The law, social media and investigations roy mura - i-sight ii

The Law, Social Media and Investigations

930 Rand Building
14 Lafayette Square
Buffalo, New York 14203
716.855.2800 (V)
716.855.2816 (F)
roy.mura@muralaw.com
nycoveragecounsel.blogspot.com
linkedin.com/in/royamura
twitter.com/royamura
twitter.com/CoverageCounsel

Roy A. Mura, Esq.
MURA & STORM, PLLC

Click to edit Master title style
Introduction

• Roy Mura
Click to edit Master text styles
- fdsfds Roy Mura is the founder and managing member of law firm Mura & Storm,
PLLC. He has successfully litigated and tried insurance fraud and coverage
cases for insurers through trial and appeal in New York and writes and speaks
regularly for insurers, adjusters and investigators on various issues relating to
insurance coverage, fraud, “bad faith” and the defense of first- and third-party
claims. He also serves as General Counsel to the New York State Chapter of
the International Association of Special Investigation Units.

Joe Gerard

Joe Gerard is the VP of Sales & Marketing at i-Sight, a leading provider
of web-based case management software for corporate investigations.
He’s worked with companies like Dell, Coke, Allstate, BP and more than
100 others to implement improved investigative processes that leverage
best practices and case management.


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Episode 52

Mura & Storm, PLLC ▪ Buffalo, NY ▪ 716.855.2800

Social media’s role in Steubenville case, NBC
Nightly News 03.17.13
“I really wonder had it
- fdsfds not been for social media
would we be sitting here tonight talking about
convictions in this case.”
Lisa Green, Legal Analyst


Nathalie Blanchard v. Manulife

Fall 2009 – Long-term disability benefits for diagnosed major
 - fdsfds
depression discontinued after Manulife obtained photos from
Blanchard’s protected Facebook account

 She claimed she was trying to have fun on the advice of her
treating doctor.
 Friends-only Facebook pages



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Poll Question #1


The objective of SM research is…

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F S U


The process of…


 Finding
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 Securing
 Utilizing


FSUing…

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T I M

Which are…


 Text
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 Images
 Metadata


TIM that…

 …tend to confirm or
- fdsfds refute insurance policy
application representations.
 …tend to confirm or refute the reported facts of an
incident, loss or claim.
 …reflect positively or negatively on the employee’s,
insured’s or claimant’s credibility.
 …provide leads for further investigation or items for
further conversation with the person under
investigation.
 …are admissible in court or arbitration.



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“The problem with quotes
on the Internet is that you
never know if they’re
real.”

~~ Abraham Lincoln


So really, the process is…

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F S (V) U

Most Popular SN Sites by Hits

May 2010 October 2012 February 2013
- fdsfds
1. Facebook Facebook Facebook
2. MySpace Twitter Twitter
3. Twitter LinkedIn LinkedIn
4. LinkedIn MySpace Pinterest
5. Ning Google+ MySpace
6. Tagged deviantArt Google+
7. Classmates LiveJournal deviantArt
8. hi5 Tagged LiveJournal
9. myYearbook Orkut Tagged
10. Meetup Pinterest Orkut


7 Up-and-Coming SNs

1. -Pheed
fdsfds

2. Thumb

3. Medium

4. Hootsuite’s Conversations

5. Chirpify

6. Flayvr

7. Chirp

Tweeted Photos in 2011

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YouTube Demographics

Click to edit Master text styles uploaded every minute.
72 hours of video are

•
 -3 fdsfds of video is uploaded per minute from mobile
hours
devices.
 Traffic from mobile devices tripled in 2011.
 In 2011, YouTube had more than 1 trillion views or
around 140 views for every person on Earth.
 500 years of YouTube video are watched every day on
Facebook, and over 700 YouTube videos are shared
on Twitter each minute
 Over 4 billion hours of video are watched each month.
 Considered to be the second most used search engine
in the world.




2.8
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What is the average number of social networking
accounts most persons have.


