Evidence on Social Networking Sites

Social networking sites offer an abundance of exculpatory and impeaching evidence that may not be obtainable without some undercover detective work. Unfortunately, discovery rules and ethical guidelines have not kept pace with the digital sprawl of MySpace and Facebook. In the absence of explicit direction from the Rules of Professional Conduct and the laws governing online behavior, flying a false flag in these uncharted waters may be hazardous. See generally, “Pretexting, Legal Ethics and Social Networking Sites,” LLRX, Oct. 5, 2009.

Deceptive Practices

Before an attorney or investigator considers using subterfuge ' such as concealing his or her true identity and purpose to contact a witness through an online profile ' he or she ought to be mindful that legal and ethical precedents on this subject are slow in coming.

Historically, surreptitious investigation has found some validation in the arenas of law enforcement, civil rights and intellectual property infringement. Still, there is a scarcity of ethical and legal authorities outside these specific areas and only recently has online covert investigation begun to draw attention.

In March, the Philadelphia Bar Association's Professional Guidance Committee issued what appears to be the first ethics opinion (2009-02) categorically proscribing lawyers and their associates from using deception in connection with contacting a deponent through her online profiles.

A witness in a civil case revealed during her deposition that she had Facebook and MySpace accounts. The attorney seeking the ethics opinion believed these sites contained information relevant to the case and, in particular, valuable for impeachment. No direct questions were posed to the witness about the contents of the accounts.

Access to the witness' pages was by permission only. The attorney asked the committee whether it would be allowable to ask someone to “friend” the witness without disclosing his affiliation or purpose. All identifying and other information would be truthful.

Noting the responsibility of lawyers for the behavior of investigators, the committee found that the proposed actions would constitute misconduct under Rule 8.4 prohibiting “dishonesty, fraud, deceit or misrepresentation.” Therefore, “friending” the witness without revealing that the purpose of the contact was to gain access to private areas of her profile constituted an act of “deception.”

The lawyer's concern over the witness' reluctance to otherwise permit access did not soften the nature of the concealment. Even if the witness had a liberal practice of accepting friend requests, running the risk that someone might take advantage of the information in her profiles, it did not temper the result.

Acknowledging the conflicting views on covert investigation, the committee declined to recognize an exception along the lines of the ones found in New York and other states ethics opinions and court decisions.

New York Exception

In Opinion 737, the New York County Lawyers' Association's Committee on Professional Ethics developed this approach in response to a question about private attorney pretexting:

Non-government attorneys may ' ethically supervise non-attorney investigators employing a limited amount of dissemblance in some strictly limited circumstances where: 1) either a) the investigation is of a violation of civil rights or intellectual property rights and the lawyer believes in good faith that such violation is taking place or will take place imminently, or b) the dissemblance is expressly authorized by law; 2) the evidence sought is not reasonably available through other lawful means; 3) the lawyer's conduct and the investigators' conduct that the lawyer is supervising do not otherwise violate the Code (including, but not limited to, DR 7-104, the “no-contact” rule) or applicable law; and 4) the dissemblance does not unlawfully or unethically violate the rights of third parties.

Notably, “dissemblance” in this context included concealment or misstatement of identity and purpose in the process of evidence gathering.

The New Privacy

The online social media phenomenon begs the question: How private is a social networking profile where a friend's list could fill Yankee Stadium? See, “How Many Friends Is Too Many?” Newsweek, May 26, 2008. Online culture is an estate of compromise, where privacy gives ground to community building. A social network cannot function unless its members relinquish some personal space-making obscurity as a substitute for privacy. In essence, social networking sites are quasi-public.

