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2 things NOT to do while archiving your social media

June 30, 2017 By Hannah Rachel Smith - Cloud Business Development Rep

In 2012, President Obama issued a command for “Building a 21st Century Digital Government,” requiring the use of online and mobile tools to make government services easier to use. Since then, thousands of agencies have been using web and social media tools to achieve the goal of “transparent, participatory, collaborative government”. This is great for creating an open and communicative culture and trust for government, but how do you comply with eDiscovery requests while publishing so much volume on social media?

The three cases below are examples in which social media evidence was inadmissible due to a lack of metadata:

Janssen-Ortho Inc vs. Nocopharm Limited

The expert witness’ affidavit referred to a homepage link and did not specify nor attach any webpage to be presented. The court did not accept it as evidence on the basis that a hyperlink to a homepage was not satisfactory to make the entire site and its contents evidence.

Griffin v. State

During this murder case, messages from Myspace were presented to prove that the defendant’s girlfriend threatened other witnesses not to testify in court. They offered messages sent from her Myspace with a matching profile picture, birthdate and hometown. But because there was no metadata, the investigators could not prove they actually came from her (personal computer or IP address). The profile could have been fake and without being able to show metadata, the evidence could not be used.

Commonwealth v Purdy

Duncan Purdy was convicted of deriving support from the earnings of a prostitute, and maintaining a brothel through a massage parlor. During the investigation, Purdy’s computer from the massage parlor was confiscated and they found 10 email exchanges that showed recruiting messages and offers to customers of illegal services. The Supreme Court later stated “evidence that . . . originates from an e-mail or a social networking Web site such as Facebook or MySpace that bears the defendant’s name is not sufficient alone to authenticate the electronic communication as having been authored or sent by the defendant.”       

Most state rules concerning eDiscovery are based on the Federal Rules of Civil Procedure - FRCP Rule 34(b)(1)(c), and Federal Rules of Evidence - FRE rule 901(a). These state that data integrity and data authenticity are integral for admitable evidence. For social media evidence to be used in court the Federal Rules of Evidence require the following:

  •   Data is presented in EDRM-XML so they can be easily processed in eDiscovery systems
  •  Metadata has to be collected
  •  Digital signature and digital timestamps have to be present in the data to show evidence of data authenticity and integrity
  • Original source code of the social media message, blog, or webpage must be collected

It’s important to ensure that you are properly archiving your social media to avoid nasty litigation and financial penalties for you organization. Here are two examples of mistakes that agencies make:

1.      Printing and filing

Not only is this method expensive and inconvenient, but the records are not an accurate representation of the original content as they do not fulfill requirements for evidence in FOIA requests.

2.      Server back up

Most server backups do not meet the standards required for data integrity and authenticity. The will cost you money through a constant manual backup process, increased storage space, and the inability to index or search.

Agency use of social media will only increase as time moves forward. A Gartner study said that 70% of companies will be using enterprise social media networks by the end of 2017. It is vital that these companies understand effective procedures for archiving their social media and take the necessary steps to stay compliant.

Learn more about Social Media Archiving by attending Tangent’s webinar on July 11th, 12th, or 14th and downloading the DataCove Social whitepaper to learn more about eDiscovery best practices.