How social media is changing laws & investigations

Krystal Peak · November 21, 2011 · Short URL:

The data shared on social media could be used against you in legal battles

Privacy and social networking have been at odds since the early days of MySpace and Facebook. Most people now know that employers are savvy Internet trollers that check to see if prospective employees have an unflattering Facebook presence. But what many people don’t realize is that their social profiles (private or not) could come back to hurt them if they find themselves in a legal situation.

Whether it’s a custody case between parents, a medical malpractice suit, workers compensation or even criminal run-ins, laws and investigations are folding in social networking information at an alarming rate.

Social networking sites can shed light on your parenting

Last week, a group of divorce attorneys from the firm Heath-Newton warned couples, going through a divorce, that their social network could be used as evidence in their court proceedings.

Whether it is excessive photos of a parent drinking to a lack of conversation about the children or family-friendly events, Facebook and other social online activity is being weighed in custody cases.

“The trend began several years ago, and with dramatic consequences. In cases involving Facebook, I’ve heard of couples using photos from each other’s news feed to establish their spouse drinks too much, parties too much, and associates with unsavory individuals,” notes Erik Newton, a partner at Heath-Newton, in a statement. “This evidence can result in one parent losing custody.”

And having a private account is not enough for these types of legal cases since many lawyers are requesting that the court gain access to passwords for the purpose of collecting information on each person in the case – and they are often granted such access.

A Forbes article posted earlier this month revealed that, in one case, a judge ordered both parties to share their passwords to sites such as Facebook, eHarmoney and in the discovery portion of the case.

The attorneys at Heath-Newton strongly suggest that people facing divorce and custody litigation emphasize pictures of their kids; deemphasize pictures of them drinking; and adjust their privacy settings so that others cannot post photos of them without permission.

Because, while the sharing of social network passwords is against some platforms' terms of service agreements, in a court of law (at least for the time you are in a court case), what the judge says, goes.

Are you too injured to party?

Accidents at work might be a risk employees take at certain jobs and, as a result, they have to file for workers compensation or other similar insurance benefits for treatment. These claims can become crippling for insurance companies and the businesses that provide them and so investigations are often launched to insure that people do not abuse the benefits or make false claims.

A new tool for insurance companies to investigate false claims is the online ecosystem known as social networks.

Law professor Gregory Duhl and Associate Editor-in-Chief of The Business Lawyer Jaclyn Millner are two of many that believe insurers should be dedicating more time to scouring social networks online for further proof for claims that are suspected of fraud.

How are insurers using your Facebook or Foursquare against you?

It could be as simple as a picture of a supposedly injured employee on a boat, hiking or taking a vacation during a time when they were receiving medical attention for a work-related injury.

Duhl and Millner published a report, urging insurers to be more Web-savvy in their claim investigations, stating that “often, Facebook evidence will substantiate some other evidence found in an investigation, such as a statement from a co-worker or witness, surveillance such as video, or medical records indicating the claimant is not injured” but sometimes the evidence found on a social networking site could be “the only information found to show insurance fraud would be the social networking evidence itself.”

While this is only likely to be a major concern for workers that are making fraudulent claims or acting in a manner not conducive for a speedy recovery, some attorneys and advocates warn that anything that could paint you in a false light or give the insurer reason to revoke your claim should not be posted at any point near your time of injury or recovery.

Since insurance fraud costs the insurance industry and consumers nearly $54 billion a year, estimated by the Coalition Against Insurance Fraud, companies that investigate into an individual claim will do what is in their power to find any contradictory evidence on your Facebook, Twitter or Foursquare.

The same goes for malpractice suits, according to McLaughlin & Lauricella’s malpractice blog.

The lawyers with M&L, based in Philadelphia and New Jersey, are telling clients to be extra cautious about their social networking activity if they are pressing forward with a malpractice suit.

They say the physician’s lawyers will search across the Internet to find information on the claimant and use any information from posts to pictures to check-ins in order to prove that the patient’s quality of life has not been hindered.

Criminals victimizing through social media

It seems that even sending a criminal to prison doesn’t stop them from victimizing the people that spoke against them in court since many are using social media to scare people beyond the walls of the correction facilities.

In California alone, nearly 11,000 cell phones were confiscated last year – that is up from 260 phones in 2006, according to the California Department of Corrections – and some of those phones were suspected to be the method for witness and victim intimidation.

The problem has gotten so bad, that last month Gov. Jerry Brown signed a bill into law that would increase the fines for people that smuggle phones into prisons -- $5,000 per device.

And inmates found in possession of a mobile device would lose up to 180 days from their early release credit – but no additional time would be added to their sentence and no penalty was imposed for inmates that have no option of early release.

Inmates have been known to access social networking sites from the mobile devices to post messages to family members, harass victims and even plan escapes.

Even the federal Bureau of Prisons has seen the instances of cell phone confiscation double since 2008, to 3,684 last year.

This can be horrifying for victims to hear and make their feeling of safety, once their tormentor is behind bars, crumble.

As the laws scramble to catch up with the ease with which convicted criminals are gaining access to mobile devices, victims may only find solace in ramping up their privacy features or logging off of social sites altogether if they find that harassment is reaching them on that front.

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