Studies have illustrated that users seeking to create online identities, form relationships or join networks knowingly expose themselves and their friends and families to the scrutiny of people they have never met or intended to meet. See generally, “Saving Facebook,” 94 Iowa L. Rev 1137, 1197 (2009). And it carries implications for the practice of law. For example, a Canadian judge observed that a litigant with 366 friends could not contend that his profile was intended to be private. See, Murphy v. Perger, (2007) O.J. No. 5511 (Ontario Super. Ct Just. Oct. 3, 2007); see generally, “Fessing Up to Facebook: Recent Trends in the Use of Social Network [Web sites] for Insurance Litigation,” SSRN, March 3, 2009, at 6 (available at http://ssrn.com/abstract=1352670).

The reality of public privacy in social networking sites blunts the absolutist view of online privacy underlying the Philadelphia bar committee's opinion.

Criminal Law Practice

The lodestars of due process, effective assistance of counsel and the right to present a defense, guide every criminal defense investigation and discovery request. Yet, the ethical and legal exceptions carved out for undercover work have not directly addressed these constitutional beacons. Are a defendant's rights to counsel and due process less important than uncovering housing discrimination or trademark infringement?

In the absence of clear-cut guidelines or precedent, covert online investigation must be analyzed on a case-by-case basis. In an oft-cited law review article, attorneys David B. Isbell and Lucantonio N. Salvi developed a framework for examining these issues that might be useful in future cases. See, “Ethical Responsibility of Lawyers for Deception by Undercover Investigators and Discrimination Testers,” 8 Geo. J. Legal Ethics 791 (1995).

Their analysis begins with the premise that undercover investigations performed by private attorneys and their employees or associates are aimed toward a laudable purpose or societal good.

In the criminal context, this translates into the prevention of wrongful conviction and promotion of fair trials. Effectively representing an accused and presenting a defense are essential to the administration of justice and the stability of society. See generally, “Final Report of the New York State Bar Association's Task Force on Wrongful Convictions” (April 4, 2009); and “Strengthening Forensic Science in the United States: A Path Forward” (N.R.C. 2009).

Next, the evidence to be gathered could not be acquired by other means, e.g., discrimination testing.

The content on social networking sites is as unique as the people who post it. And like all online sources, these profiles are transitory and their content easily altered or removed. In other words, they may contain evidence “not reasonably available through other lawful means.” Isbell and Salvi's thorough and insightful interpretation of the model rules led them to conclude:

[T]he pertinent rules simply do not prohibit a lawyer's involvement with testers or investigators making misrepresentations only of the kinds here under consideration ' namely, misrepresentations as to identity or purpose, made solely for purposes of discovering information. “Ethical Responsibility,” 8 Geo. J. Legal Ethics at 811.

Of course, this analysis did not condone a blanket exemption. The “nature of the misrepresentations” and the “circumstances in which they are made” are always factors. According to the authors, if the dissembling was limited to identity and purpose in order to collect information to be used in litigation, no violence was done to the model rules. Id. at 829.

At this point, no authority has squarely addressed this question in the context of defense investigation of online social networking profiles.

Reciprocal Discovery

Still, there are many compelling reasons for undercover discovery of digital and online evidence, such as exploring the veracity of a government witness. See, e.g., NYSBA Comm. on Prof. Ethics Op. 402 (1975) (not improper to employ investigator to befriend key prosecution witness to ascertain truthfulness of testimony).

In Office of Lawyer Regulation v. Hurley, No. 2007AP478-D (Wis. Sup. Ct. Feb. 11, 2009), a Wisconsin attorney confronted the ethical quandaries raised by using undercover investigation in a case where the victim claimed the defendant forced him to view child pornography. The attorney sought exculpatory material from the complainant's computer to show that he had the ability and inclination to view illicit images on his own.

The lawyer suspected that if put on notice, the complainant might destroy information on his computer that would expose his misconduct. He hired a private investigator to carry out a pretense, a computer swap offer, to acquire the victim's laptop temporarily for examination. Forensic analysis revealed many illicit pornographic images.

A complaint was filed against defense counsel for violating the equivalents of Rule 4.1, making a false statement to a third person, and Rule 8.3, engaging in dishonesty, fraud, deceit or misrepresentation.

