Online communications: “Meet me online so we can talk privately for all to read.”
The use of electronic internet devices such as computers, laptops, cell-phones and smart phones, has led to an explosion of readily available information. The web has become a literal smorgasbord of data – facts galore, sports stats heaven, and the latest teenage nonsense can all be accessed at the touch of a button, or the touch of a screen. The sheer amount of “stuff” can seem at times more like a virus outbreak than an explosion, or like a tidal wave that wipes out the casual web surfer.
Even more accessible than before are our communications. Social networking sites have put the very corners of our private life on blast for all to see and read. The latest posts and status updates let everyone know where we’ve been, what we ate, what we think about the latest movie, what we’re going to wear tomorrow – the list is as endless as our observations of the minutest details of our minute-to-minute existence.
And our conversations are getting memorialized in the form of comments and instant messages, sometimes allowing random intruders to interject in our sophisticated discussions of the most recent happenings. “Who is this person again?” is not an uncommon question when chatting with an online “friend”.
As these internet devices are used more and more for “private” communications, the question begs to be asked, “Can my electronic communications be used as evidence in court against me?” In general, the answer to this is “yes” – this information can be used, subject to various limitations, during what is known as the discovery process of a trial. What follows is a discussion of the basic applications of discovery to electronic information.
What is “The Discovery Process” in General?
In general, evidence gathered during the pre-trial phase of a lawsuit is known as discovery. During the discovery phase, each party is allowed to request documents and other items from the opposing side. Following the Federal Rules of Civil Procedure (FRCP), these documents and items are entered into the record to be admitted as evidence. If a party is unwilling to produce documents for discovery, the other party may force them to hand over the evidence using discovery devices such as a subpoena.
Usually the objects produced during discovery tend to be documents and records kept on file by a person or a business. Some items are not admissible as evidence. Examples of items that may not be reached during discovery are those protected by the attorney-client privilege, or items that have been illegally seized by warrant.
What is “Electronic Discovery”?
In legal parlance, electronic discovery, or “e-discovery” refers to discovery of Electronically Stored Information. Electronically Stored Information, or “ESI” is an actual legal term adopted by the Federal Rules of Civil Procedure in 2006. ESI refers to information that is created, stored, and used in digital form, and requires the use of a computer for access. Such information may take the form of documents, e-mails, web site addresses, and digitally stored photographs. ESI is subject to the basic principals that govern the discovery phase. Once admitted as evidence, ESI becomes “electronic evidence”.
However, because ESI is a relatively recent phenomenon (legally speaking), and because of its unique nature, there are various rules and statutes that are unique to e-discovery. E-discovery can often be much more demanding than traditional discovery, both time-wise and financially, because of the enormous amount of information that can be stored on a computer.
Which Laws Govern E-Discovery?
Federal Rules of Civil Procedure (FRCP)
As mentioned, the basic rules governing e-discovery are the Federal Rules of Civil Procedure (FRCP). Specifically, Rule 16 was amended in 2006 to include ESI. The greatest contribution of FRCP to the discussion of e-discovery is the term ESI.
The U.S. Constitution: 4th Amendment Search and Seizure rules apply
Under the U.S. Constitution, electronically stored information is subject to the same 4th amendment protections guiding the search and seizure process. Some of these 4th amendment inquires include whether or not the person has a privacy interest in the property, and whether the police obtained a valid search warrant in seizing the property. As we will see, in the realm of e-discovery, obtaining valid search warrant is a central theme of the discussion.
The Electronic Communications Privacy Act of 1986 (EPCA)
Born out of old-school wiretapping legislation, the EPCA is one of the main legislative Acts affecting e-discovery. This federal statute prohibits third parties from intercepting and using electronic communications without proper authorization. The term “third parties” applies to both government actors and private citizens. “Proper authorization” has been subject to scrutiny, since many websites often contain questionable disclosure agreements. The Act protects communications that are either in storage or in transit.
While the EPCA does secure a good amount of privacy for the electronics user, it has been the target of much criticism. For example, the Act initially did not protect e-mails while they were in transit. However, later cases ruled that this would defeat the entire purpose of the Act, since e-mails are transient at least once in their existence. E-mails are now protected both in storage and in transit.
Another criticism of the Act is that it is not very difficult for government actors to find ways around the “proper authorization” requirement. All that the agent would need to do is state that the information was relevant to issues of national security, i.e., counter-terrorism. Therefore a proper warrant is relatively easy to secure if the agent could justify a seizure of the ESI based on anti-terrorism theories. Also, warrantless seizures are easily justified on such a theory. Many of the concerns with anti-terrorism became more complicated with the passage of the Patriot Act of 2001, which gave government agents even more access to ESI.