Why Are SocialMaster title style to
Click to edit Network Sites Useful
Investigators?
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Private Public



A - fdsfds
fully filled-out Facebook profile contains about
40 pieces of recognizably personal information,
including name, birthday, political and religious
views, online and offline contact information,
gender, sexual preference and relationship status,
favorite books, movies, etc., educational and
employment history, and, of course, the user’s
picture.


Top 3 Legal Areas in Which Social Media
Content is Used
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 Matrimonial/Family Law

 Employment Law

 Personal Injury/Insurance Law


Most people interact with the Internet to…

•Click to edit Master text styles
 - fdsfds
…buy or sell things

 …review or comment on things

 …publish themselves

 …socialize


Sources of Useful SM Content

• Socialedit Master text styles
Click to networking sites
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 Photo sharing sites

 Buying/selling sites

 Bulletin boards

 Consumer review sites

 Comment strings


Searching SNS Anonymously

 - fdsfds for anonymity
Need depends on the kind of site

 Methods for anonymizing SNS visits:
 Proxy anonymizing software or hardware
 Alternate, unidentifiable account profiles


Who’s Looking at Me?

Canfdsfds Master text styles ’s been looking at their
•
users see who
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-
profiles?
Friendster YES
Ziggs YES
Facebook MAYBE
MySpace NO
Twitter NO
LinkedIn DEPENDS

LinkedIn

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LinkedIn Profile Viewing

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Anonymous Web Surfing
 Click to edit Master text styles URL:
• Web-based per
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 Anonymouse
 Ninja Proxy
 HideMyAss
 Software-based browser add-ons:
 Tor
 Hardware:
 IronKey®



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Poll Question #2


Usefulness of SM Content

The usefulness of SM content will depend
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on its:

1.verification to the purported creator or
source.


Verification of SM Content or Data

•
Three edit Master text styles
Click to
ways:
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1.An acknowledgement by its creator that it's
his or hers.

2.Forensic computer evidence linking the
material to the purported author.

3.Circumstantial evidence establishing that the
material was in fact created by the person
whose name or image the material relates to.

Admissibility of SM Content

The admissibility of SM content will depend
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on its:
1.authenticity or reliability; and
2.relevance.


Authentication of SM Content

How the content is secured
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will affect the
authenticity/reliability prong of the admissibility
test.

SM content thought to be relevant can be
secured in either of two forms:
1. electronic
2. paper


Securing Content from SN Sites

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 Unprotected Content

 Protected Content


Securing Unprotected Content

Printing to paper
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 Printing to PDF or another electronic
file format
 Downloading images
 Screen shot & video captures
 Digital evidence recorders, e.g.,
Camtasia Studio & Screenr
 Website copiers, e.g., HTTrack

Securing Protected Content

- Voluntary production by insured/claimant
 fdsfds
 Authorization from user
 Disclosure by persons with access
 Honest friending
 Fake friending or other pretextual means
 Discovery in litigation
 Subpoena


Facebook Content Download

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When you download your information your file will include:
•Your profile (timeline) information (ex: your contact information, interests, groups)
•Wall (timeline) posts and content that you and your friends have posted to your profile
(timeline)
•Photos and videos that you have uploaded to your account
•Your friend list
•Notes you have created
•Events to which you have RSVP’d
•Your sent and received messages
•Any comments that you and your friends have made on your Wall (timeline) posts,
photos, and other profile (timeline) content

Pretexting


The use of impersonation or fraud to trick another
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person into releasing personal information.

An effort or strategy intended to conceal
something.


Is Pretexting Permitted?

NO – The US Gramm-Leach-Bliley Act prohibits pretexting
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[defined in the Act as the use of false pretenses, including
fraudulent statements and impersonation] to obtain consumers’
personal financial information.

NO – Similarly, under the Fair Debt Collection Practices Act (15
USC 1692e(10)) “the use of any false representation or
deceptive means to collect or attempt to collect any debt or to
obtain information concerning a consumer” is violative of the Act.

