Understanding Social Media Evidence

Pew Research reports that more than 65% of all adults used social media every day in 2011 ' up from 61% in 2010. http://bit.ly/Vbqxeo. This expansive use of social media has created new sources of evidence. For lawyers to best assist their clients, they must better understand social media and how their clients share information on the Internet.

You don't need to devote hours every day to posting tweets and commenting on Facebook. But to get a better understanding of how social media works, you should spend some amount of time creating a Facebook page, Twitter account and LinkedIn connections and learn to communicate via text messaging as well as use whatever other Web tools your clients use.

Terms of Service

Before you begin these activities, read the Terms of Service (ToS) and the privacy policy for each site. Yes, really. It's probably an accurate guess that only about 1% of Internet users read either.

What you will learn from the ToS should help decide how much you might want to share on that site. As a general rule, do not include more on your social media home pages about yourself than you are comfortable including on your current resume, on your own website, or the bio page on your firm's website.

In other words, you do not need to explain that you really like pizza or bagels or Maseratis, or other personal information that some people feel compelled to post. Nor do you need to get involved in a political debate about issues of the day or candidates for office.

Keep in mind that you should not post Tweets ' or send messages through those sites ' that you would not want anyone other than the recipient to see. These messages are neither private nor protected, even though they appear to be, and worst of all, messages on the Internet are permanent.

The more you understand the ToS, the better equipped you will be to do your job, because almost every business operating today has an Internet presence. So the more you understand the business operations of the Internet website you use, the better you will be able to help clients with their Internet business issues, whether in transactions or litigation.

Make Your Own Policy

As a matter of course, many businesses routinely review other companies' ToS in their market to get an idea of the terms that should be on their own websites. While on the surface this makes sense, it may not really be a good business strategy. For instance, the most popular search engines are offered by Google, Microsoft Bing, AOL and Yahoo, but each brand has very different terms in their ToS. Why? Because each company has different business and ownership issues. A business should not rely exclusively on the ToS of a particular website as a model of what provisions that they should include in their own ToS. Lawyers can help their clients understand the legal risks associated with their businesses, and consider what terms should be included.

Privacy

Unlike ToS, where there are few, if any, statutes governing them, global privacy laws vary widely. For instance, in the U.S., Internet privacy is regulated by the Federal Trade Commission (FTC), and websites need not have a privacy policy unless children under 13 are users. But if there is a privacy policy, then the FTC will expect the website owner to adhere to the privacy policy it offers.

Every website an Internet user visits has access to the user's IP address. Other information is also available, depending on cookies, and what other data users permit websites to know about them, including personal identifying information (PII). Finding IP addresses are how copyright holders of music have been able to figure out, with the help of Internet service providers, who has downloaded their music.

An IP address can also be used to direct unwanted advertisements targeted to a user based on his or her Web and social media habits determined by the sites visited. But in the U.S., if a website privacy policy specifically says that it will not use a user's IP address, then the site may not use it. If the website does use the user's address, then the FTC can enjoin the use and may fine the violator. However, if the website has no privacy policy or it is silent regarding the use of an IP address, the FTC can take no action to prevent use of IP addresses.

What makes privacy policies more complicated is that privacy laws outside the U.S. are very different. The European Union adopted the 1995 Data Directive (last updated in Jan. 2012; see, “New Draft European Data Protection Regime,” m Law Group, http://bit.ly/Xz72XD) that allows citizens of member states to inspect any computer that has information about them, and allows the citizen to correct any information. Also, unlike in the U.S., even e-mails are private to an employee in the EU. Other countries like Canada, Japan, and Australia have privacy laws that are similar to the EU. So if your client does business outside the U.S., you may need to understand the privacy laws of each country where it does business to assist your clients with compliance and litigation. If your clients' servers are in other countries, the privacy laws may affect data on those computers. Therefore you need to understand these issues to best assist your clients.

Evidence

A significant amount of evidence is created from social media. Trial lawyers can benefit by the more they know and understand how people communicate with social media tools. During discovery in most lawsuits, it is critical that lawyers review social media sites for evidence. Also, lawyers often find important evidence on clients' websites, such as marketing representations about how products will perform, sales estimates, or individuals misrepresenting their education or business experiences.

Given the importance of social media and dependence by businesses of the Internet, lawyers have to jump in and learn as much as possible about social media and other Internet-related evidence to be better prepared to help clients, and understand what witnesses and jurors experience every day.

