“Do you have a Facebook page”?
This question would not have been in a lawyer’s vocabulary 2 or 3 years ago and would likely not have been asked of a client. Facebook (FB) was just a way for kids to stay in touch and friends to reconnect for class reunions. It seemed like a relatively harmless and fun way to stay in touch with your “friends”.
If the answer to the ownership of a Facebook page is yes, you can bet that your client is trying to remember what, if anything, could be on there that would impact the case. While there are ways for your client to download their information from Facebook, how do law enforcement and other agencies get that information? It has become so commonplace that Facebook has issued a set of Guidelines to law enforcement agencies to formally request information and assure that it is handled in a systematic, repeatable manner. Knowing that these Guidelines exist can help you assist your client.
Once a valid request is received by Facebook, it is classified into one of 3 categories: Preservation, Formal, and Emergency. There are distinctions that are important to understand:
Preservation – A preservation request is the lowest request level. A preservation request alerts Facebook to maintain any items in the account for 90 days from the request, until a more formal legal request can be processed if needed. The account is not “frozen”, but any items that might be deleted in the normal course of business will be preserved. Additionally, any items that your client adds or deletes from the account is maintained in a preservation account by FB.
Formal Legal Requests – formal requests are just that; judicial/administrative requests which have the compulsory effect of law. If this follows a preservation request, then the requesting party will receive all information required by law from at least 90 days prior to receipt of the first request.
Emergency Request – Facebook has created a special Emergency Form for situations in which the requesting party believes that “serious bodily harm or death of a person may occur if we do not respond quickly”.
Facebook does not shut down or suspend an account based solely upon a law enforcement request. If the account does not contain false profile information or engage in illegal activity, FB will generally not shut down the account. However, if law enforcement requests that FB not disable the account, they will maintain it for a period of time specified by law enforcement. Information or complaints from other parties may lead FB to disable the account in spite of law enforcement requests.
What information can they obtain?
The data received from FB fits into three categories: basic subscriber/account information; subscriber content; and IP logs.
Basic Subscriber Information includes:
• User ID number
• Email address
• Date and Time of your account’s creation
• The most recent logins, usually the last 2-3 days
• Your phone number, if you registered it
• Profile contact info
• Mini-feed
• Status update history
Subscriber Content is where the real meat resides. Even if your client has been “good” and not posted those pictures of the post rugby game party, one of their “friends identified in this section may have. It includes:
• Shares
• Notes
• Wall posts
• Friends list
• Groups list
• Future and past events
• Videos
• Photos
• Private messages
IP Logs – IP Logs include information on computers and locations that the client accessed the account from. IP log information may not be that helpful or plentiful since literally billions of actions are taking place on FB each day, and logs tracing that activity are routinely recycled. So the timing of the request during the log cycle process is the major factor in whether anything useful may be found. The IP log might help determine whether other parties have illegally accessed a client’s account.
How can this information be used?
Last month, digital rights advocacy group the Electronic Frontier Foundation (EFF) obtained internal documents from the Justice Department and the IRS showing the ways in which social networking is used during investigations. For example, an internal Justice Department presentation explained to employees that using social networking in criminal cases can reveal a suspect's communications or whereabouts, establish motives and personal relationships and prove or disprove alibis.
"We will continue to use publicly available information individuals post online about their illegal activities or false statements to law enforcement officials in our investigations," a spokeswoman for the Department of Justice said. In addition to accessing public information through social media, the Justice Department document explains how going undercover online allows agents to communicate with suspects and targets, gain access to private information and map social relationships and networks.
As long as the information is public on sites like Facebook, LinkedIn and MySpace, it's fair game for law enforcement. Legal measures can and will be made to retrieve private data from site owners such as FB.
I find it fascinating how technology and social media is affecting criminal cases in this day and age. It's most certainly a welcome side effect.
Posted by: Bill Jones | August 22, 2011 at 09:56 AM