Locating Social Network Legal Evidence
If you seek to cause Facebook to disclose the content of communications to or from a Facebook user, remember that the user's home or business email account may contain much of the information you seek. (The same goes for LinkedIn, Foursquare, Yelp, Skype, Groupon or online dating sites and services.)
The email account may contain some of the messages the user posted on Facebook. Facebook allows a user to submit, via email, updates for publication on his or her Facebook Wall. See my records management discussion about the Facebook-update-by-email feature.
Further, Facebook often emails a user with notices about and/or copies of content of messages posted by others for the benefit of the user. For example, here is a screenshot of an email from Facebook:
Hence, the user’s email account may contain the content and date/time of many desired Facebook messages, even those messages (ESI*) that have been deleted from Facebook.
Records on Cell Phones
Another place to look for Facebook notices and content may be SMS records on the user’s cell phone. Facebook can be configured to send certain notices (with copies of FB message content) to the user’s SMS account. The types of notices that FB sends to SMS are not as numerous as the types that FB may send to electronic mail.
Service Providers Resist
Normally, when handed a civil subpoena, such as in a divorce, infidelity or child custody investigation, a service provider like Facebook (or Hotmail or Google ) will resist disclosing the content of a user’s communications unless and until the user consents. A common rationale cited for resistance is that the content is protected under the Stored Communications Act.
Compelling User to Cooperate
Often, law will compel the user to consent to the service provider releasing records of communications. Some recent cases have been compelling users to turn over, to their adversaries, their social media user ID and password.
Metadata and other Non-Message Content Data
See practical discussion on the retetion and disclosure of text and other messages by service providers. Service providers may see a distinction between the content of messages and metadata about the messages, such as time of transmission. Some service providers believe they can be compelled to turn over meta data but not message content.
An emerging class of social media services (Foursquare.com, Yelp, Gowalla) collect and store not just messages, but also location information. John was at the burger joint on May 11, 6:33pm, and at the ball park May 12 at 7:07pm. This data will be the target of subpoenas. The degree to which service providers will resist the subpoenas remains to be seen.
*What is "ESI"? ESI means electronically stored information. It is a legal term of art applying to electronic information that is desired for legal purposes such as a lawsuit or an investigation.
See related post on deception in investigations on Facebook and other social networks.
Related article: How to record what you see on Facebook or other online media.
Update: Send a preservation letter to the subject of an investigation.