NO – One state explicitly prohibits investigative pretexting. Be
aware of and follow your company’s policy on pretexting in
investigations.


Is Pretexting Permitted? (cont.)

NO – Facebook’s Terms of Service prohibit
•
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providing any false personal information, create an
account for anyone other than yourself without
permission, or creating more than one personal
profile.

NO – MySpace’s Terms of Service prohibit
impersonating or attempting to impersonate any
person or entity.


“Pretext Interview”

The -NAIC Model Act defines a pretext interview as:
fdsfds

"an interview whereby a person, in an attempt to obtain information
about a natural person, performs one or more of the following acts:

1) pretends to be someone he or she is not;
2) pretends to represent a person he or she is not in fact representing;
3) misrepresents the true purpose of the interview; or
4) refuses to identify himself or herself upon request.”


Hacking & Anti-Impersonation Statutes
The FederalMaster text styles
• Click to edit Computer Fraud and Abuse Act makes it
criminal to “intentionally access … a computer without
- fdsfds
authorization or exceed ... authorized access.”
United States v. Lori Drew, 259 F.R.D. 449 (C.D. Cal.
2008).

Two states – California and Texas – prohibit impersonating
someone online without that person’s consent.
Cal. Penal Code § 528.5 (“… actual person … for purposes
of harming, intimidating, threatening, or defrauding another
person”)
Tex. Penal Code Ann. § 33.07 (“… with the intent to harm,
defraud, intimidate, or threaten any person)

Pretexting by Insurance Investigators

The National Association of Insurance Commissioner's
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Insurance Information and Privacy Protection Model Act
(NAIC 670-1) states:

No insurance institution, agent or insurance support organization shall
use or authorize the use of pretext interviews to obtain information in
connection with an insurance transaction; provided, however, a pretext
interview may be undertaken to obtain information from a person or
institution that does not have a generally or statutorily recognized
privileged relationship with the person about whom the information
relates for the purpose of investigating a claim where, based upon
specific information available for review by the commissioner, there is a
reasonable basis for suspecting criminal activity, fraud, material
misrepresentation or material non-disclosure in connection with the
claim.


Legal in US for Master title style Content
Click to edit Insurers to Gain SM
by Pretextual Means?
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No- statutes
fdsfds

regulations
case law
saying it is or is not legal.

Yet…


Pretextto edit Master title US with Fraud
Click Interview Statutes in style
Exception
•AZClick to edit Master text styles
– Arizona Revised Statutes - Title 20 Insurance - Section 20-2103
CA - fdsfds
– California Insurance Code Section 791.03
CT – Connecticut Statutes Sec. 38a-978
GA – Georgia Code - Insurance - Title 33, Section 33-39-4
IL – Illinois 215 ILCS 5 Illinois Insurance Code. Section 1004
ME – Maine 24-A M.R.S. § 2205
MA – Massachusetts ALM GL ch. 175I, § 3
MT – Montana Code Anno., § 33-19-201
NJ – New Jersey Statutes 17:23A-3
NC – North Carolina General Statutes § 58-39-20
OH – Ohio Revised Code - Title XXXIX Insurance - Section 3904.03
OR – Oregon State Statutes, § 746.615
VA – Code of Virginia - Title 38.2 Insurance - Section 38.2-603


Pretexting Prohibited

Minnesota Statutes Annotated 72A.493 - Obtaining
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Information by Improper Means
An insurer, insurance agent, or insurance-support
organization must not obtain information or authorize
another person to obtain information in connection with an
insurance transaction by:
1) pretending to be someone else;
2) pretending to represent a person;
3) misrepresenting the true purpose of the interview; or
4) refusing to provide identification upon request.



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Poll Question #3


Subpoenas

 Click to edit Master text styles
•
Criminal
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 Civil
 In general
 Facebook
 MySpace

In general, Facebook and other SN providers are no
longer providing content of a person’s SN
account pursuant to civil subpoenas.