Pew Research reports that more than 65% of all adults used social media every day in 2011 ' up from 61% in 2010. http://bit.ly/Vbqxeo. This expansive use of social media has created new sources of evidence. For lawyers to best assist their clients, they must better understand social media and how their clients share information on the Internet.

You don't need to devote hours every day to posting tweets and commenting on Facebook. But to get a better understanding of how social media works, you should spend some amount of time creating a Facebook page, Twitter account and LinkedIn connections and learn to communicate via text messaging as well as use whatever other Web tools your clients use.

Terms of Service

Before you begin these activities, read the Terms of Service (ToS) and the privacy policy for each site. Yes, really. It's probably an accurate guess that only about 1% of Internet users read either.

What you will learn from the ToS should help decide how much you might want to share on that site. As a general rule, do not include more on your social media home pages about yourself than you are comfortable including on your current resume, on your own website, or the bio page on your firm's website.

In other words, you do not need to explain that you really like pizza or bagels or Maseratis, or other personal information that some people feel compelled to post. Nor do you need to get involved in a political debate about issues of the day or candidates for office.

Keep in mind that you should not post Tweets ' or send messages through those sites ' that you would not want anyone other than the recipient to see. These messages are neither private nor protected, even though they appear to be, and worst of all, messages on the Internet are permanent.

The more you understand the ToS, the better equipped you will be to do your job, because almost every business operating today has an Internet presence. So the more you understand the business operations of the Internet website you use, the better you will be able to help clients with their Internet business issues, whether in transactions or litigation.

Make Your Own Policy

As a matter of course, many businesses routinely review other companies' ToS in their market to get an idea of the terms that should be on their own websites. While on the surface this makes sense, it may not really be a good business strategy. For instance, the most popular search engines are offered by Google, Microsoft Bing, AOL and Yahoo, but each brand has very different terms in their ToS. Why? Because each company has different business and ownership issues. A business should not rely exclusively on the ToS of a particular website as a model of what provisions that they should include in their own ToS. Lawyers can help their clients understand the legal risks associated with their businesses, and consider what terms should be included.

Privacy

Unlike ToS, where there are few, if any, statutes governing them, global privacy laws vary widely. For instance, in the U.S., Internet privacy is regulated by the Federal Trade Commission (FTC), and websites need not have a privacy policy unless children under 13 are users. But if there is a privacy policy, then the FTC will expect the website owner to adhere to the privacy policy it offers.

Every website an Internet user visits has access to the user's IP address. Other information is also available, depending on cookies, and what other data users permit websites to know about them, including personal identifying information (PII). Finding IP addresses are how copyright holders of music have been able to figure out, with the help of Internet service providers, who has downloaded their music.

An IP address can also be used to direct unwanted advertisements targeted to a user based on his or her Web and social media habits determined by the sites visited. But in the U.S., if a website privacy policy specifically says that it will not use a user's IP address, then the site may not use it. If the website does use the user's address, then the FTC can enjoin the use and may fine the violator. However, if the website has no privacy policy or it is silent regarding the use of an IP address, the FTC can take no action to prevent use of IP addresses.

What makes privacy policies more complicated is that privacy laws outside the U.S. are very different. The European Union adopted the 1995 Data Directive (last updated in Jan. 2012; see, “New Draft European Data Protection Regime,” m Law Group, http://bit.ly/Xz72XD) that allows citizens of member states to inspect any computer that has information about them, and allows the citizen to correct any information. Also, unlike in the U.S., even e-mails are private to an employee in the EU. Other countries like Canada, Japan, and Australia have privacy laws that are similar to the EU. So if your client does business outside the U.S., you may need to understand the privacy laws of each country where it does business to assist your clients with compliance and litigation. If your clients' servers are in other countries, the privacy laws may affect data on those computers. Therefore you need to understand these issues to best assist your clients.

Evidence

A significant amount of evidence is created from social media. Trial lawyers can benefit by the more they know and understand how people communicate with social media tools. During discovery in most lawsuits, it is critical that lawyers review social media sites for evidence. Also, lawyers often find important evidence on clients' websites, such as marketing representations about how products will perform, sales estimates, or individuals misrepresenting their education or business experiences.

Given the importance of social media and dependence by businesses of the Internet, lawyers have to jump in and learn as much as possible about social media and other Internet-related evidence to be better prepared to help clients, and understand what witnesses and jurors experience every day.