Social media has changed the way we communicate and live. It’s an empowering tool for many people worldwide. Social media is also an extraordinary source of evidence. Our digital footprint grows daily with every photo posted, status updated and video shared. These footprints are hard to erase.
The tweet of yesterday may become the exhibit of tomorrow’s litigation. This is especially true in criminal, family, personal injury and employment law. The duty of preserving social media evidence mirrors that of other electronically stored information (ESI). Likewise, that duty to preserve is triggered when a party reasonably foresees that the evidence may be relevant to issues in litigation.
While social media platforms are custodians of ESI, the account holder has control of and access to the evidence. Lawyers may be able to subpoena relevant ESI during litigation. Here are tips for capturing that information before it’s hidden, altered or deleted.
TIP 1: Print the evidence… to start
Timing is vital. When you observe something on social media in real time, capture it immediately. Later I’ll discuss how to dig deeper into that social media evidence using software tools. But for now, just grab what you see before changes occur.
Now, if you’ve ever tried to print a webpage you know that what the printer regurgitates isn’t often what you see on the screen. Photos and ads juxtapose with text to create a preserved smorgasbord of an exhibit. It’s likely social media evidence that’s hardly recognizable to the foundational witness.
However, something is usually better than nothing. Therefore, you may want to use the print method to save your initial findings online. If you must, I offer some recommendations.
- Print to a PDF file (i.e., use the “Print” command [not the “Save As” command] and print the job to a PDF file instead of paper). You can always print to paper from the PDF file later.
- Make sure the date is memorialized on the copy, at the top or bottom of the page.
- Make sure the web address is memorialized on the copy.
TIP 2: Capture a screenshot
A better method of preserving social media evidence is to preserve a screenshot or screen capture. Essentially, you’re using software to take a photo of what’s viewable on the display.
Both Windows and Mac operating systems have built-in tools to capture and save a screenshot. The easiest method is the “Print Screen” (“PrtScn”) key on your keyboard. You may need to press “Alt + Print Screen” or “Fn + Print Screen” or “Windows key + Print Screen” to capture the screen’s image or part of it. I’ve previously written on how to take screenshots on mobile and other devices.
Once you’ve taken the screenshot, your computer’s screen may flicker or it may appear like nothing happened. The image is now saved on your “Clipboard” and ready to be pasted into another medium, like the Microsoft Paint program or a Word document.
It’s worth noting that Microsoft’s OneDrive may automatically save your screenshots in your OneDrive Pictures folder under Screenshots. If you use Dropbox or a similar cloud-based service provider, it may automatically save a copy too.
If you want to save only a portion of the screenshot, you can paste the entire image and then edit it to include only the portion you’d like to preserve. When selecting or cropping, be sure to consider what elements of an exhibit would be important. For example, the visibility of the webpage address and the time and date displayed by your computer (often in the lower righthand corner). Save the image as a JPG, PNG or BMP file.
TIP 3: Software and tools built to preserve
While printing to a PDF or saving a screenshot preserves what you see, screenshots lack the behind-the-scenes information (called metadata) that’s embedded into the webpage or post. In addition, the foundational requirements of how, when and where the evidence was collected relies heavily on you (the collector of the evidence) to maintain the process and chain of custody.
Alternatively, consider utilizing software built specifically for collecting and preserving online and social media content. These tools log the accurate visual representation of the content as well as all available metadata such as date, time, location, poster’s IP address and browser used. All content can be digitally signed and time-stamped in satisfaction of the legal requirements for submitting digital content as evidence according to the Federal Rules of Evidence and states’ ESI evidentiary rules.
Importantly, this type of data collection software monitors social media sources on its own. For instance, PageFreezer uses the Twitter, Facebook, YouTube and Instagram APIs to gather data in real time. You can rest assured knowing PageFreezer has created an automatic record of the data, even if it’s taken down or deleted. Another provider, WebPreserver, boasts, “if you can gain access to it, we can collect it. Websites, social media, blogs, web forums… whatever is required to support the case. And yes, we do provide affidavits upon request.”
Other social media and internet-based data collection companies, such as X1 Social Discovery and Page Vault, offer similar services. A review of these providers shows that they offer a wide range of service options and pricing models to fit the needs of single-project clients and frequent users.
As people increasingly share their lives online, the incredible amount of content will continue to grow and often be relevant to litigation. By remembering these tips, you’ll be able to quickly and appropriately take steps to preserve social media evidence.
Does your firm utilize digital data collection software? Share your thoughts below.