Ultimately, the Supreme Court of Wisconsin affirmed a referee's finding that the attorney had not violated any ethics rules. There was no rational distinction between the prosecutor's use of undercover investigative techniques and the defense need to acquire information in pursuit of their client's constitutional rights.

Recognizing the deference accorded law enforcement in utilizing deception in criminal investigations, the court found:

Neither of them [Director of Office of Lawyer Regulation or Prosecutor] could point to any Wisconsin precedent drawing a distinction between prosecutors and other attorneys in that regard, and the record demonstrates that there was wide belief in the Wisconsin Bar that the type of conduct engaged in by Attorney Hurley was acceptable.

In an article reviewing developments in this area of ethics, the author questioned the efficacy of the Philadelphia bar committee opinion against the background of New York and Wisconsin's treatment of similar issues:

The Hurley case may supply an argument justifying the conduct of one pretexting attorney, expanding on NYC Bar Op. 2003-2 [undisclosed taping of conversations by lawyers] and NYCLA Op. 737 [non-government lawyer use of investigator who employs dissemblance], but it may not be an airtight defense to discipline that will apply in all situations. See, “Report on Pretexting ' Recent Cases & Ethics Opinions,” NY Prof. Resp. Rept., June 2009, at 1, 10.

Repercussions

Disciplinary sanctions, criminal charges for violating terms of use or other federal laws (compare “First 'Pretexting' Charges Filed Under Law Passed After HP Spy Scandal,” Wired, Jan. 9, 2009 with “Judge Acquits Lori Drew in Cyberbullying Case, Overrules Jury,” Wired, July 2, 2009), not to mention the possible suppression of evidence at trial, are a few of the risks inherent in this kind of investigation. See, e.g., Stagg v. New York City Health & Hosp. Corp., 162 A.D.2d 595 (2nd Dep't 1990); and United States v. Hammad, 858 F.2d 834 (2d Cir. 1988) (“government should not have its case prejudiced by suppression of its evidence when the law was previously unsettled in this area”).

On the other hand, case preparation that overlooks social networking evidence may expose an attorney to malpractice or ineffectiveness of counsel claims. See, e.g., People v Bennett, 29 N.Y.2d 462, 467 (1972); accord Lindstadt v. Keane, 239 F.3d 191, 201 (2nd Cir. 2001).

The unevenness of authorities on this point puts defense counsel on the horns of a constitutional dilemma.

Yet, there is a storied line of U.S. Supreme Court decisions that suggest a basis for a constitutional right to access social networking profiles in the preparation of a criminal defense. See generally, “Databases, E-Discovery, and Criminal Law,” 15 Rich. J.L. & Tech. 6 (2009) (available at http://tinyurl.com/yeebe82).

In Wardius v. Oregon, 412 U.S. 470 (1973), the conviction was overturned due to an unbalanced alibi evidence rule that did “not” allow the defense reciprocal discovery of the state's rebuttal witnesses.

And based on the right to present a defense, the Court in Chambers v. Mississippi, 410 U.S. 284, 302 (1973), held that a hearsay rule prohibiting introduction of exculpatory evidence of third party guilt violated due process.

Last, a rule barring a co-participant's testimony in Washington v. Texas, 388 U.S. 14, 19 (1967), while allowing the prosecution the exclusive privilege to present such evidence, ran afoul of the compulsory process clause.

These cases reveal the overarching principles of fairness and reciprocal discovery that ought to apply with equal force to the cyber-extended society created by and accessible to hundreds of millions of people.

Conclusion

The picture of justice cannot be complete while exculpatory evidence hides in plain sight.

Just as new streams of communication and online behavior are becoming mainstays of prosecution cases, the federal Constitution requires defense counsel to vigilantly confront and explore these new avenues of evidence.

Some agreement exists about the value of concealing identity and purpose to conduct discovery in pursuit of civil rights, law enforcement and intellectual property infringement. Meanwhile, as we wait for ethics committees and courts to dilate upon the social importance of undercover work in the online world, attorneys must thoughtfully and cautiously approach this area of discovery.

