The Ethical Guidelines for Investigating Social Media
As we all know, because of several prominent court cases, social media evidence gathered is deemed admissible in the eyes of the courts, even if the subject’s profiles are set to private. Why? Because the information that we choose to share on social platforms is meant to be shared with someone. Even if we only share this information with one person, it is not privileged and protected, as there are no reasonable expectations of privacy when we log on. The purpose of social media in its entirety is to connect and communicate with others (even though some choose to utilize their profiles as their own personal diaries – yikes!).
With that being said, as investigators, we still have several ethical guidelines that we must follow when collecting social media evidence. Refer to the guidelines listed below:
“Public” Information: When investigating a subject’s social media account, all information that they post publicly is fair game! It’s no different than reading a newspaper/magazine article, a book, a public website/blog, etc. and therefore is not deemed unethical by the courts and bar associations. There is absolutely no contact initiated between either party when gathering public posts!
“Non-public” Information: When a subject’s social media accounts are set to private, or even partially private, only their friends/subscribers/followers/etc. are able to view this information.
First, do NOT request to be their friend/subscriber/follower. Contact with a claimant is a big no-no is some jurisdictions, and requesting to be their friend in order to see their private posts is most definitely making contact. It is best to gather the public portions of the profile, and down the line, subpoenas can be issued to retrieve this information if litigation proceeds.
Next, some jurisdictions DO allow social media contact with claimants, but ONLY if they are not represented. However, it is virtually impossible to identify if a claimant has retained legal counsel unless they willingly provide that information on contact to the claims professional or the investigator. Even in these jurisdictions, it is best to refrain from requesting to friend/follow/subscribe to the claimant, as a simple timing issue may be the difference between ethical and unethical.
Lastly, in jurisdictions where it is permitted to make contact with a claimant via social media if they are not represented, you must reveal your identity and the purpose for the request. Therefore, after identifying yourself as a claims adjuster or an attorney or an investigator (gasp!) and revealing that you only want to be their friend on social media for the purpose of disproving their claim and documenting their daily activities in order to prove that they can in fact work and drive and move (even though they say they can’t), the claimant will most likely deny your request and delete, deactivate, or heighten their privacy settings anyway. Lose, lose situation.
One of the best parts of being an investigator is finding that one claimant with a slam-dunk social media presence, little to no privacy settings, and the willingness to share every minute detail of their daily lives (including the fact that they didn’t actually get hurt at work; they were injured in a flag football game last weekend). Those are the cases that make it all worth it!