Social media as we know it started in the early 2000s with websites such as Friendster, MySpace, Facebook, and LinkedIn. Today, many different social media services encourage a large user base to interact and share content with each other across the Internet. Several of these platforms allow public and private posting of material, as well as instant messaging capabilities.
The 10 most used social media platforms are:
- Facebook (Meta)
- YouTube (Google)
- WhatsApp (Meta)
- Instagram (Meta)
- TikTok (ByteDance)
- Snapchat (Snap)
- Reddit (Advance Publications)
- LinkedIn (Microsoft)
- Twitter (X Corp)
Using Social Media as Evidence
When it comes to social media in your court case, keep in mind the following considerations:
- Social media content is discoverable. Even if a third party posts content, such as tagging individuals from either party in a photo posted on social media, it could cause the social media profiles of the parties in your case to become relevant in the matter.
- The methods used for social media preservation and authentication are critical. Hard-copy printouts, PDFs, and screenshots won’t cut it anymore. Just like many other types of ESI, social media content must be treated with the same rigor. The collection methods used must capture the relevant metadata needed to authenticate the content. Beyond authentication of the content, authorship of the content may need to be proven, which is where IP addresses and timestamps also come into play.
Stored Communication Act
Message content is extremely difficult to obtain directly from social media sites via a civil subpoena. The Stored Communication Act (18 U.S.C. § 2701 et seq.), or SCA, governs the circumstances under which electronic data service and storage providers may disclose a customer’s substantive electronic data (e.g., content of messages, pictures, etc.).
The SCA generally prohibits an electronic communication service (Facebook, Linkedin, Myspace, etc.) or a company providing remote computing services (Google, Yahoo!, etc.) from knowingly divulging to any person or entity the contents of any communications maintained or carried by the service provider. (See 18 U.S.C. section 2702(a).)
Statutory exceptions to this general prohibition are codified in sections 2702 (b) and (c) of the SCA and include (1) cooperation with law enforcement and (2) circumstances where the customer or subscriber or the recipient of an electronic communication has issued his or her lawful consent to the release of this information.
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