Social networking sites offer an abundance of exculpatory and impeaching evidence that may not be obtainable without some undercover detective work. Unfortunately, discovery rules and ethical guidelines have not kept pace with the digital sprawl of MySpace and Facebook. In the absence of explicit direction from the Rules of Professional Conduct and the laws governing online behavior, flying a false flag in these uncharted waters may be hazardous. See generally, “Pretexting, Legal Ethics and Social Networking Sites,” LLRX, Oct. 5, 2009.

Deceptive Practices

Before an attorney or investigator considers using subterfuge ' such as concealing his or her true identity and purpose to contact a witness through an online profile ' he or she ought to be mindful that legal and ethical precedents on this subject are slow in coming.

Historically, surreptitious investigation has found some validation in the arenas of law enforcement, civil rights and intellectual property infringement. Still, there is a scarcity of ethical and legal authorities outside these specific areas and only recently has online covert investigation begun to draw attention.

In March, the Philadelphia Bar Association's Professional Guidance Committee issued what appears to be the first ethics opinion (2009-02) categorically proscribing lawyers and their associates from using deception in connection with contacting a deponent through her online profiles.

A witness in a civil case revealed during her deposition that she had Facebook and MySpace accounts. The attorney seeking the ethics opinion believed these sites contained information relevant to the case and, in particular, valuable for impeachment. No direct questions were posed to the witness about the contents of the accounts.

Access to the witness' pages was by permission only. The attorney asked the committee whether it would be allowable to ask someone to “friend” the witness without disclosing his affiliation or purpose. All identifying and other information would be truthful.

Noting the responsibility of lawyers for the behavior of investigators, the committee found that the proposed actions would constitute misconduct under Rule 8.4 prohibiting “dishonesty, fraud, deceit or misrepresentation.” Therefore, “friending” the witness without revealing that the purpose of the contact was to gain access to private areas of her profile constituted an act of “deception.”

The lawyer's concern over the witness' reluctance to otherwise permit access did not soften the nature of the concealment. Even if the witness had a liberal practice of accepting friend requests, running the risk that someone might take advantage of the information in her profiles, it did not temper the result.

Acknowledging the conflicting views on covert investigation, the committee declined to recognize an exception along the lines of the ones found in New York and other states ethics opinions and court decisions.

New York Exception

In Opinion 737, the New York County Lawyers' Association's Committee on Professional Ethics developed this approach in response to a question about private attorney pretexting:

Non-government attorneys may ' ethically supervise non-attorney investigators employing a limited amount of dissemblance in some strictly limited circumstances where: 1) either a) the investigation is of a violation of civil rights or intellectual property rights and the lawyer believes in good faith that such violation is taking place or will take place imminently, or b) the dissemblance is expressly authorized by law; 2) the evidence sought is not reasonably available through other lawful means; 3) the lawyer's conduct and the investigators' conduct that the lawyer is supervising do not otherwise violate the Code (including, but not limited to, DR 7-104, the “no-contact” rule) or applicable law; and 4) the dissemblance does not unlawfully or unethically violate the rights of third parties.

Notably, “dissemblance” in this context included concealment or misstatement of identity and purpose in the process of evidence gathering.

The New Privacy

The online social media phenomenon begs the question: How private is a social networking profile where a friend's list could fill Yankee Stadium? See, “How Many Friends Is Too Many?” Newsweek, May 26, 2008. Online culture is an estate of compromise, where privacy gives ground to community building. A social network cannot function unless its members relinquish some personal space-making obscurity as a substitute for privacy. In essence, social networking sites are quasi-public.

Studies have illustrated that users seeking to create online identities, form relationships or join networks knowingly expose themselves and their friends and families to the scrutiny of people they have never met or intended to meet. See generally, “Saving Facebook,” 94 Iowa L. Rev 1137, 1197 (2009). And it carries implications for the practice of law. For example, a Canadian judge observed that a litigant with 366 friends could not contend that his profile was intended to be private. See, Murphy v. Perger, (2007) O.J. No. 5511 (Ontario Super. Ct Just. Oct. 3, 2007); see generally, “Fessing Up to Facebook: Recent Trends in the Use of Social Network [Web sites] for Insurance Litigation,” SSRN, March 3, 2009, at 6 (available at http://ssrn.com/abstract=1352670).

