the top or bottom of the PDF, depending on the settings. Open the print menu or press Ctrl+P and select “Print to PDF” or “Save as PDF.” Check the Print Preview to confirm it is saving the web address, date, and even time if possible.
After saving the PDF, it would be wise to lock it from editing to preserve the contents of the document from being modified. In Adobe Acrobat you may use Tools –> Protect to secure the PDF file with a password or even encrypt it.
Advanced options for ensuring authenticity
The tools and methods above rely on the user capturing the social media evidence while properly documenting the time, date, and manner of collection and tracing its chain of custody, to ensure authenticity.
On the other hand, eDiscovery consultants or other IT experts may help manage more advanced methods of capturing or collecting relevant information and metadata.
For example, a trained professional may collect evidence through programs that leverage a social media provider’s application programming interface (API) to pull ESI content from the social media platforms. There may be pros and cons to this method, especially when a judge or jury might better understand a saved PDF than an API-driven output.
Finally, there are preservation applications specifically designed to capture social media and web material evidence. These tools can collect posts, messages, comment threads, embedded pictures and videos, and more for a specific time period.
Additionally, these tools can help lawyers prepare such ESI for easier admission and publication as evidence in court as compared to the “DIY methods” above.
Lawyers can expect ongoing challenges around social media evidence as social media and messaging platforms continue to evolve.
By understanding the ethical implications and staying on top of technological resources for collecting and preserving ESI, lawyers can harness the power of social media evidence to bolster their cases and present compelling arguments in the courtroom.
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