Law360 - September 13, 2013
I recently addressed the general implications of the Stored Communications Act on locating and retrieving electronic evidence in a Law360 article entitled “A Hurdle to Obtaining Electronic Evidence.” As explained by the Ninth Circuit in the landmark case Quon v. Arch Wireless, “Congress passed the Stored Communications Act in 1986 as part of the Electronic Communications Privacy Act. The SCA was enacted because the advent of the Internet presented a host of potential privacy breaches that the Fourth Amendment does not address. See Orin S. Kerr, A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending It, 72 Geo. Wash. L. Rev. 1208, 1209-13 (2004).
Generally, the SCA prevents "providers" of communication services from divulging private communications to certain entities and/or individuals.” One consequence of the SCA is that online providers of social media, such as Facebook, Twitter and Google+, are prohibited from releasing stored communications by and between their customers, even in response to civil subpoenas. I thus noted in my prior article, “[e]lectronic evidence may be readily available in the vast online world, and should not be ignored. But litigators must appropriately consider the limitations on obtaining that information directly from online providers in accordance with the Stored Communications Act."
Yet, once we move past the legal considerations of the SCA, we run head-on into the specific practical considerations and methodologies for the discovery of electronic evidence from social media sites, such as Facebook, Twitter and Google+. This article is intended to address the nuts and bolts of social media discovery from those leading social media sites and provide some practical advice to attorneys on addressing the quickly changing landscape of social media.
With over 1 billion members, Facebook has been serving as the modern worldwide town square and public information repository for individuals and companies around the globe. For many, Facebook is where they post information on events happening in their lives, their thoughts about topical issues, pictures and videos (frequently of family and friends), and links to stories and videos located elsewhere on the Internet.
After years of spending valuable resources to respond to requests for copies of information contained in Facebook profiles, the company now allows its users to easily download their entire timeline profile, including everything they’ve shared on Facebook, as well as tons of account information and activity logs.
The process begins with clicking on a link labeled “Download a copy of your Facebook data” on the General tab of your Account Settings page. Facebook then begins the automated process of gathering and packaging everything. There is a second option after electing to download your profile information to additionally download what Facebook refers to as an “Expanded Archive.” Detailed instructions on downloading information from Facebook, and a list detailing what you will receive with the “Expanded Archive” can be found on the Facebook website at https://www.facebook.com/help/212802592074644.
Once the archive is complete, Facebook sends an email to the email address registered with the account. The email includes a link to download the package, and now you’re off to the discovery races.
Twitter is Carl Jung’s fantasy come true. An interconnected stream of consciousness, where anyone with access to the open Internet can tell the entire world what is on his or her mind. Those who post so-called “Tweets” can include links to other parts of the Internet, upload photos, or get creative with text, so long as it is written in 140 characters or less.
Twitter nicely catalogues, dates and time stamps every entry. And it is all available to the public with quick, easy access — provided the user hasn’t selected “Tweet Privacy” in their settings. If the privacy setting is selected, only other approved users can receive or view any new Tweets.
Like Facebook, Twitter now provides a process for any user to download her entire archive of Tweets. This is available by going to the Setting page, in the Account tab. Scroll down to near the bottom of the page, and you will see the label “Your Twitter archive.” Click on the button “Request your archive,” and like Facebook, an email will be sent to the user’s registered email address with a link to download your archive from Twitter. The download comes in a ZIP file. Included is a log of all Tweets with date and time stamp as well as other information in CSV format. Additionally, there is an HTML interface, where all Tweets can be viewed by month.
If you want to locate and download the public Tweets of any other user, there are several websites available that will handle the task. One such website is AllMyTweets.net. If you want to get more complex, Twitter has an API (Application Programming Interface) available for programmers to obtain multiple user streams.
One important function of Twitter to note is the Direct Message, or DM, which is a private message sent from one user to another. DMs are not included in downloaded archives and are not publicly available. To obtain all DMs sent by a user, please see the instructions provided by Twitter on its website at https://support.twitter.com/articles/14606-posting-or-deleting-direct-messages.
Google+ and YouTube
Google opened its social media site, Google+, in June 2011, late in the game. But, being Google, it quickly rose to half a billion members in under two years, making it one of the top three social networking sites worldwide. Google+ has incorporated and been interconnected with many other Google products, including the widely used Picasa photo-sharing site as well as the video-sharing site, YouTube.com, which is the third most trafficked website in the world behind the Google.com parent site and Facebook.com.