The reality of public privacy in social networking sites blunts the absolutist view of online privacy underlying the Philadelphia bar committee's opinion.

Criminal Law Practice

The lodestars of due process, effective assistance of counsel and the right to present a defense, guide every criminal defense investigation and discovery request. Yet, the ethical and legal exceptions carved out for undercover work have not directly addressed these constitutional beacons. Are a defendant's rights to counsel and due process less important than uncovering housing discrimination or trademark infringement?

In the absence of clear-cut guidelines or precedent, covert online investigation must be analyzed on a case-by-case basis. In an oft-cited law review article, attorneys David B. Isbell and Lucantonio N. Salvi developed a framework for examining these issues that might be useful in future cases. See, “Ethical Responsibility of Lawyers for Deception by Undercover Investigators and Discrimination Testers,” 8 Geo. J. Legal Ethics 791 (1995).

Their analysis begins with the premise that undercover investigations performed by private attorneys and their employees or associates are aimed toward a laudable purpose or societal good.

In the criminal context, this translates into the prevention of wrongful conviction and promotion of fair trials. Effectively representing an accused and presenting a defense are essential to the administration of justice and the stability of society. See generally, “Final Report of the New York State Bar Association's Task Force on Wrongful Convictions” (April 4, 2009); and “Strengthening Forensic Science in the United States: A Path Forward” (N.R.C. 2009).

Next, the evidence to be gathered could not be acquired by other means, e.g., discrimination testing.

The content on social networking sites is as unique as the people who post it. And like all online sources, these profiles are transitory and their content easily altered or removed. In other words, they may contain evidence “not reasonably available through other lawful means.” Isbell and Salvi's thorough and insightful interpretation of the model rules led them to conclude:

[T]he pertinent rules simply do not prohibit a lawyer's involvement with testers or investigators making misrepresentations only of the kinds here under consideration ' namely, misrepresentations as to identity or purpose, made solely for purposes of discovering information. “Ethical Responsibility,” 8 Geo. J. Legal Ethics at 811.

Of course, this analysis did not condone a blanket exemption. The “nature of the misrepresentations” and the “circumstances in which they are made” are always factors. According to the authors, if the dissembling was limited to identity and purpose in order to collect information to be used in litigation, no violence was done to the model rules. Id. at 829.

At this point, no authority has squarely addressed this question in the context of defense investigation of online social networking profiles.

Reciprocal Discovery

Still, there are many compelling reasons for undercover discovery of digital and online evidence, such as exploring the veracity of a government witness. See, e.g., NYSBA Comm. on Prof. Ethics Op. 402 (1975) (not improper to employ investigator to befriend key prosecution witness to ascertain truthfulness of testimony).

In Office of Lawyer Regulation v. Hurley, No. 2007AP478-D (Wis. Sup. Ct. Feb. 11, 2009), a Wisconsin attorney confronted the ethical quandaries raised by using undercover investigation in a case where the victim claimed the defendant forced him to view child pornography. The attorney sought exculpatory material from the complainant's computer to show that he had the ability and inclination to view illicit images on his own.

The lawyer suspected that if put on notice, the complainant might destroy information on his computer that would expose his misconduct. He hired a private investigator to carry out a pretense, a computer swap offer, to acquire the victim's laptop temporarily for examination. Forensic analysis revealed many illicit pornographic images.

A complaint was filed against defense counsel for violating the equivalents of Rule 4.1, making a false statement to a third person, and Rule 8.3, engaging in dishonesty, fraud, deceit or misrepresentation.

