Accessing Social Media in an Investigation

With so much information being exchanged and shared online, it makes sense to see social media as a rich source of material for both plaintiffs and defendants to use in investigations, but getting access to the relevant data isn’t always a simple matter of clicking on a page. Many users of social media have privacy settings that restrict access to the information they post.

In certain cases, the court has ordered that passwords be disclosed, but this is extreme. The decision to order the exchange of log-in information has been based on evidence showing that something relevant to the investigation is probably in the private or non-public part of a social media page.

A judge might request a user to provide the evidence from his or her own social media pages to lawyers for the other side. But without a formal request for disclosure, investigators and attorneys may be left with some difficult dilemmas.
Recent cases in which parties in a dispute have ‘friended’ someone to gain access to their social media posts have shed light on what the courts consider to be acceptable. Evidence gained by this kind of deception has not held up so far.
It
also violates the terms of service set out by some social media platforms and has prompted some states to address the practice in writing.
The California Penal Code 528.5 says: “Any person who knowingly and without consent credibly impersonates another actual person through or on an Internet
Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person is guilty of a public offense.”
The Connecticut Rules of Evidence Section 52-184a says: “No evidence obtained illegally by the use of any electronic device is admissible in any court of this state.”
Even when information is publicly available, though, there