Similar to Facebook and Twitter, users can now obtain an archive of their Google+ account using the Google Takeout product, as well as the data in most other Google products, including: Buzz, Contacts, Drive, Google+ Photos (Picasa), Hangouts, Profile, Reader, Voice and YouTube. Instructions for use of Google Takeout can be found on the Google online support site at https://support.google.com/takeout.
Unlike Facebook and Twitter, when creating an archive using Google Takeout, you can see the volume of data that will be downloaded beforehand, and watch as the archive is assembled. Additionally, Google has sidestepped the need to wait for an email that instructs a user to click on a link to then download the archive. Instead, Google simply makes the user reenter his or her password to begin the assembly process, and again to download the final product, which is delivered in a ZIP file, and contains HTML files.
Keeping Up with the Joneses
There are many notable social networking and other data hubs that may have key electronic evidence stored in addition to the big sites mentioned above. Plus, there are new sites and services gaining popularity every day. Even e-discovery professionals have a hard time keeping up with the rapidly evolving environment.
So, how is an average attorney juggling scores of cases supposed to keep up?
To start, below is a quick reference guide to many of the current (as of August 2013) leading social media and information storage sites, beyond those discussed above.
· LinkedIn (professional networking)
· Tumblr (microblog)
· MySpace (general social network)
· MyLife (general social network)
· Vimeo (video sharing)
· Flickr (photo sharing)
· Instagram (photo sharing, part of Facebook)
· 500px (photo sharing)
· SmugMug (photo sharing)
· Snapfish (photo sharing)
· Shutterfly (photo sharing)
· SnapChat (newbie / auto-destroying photos)
· Dropbox (data storage)
· iCloud (data storage)
· Box.net (data storage)
· ShareFile (data storage)
· Evernote (notetaking and data storage)
· Foursquare (location)
· Yelp (business reviews)
· TripAdvisor (travel business reviews)
· Flixster (movie reviews and sharing)
· Cozi (family information management)
· iMessage (instant messaging)
· AIM (instant messaging)
· Skype (instant messaging & video)
· Lync (instant messaging)
· Yahoo! Messenger (instant messaging)
· WhatsApp (newbie / instant messaging)
· Match (dating)
· eHarmony (dating)
While the above list is far from comprehensive, you can further reference the following Wikipedia pages that contain updated lists of popular social media.
Additionally, it’s important to keep in mind that when interviewing witnesses or custodians, or discussing pending document requests in a meet and confer with opposing counsel, you are not feasibly expected to provide an exhaustive list of every potential source of electronic evidence in the online universe. I have found it helpful to discuss the issue using the classic combination of open-ended questions and descriptive questions with catchalls. For example:
· “Do you use any social networking sites?”
· “Are you a member of Facebook, Twitter, Google+, LinkedIn, or any other social networking site?”
· “Do you upload or store documents, notes, calendars online, or maybe on your phone or tablet?”
· “Do you upload or synchronize your photos, videos or documents to Dropbox, iCloud, Instagram, Picasa, YouTube, or other websites?”
· “Have you ever heard of … (list sites)?” If yes, follow up with, “Do you use any of those products, or anything similar to them?”
Finally, if for any reason you lack comfort in addressing these issues with clients or opposing counsel, I strongly encourage you to either locate an internal resource to assist you, or to engage a service provider to advise you, and when possible, assist in the collection of electronic evidence.
Overcoming the Stored Communications Act is merely the initial hurdle in addressing discovery of information located in online social media. Once that hurdle is overcome, or if it is not in play, attorneys should understand the nuts and bolts of obtaining discovery from at least the major social media players as discussed above, and should, when appropriate, reach out to their e-discovery counsel, consultants or service providers for assistance.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892, 900 (9th Cir. 2008) rev'd and remanded sub nom. City of Ontario, Cal. v. Quon, 130 S. Ct. 2619, 177 L. Ed. 2d 216 (U.S. 2010)
 Facebook.com Permalink (last visited August 27, 2013).
 See http://support.twitter.com/articles/14016# (last visited August 27, 2013).
 See https://dev.twitter.com/docs/streaming-apis (last visited August 27, 2013).
 Twitter.com Permalink (last visited August 27, 2013)
 See http://en.wikipedia.org/wiki/List_of_social_networking_websites (last visited August 27, 2013).
 See http://www.google.com/takeout/ (last visited August 27, 2013) (login required).
 Google.com Permalink (last visited August 27, 2013)