Is SNS Content Private?

“I agree that material posted
- fdsfds on a ‘private’
Facebook page, that is accessible to a selected
group of recipients but not available for viewing by
the general public, is generally not privileged, nor
is it protected by common law or civil law notions
of privacy.[1]”
Tompkins v. Detroit Metropolitan Airport,
Case No. 10-10413 (E.D.Mich. decided 1/18/2012)
See, also, Davenport v. State Farm, Case No. 3:11-cv-632-J-JBT (M.D.
FL decided 2/21/2012)(“Generally, SNS content is neither privileged
nor protected by any right of privacy.”)


Is SNS Content Private? (cont.)

“If you post a tweet, just like if you scream it out
•
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the window, there is no reasonable expectation of
privacy. There is no proprietary interest in your
tweets, which you have now gifted to the world. * *
* There is no reasonable expectation of privacy for
tweets that the user has made public. It is the act
of tweeting or disseminating communications to
the public that controls.”
People v. Harris, 2012 NY Slip Op 22175 (NYC Crim. Ct., NY Co., June
30, 2012)


Is SNS Content Private? (cont.)

“When a person creates
- fdsfds
a Facebook account, he
or she may be found to have consented to the
possibility that personal information might be
shared with others, notwithstanding his or her
privacy settings, as there is no guarantee that the
pictures and information posted thereon, whether
personal or not, will not be further broadcast and
made available to other members of the public.
Loporcaro v. City of New York, 2012 Slip Op 30977(U) (Sup. Ct.,
Richmond Co., April 9, 2012)


Discoverability of Private SN Info

• Many USMaster text stylesCanadian courts have
Click to edit and some
permitted the discovery of protected SM content.
- fdsfds

To be enforceable, the discovery demand must
be both:

(1) narrowly tailored to produce relevant
information; and
(2) reasonably calculated to lead to the discovery
of admissible evidence.

Discoverability of Private SN Info (cont.)

Relevant information in the
- fdsfds private section of a social
media account is discoverable. Glazer v. Fireman's Fund
Insurance Company, 2012 WL 1197167, *3-*4 (S.D.N.Y.
April 5, 2012). It is not privileged nor protected from
production by a common law right of privacy. Tompkins v.
Detroit Metropolitan Airport, 278 F.R.D. 387, 388 (E.D.
Mich. 2012). But a litigant has no right to serve overbroad
discovery requests that seek irrelevant information.
Glazer, above; Tompkins, 278 F.R.D. at 389.

Howell v. The Buckeye Ranch (S.D. Ohio 10/1/2012)


Discoverability of Private SN Info (cont.)

“The Plaintiff has text styles Facebook privacy settings to
• Click to edit Master set her
- fdsfds
private and has restricted its content to 67 ‘friends.’ She
has not created her profile for the purpose of sharing it with
the general public. Unless the Defendant establishes a
legal entitlement to such information, the Plaintiff ’s privacy
interest in the information in her profile should be
respected.”

Schuster v. Royal & Sun Alliance Ins. Co. of Canada, 2009
CanLII 58971 (ON SC)(October 29, 2010)


Spoliation of ESI

• SM data representsstyles
Click to edit Master text electronically stored information(ESI).
- fdsfds
Parties in control of their own ESI are obligated to
preserve it in the event civil disputes develop into
lawsuits, especially if they are placed on notice of the
obligation to do so.

Plaintiff … has been on notice that defendants seek
information in the private sections of her social media
accounts since being served with defendants' second set
of interrogatories. She remains under an obligation to
preserve all the information in those accounts.
Howell v. The Buckeye Ranch (S.D. Ohio 10/1/2012)

Questions or Comments?

Roy A. Mura, Esq
MURA & STORM, PLLC
roy.mura@muralaw.com

Joe Gerard
Vice-President, Marketing and Sales
i-Sight Software
j.gerard@i-sight.com

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