No Place for Privacy

5 years ago
Eric Vanderburg

While many people think that a person’s social media posts, photos, and conversations are protected as private information, especially if the user has “private” settings, courts have thus far denied this privilege. In one case in Virginia, an attorney advised his client to delete incriminating photos from his Facebook and later deactivate the account. This was considered spoliation, or destruction of evidence, and it led to fines for both the client and the attorney.  It may actually end the attorney’s career.

Lawyers need to be careful when they advise clients on their privacy rights on sites such as Facebook, Twitter, Linkedin, MySpace, and other social media sites.  Privacy on these social media platforms cannot be assumed.   The Gibson Dunn 2011 Mid-Year E-Discovery Update says that individuals do not have a reasonable expectation of privacy in social media whether they have configured the privacy settings or not.

Even with privacy settings on, the social media site has access to your data and will use it for advertising or in aggregate for data mining.  The privacy policies of many social media sites allow them great latitude in what they can do with your data including selling it to other companies, using it for targeted advertising, and in some cases, owning the content you produce on the site.

Social media evidence is also increasingly important in cases and lawyers need to know how to properly preserve such data for court.  Work with a competent forensic team to obtain the data in an evidentiarily sound manner.