Ultimately, the Supreme Court of Wisconsin affirmed a referee's finding that the attorney had not violated any ethics rules. There was no rational distinction between the prosecutor's use of undercover investigative techniques and the defense need to acquire information in pursuit of their client's constitutional rights.

Recognizing the deference accorded law enforcement in utilizing deception in criminal investigations, the court found:

Neither of them [Director of Office of Lawyer Regulation or Prosecutor] could point to any Wisconsin precedent drawing a distinction between prosecutors and other attorneys in that regard, and the record demonstrates that there was wide belief in the Wisconsin Bar that the type of conduct engaged in by Attorney Hurley was acceptable.

In an article reviewing developments in this area of ethics, the author questioned the efficacy of the Philadelphia bar committee opinion against the background of New York and Wisconsin's treatment of similar issues:

The Hurley case may supply an argument justifying the conduct of one pretexting attorney, expanding on NYC Bar Op. 2003-2 [undisclosed taping of conversations by lawyers] and NYCLA Op. 737 [non-government lawyer use of investigator who employs dissemblance], but it may not be an airtight defense to discipline that will apply in all situations. See, “Report on Pretexting ' Recent Cases & Ethics Opinions,” NY Prof. Resp. Rept., June 2009, at 1, 10.

Repercussions

Disciplinary sanctions, criminal charges for violating terms of use or other federal laws (compare “First 'Pretexting' Charges Filed Under Law Passed After HP Spy Scandal,” Wired, Jan. 9, 2009 with “Judge Acquits Lori Drew in Cyberbullying Case, Overrules Jury,” Wired, July 2, 2009), not to mention the possible suppression of evidence at trial, are a few of the risks inherent in this kind of investigation. See , e.g. , Stagg v. New York City Health & Hosp. Corp. , 162 A.D.2d 595 (2nd Dep't 1990); and United States v. Hammad , 858 F.2d 834 (2d Cir. 1988) (“government should not have its case prejudiced by suppression of its evidence when the law was previously unsettled in this area”).

On the other hand, case preparation that overlooks social networking evidence may expose an attorney to malpractice or ineffectiveness of counsel claims. See , e.g. , People v Bennett , 29 N.Y.2d 462, 467 (1972); accord Lindstadt v. Keane , 239 F.3d 191, 201 (2nd Cir. 2001).

The unevenness of authorities on this point puts defense counsel on the horns of a constitutional dilemma.

Yet, there is a storied line of U.S. Supreme Court decisions that suggest a basis for a constitutional right to access social networking profiles in the preparation of a criminal defense. See generally, “Databases, E-Discovery, and Criminal Law,” 15 Rich. J.L. & Tech. 6 (2009) (available at http://tinyurl.com/yeebe82).

In Wardius v. Oregon , 412 U.S. 470 (1973), the conviction was overturned due to an unbalanced alibi evidence rule that did “not” allow the defense reciprocal discovery of the state's rebuttal witnesses.

And based on the right to present a defense, the Court in Chambers v. Mississippi , 410 U.S. 284, 302 (1973), held that a hearsay rule prohibiting introduction of exculpatory evidence of third party guilt violated due process.

Last, a rule barring a co-participant's testimony in Washington v. Texas , 388 U.S. 14, 19 (1967), while allowing the prosecution the exclusive privilege to present such evidence, ran afoul of the compulsory process clause.

These cases reveal the overarching principles of fairness and reciprocal discovery that ought to apply with equal force to the cyber-extended society created by and accessible to hundreds of millions of people.

Conclusion

The picture of justice cannot be complete while exculpatory evidence hides in plain sight.

Just as new streams of communication and online behavior are becoming mainstays of prosecution cases, the federal Constitution requires defense counsel to vigilantly confront and explore these new avenues of evidence.

Some agreement exists about the value of concealing identity and purpose to conduct discovery in pursuit of civil rights, law enforcement and intellectual property infringement. Meanwhile, as we wait for ethics committees and courts to dilate upon the social importance of undercover work in the online world, attorneys must thoughtfully and cautiously approach this area of discovery.