Popular Categories of ESI that are Discoverable
Courts have ruled that basically all forms of ESI are discoverable. As stated, in order for ESI to be obtained in discovery, the government actor or private individual must still adhere to discovery rules and search and seizure requirements. Here are some notes to consider regarding the various forms of ESI:
E-mail
Under the EPCA, e-mails are protected from improper disclosure by third parties both in storage and in transit. The Federal Rules in 2006 specifically named e-mails as ESI and therefore they are discoverable as long as the proper procedures are followed. Two main points in the discovery of e-mails are the temporary nature of e-mails, and the level of specificity required in the warrant or discovery request.
In a 2003 case, Zubulake v. UBS Warburg 217 F.R.D. 309 (S.D.N.Y. 2003), a great deal of effort was expended during the case in trying to prove the existence of certain e-mails. In this case, the e-mails sought were never found, nor was it proven that they were destroyed, and the court ruled that they did likely exist. UBS was sanctioned heavily for not preserving information that might be subject to discovery. The case illustrates how important it is to be timely in the production of ESI, because it is subject to being erased or deleted.
In another 2003 case, Theofel v. Jones-Farley 341 F.3d 978 (2003), a lawyer requesting production of e-mails was sanctioned for not specifying the dates of the e-mails requested (he had requested that all of the company’s e-mails be produced). This case demonstrates that in discovery of ESI, a lawyer needs to be very specific as to which e-mails are requested. Courts need to be able to identify which e-mails are relevant to their opinion; if they cannot do so, the discovery request will be denied.
Text Messages, Instant Messages, and Chats
Text messages, Instant Messages (IM), and Chats are all ESI and are treated like e-mails for the purposes of discovery. Therefore they are discoverable. Many users of text and instant message believe that because their messages are executed on a mobile phone, their communications are deleted once sent. However, most service providers keep a record of texts and IM’s for anywhere from one to three months after they are sent. Also, after the Zubulake case, companies are much more wary of clearing messages from their database, especially if the message is “potentially discoverable” in a pending case.
Text messages and the like can also present problems with timeliness, as they tend to be deleted from the database even more quickly than e-mails. Also, most texts do not have a title as do e-mails, so they can be cumbersome to sift through for the relevant information. They are still, however, discoverable.
Social Networking Websites
Information posted on sites such as MySpace or Facebook is definitely considered to be ESI and subject to discovery. This means that anything posted by a profile owner that is incriminating could be used against them in court as electronic evidence.
Attorneys now regularly search such networking sites such as MySpace and Facebook to gather information that might be relevant to their cases. This might involve identifying witnesses, or collecting statements that might add testimonial weight to their case. Also, photographs posted online can be used in various ways to establish a case. Therefore profile owners should be wary of posting any information that might be used against them in court.
To date there have been no major corporate legal cases that relied heavily on the production of discovery information from social networks such as Facebook or Twitter. A recent Canadian case, Leduc v. Roman 2009 CanLII 6838 (ON S.C.), held that information posted on websites such as Facebook must be disclosed upon request even if the person has blocked public access to their profile. It probably won’t be long before we see some major American cases dealing with the production of evidence from social network sites.
Most legal cases involving social networks and privacy have been the other way around: the website intruded on people’s privacy with invasive advertisement. Perhaps the reluctance to involve such information in litigation is that these websites are very new to the scene. Also, most companies agree that e-discovery in a social network setting can be a potential nightmare. As with texts, there are usually no titles in much of the information posted, not to mention the various applications and different features of such sites. Finally, most attorneys would prefer to rely on traditional forms of evidence such as witness testimony, before relying on information from networking sites.
More recently, the Philadelphia State Bar Association has published an opinion regarding attorneys’ use of third parties to obtain information from social networks. The opinion stated that an attorney should not use a third party in order to gain access to a person’s profile, for example, by asking someone else to make a friend request in order to remain anonymous. Although information on social network sites is discoverable, attorneys and state officials must still abide by rules of ethics and professional conduct.
A Final Note: Creative Lawyering and E-Discovery
Finally, remember that it is not always the content of electronically stored information that can be incriminating. ESI can be used in many creative ways. The information might be used to prove a required element of a crime, such as the person’s mental state, or a person’s location in a particular place. For example, if a suspect’s alibi might be questioned if a computer log shows that they were actively online at a different place. Creative lawyering means that a lawyer will use any information to prove their case, and they might do so in ways not commonly imagined.
So, it is to your benefit that you be aware of the possibility of electronic information being used as evidence. Obviously, posting incriminating evidence is unwise, but bear in mind that information can be used in a variety of ways. Even seemingly harmless conversations can be used to prove guilt in a court of law. And statements that other people post on a user’s profile are also fair game. It is nearly impossible not to be involved with ESI in some way or another, but a little common sense can go a long way.
