Special Thanks to the ABA, ABA TECHSHOW 2017, and Amanda Sexton of On The Lookout Investigations for providing this article for the ABA TECHSHOW 2017 blog. Click here to learn more about ABA TECHSHOW 2017 below and don’t forget to register and save with the South Carolina Bar code EP1710.
Part 1 of 3: Social Media Surveillance
By Amanda Sexton, On The Lookout Investigations
Social media has opened new doors for lawyers when it comes to investigations and process service.
This first post is part of a three-part series designed to walk you through three of the most important uses of social media within investigations and process service including:
- Social media surveillance vs. traditional surveillance
- Service of process via Facebook
- Social media jury screening
Among the many pros of social media, an unexpected one has come up: a low-cost alternative to surveillance for attorneys and their clients.
Surveillance can be expensive, with minimum time frames and sometimes requiring multiple investigators to properly tail a subject. But there’s a cheaper option – powerful programs that dig through social media accounts for useful information.
You can spend anywhere from $1500 for a standard 8-hour day for surveillance with one investigator and with no guarantees the subject will even leave the house, whereas a social media search can be done for as little as $250.
These searches can pull entire profiles while other searches (still MUCH cheaper than surveillance) can create a social media timeline covering hundreds of sites.
Used by private investigators and law enforcement only, these programs can perform some serious magic when it comes to downloading profiles, authenticating and preserving potential evidence and using algorithms to search for specific keywords across profiles with thousands of pages that may be relevant to a case.
Another bonus to social media searches over surveillance – ease of anonymity. What happens if you’re made while following a subject? Forget about it – now they’re onto you. With social media searches there’s the power of remaining anonymous as you browse the internet and deep web searching for pieces of information to pull together to help support or tear apart a case.
While looking through social media profiles, it can be absolutely mind-boggling how much information people share not only about themselves but their friends and family. Social media searches gather all that information and data to create a cheaper alternative to surveillance.
Part 2 of 3: Service of Process Via Facebook: Alternate Service Method
While cases involving service of process via Facebook are still the exception, courts in the United States certainly do seem to be warming up to the idea based on opinions and use of precedent.
Since the issuing of the first court order in the United States approving Facebook as a means of alternate service in Mpafe v. Mpafe in 2011, several cases have followed suite. In all of them the same issues have come up:
- How do we know this is the correct individual?
- Has there been contact with the individual through this Facebook account? Is the e-mail address connected to this account validated as belonging to the subject? Do the friends and family reflect that of the subject?
- How certain are we they will see the notice?
- How often is the subject on Facebook? Are there frequent posts or frequent message communications?
- Why does this make sense as opposed to another method of alternate service?
- Is there no known address for the subject? Has due diligence been completed and have attempts at personal service been exhausted?
What does this mean for the future of service of process?
It’s important to note that in each case service via Facebook has taken place by court order, after initial service or because personal service couldn’t be attempted. Given due process rights, personal service has remained the preferred method of service.
Given how unlikely it is individuals will ever see a publication, the high cost involved and the purpose of alternate service in due process rights, more courts are seeing Facebook as a viable means of alternate service of the subject.
In Baidoo v. Blood-Dzraku, the court opinion noted:
“In divorce cases brought in New York County, plaintiffs are often granted permission to publish the summons in such newspapers as the New York Law Journal or the Irish Echo. If that were to be done here, the chances of defendant, who is neither a lawyer nor Irish, ever seeing the summons in print, either in those particular newspapers or in any other, are slim to none.”
When it comes to serving internationally judges are also approving the use of Facebook service, particularly in countries who are signatories to the Hague Convention of the Service Abroad of Judicial and Extrajudicial Documents. FTC v. PCCare 247, Inc. was the first international case where it was determined that because the country hadn’t objected to Article 10(a) and service by postal channels or to service via electronic means, then service via Facebook was allowable. Since then judges have relied on this precedent in other cases.
There are many nuances involved in each of the cases where alternate service via Facebook was granted, but the underlying theme is the same – courts are becoming more open to technology and the idea of Facebook as a method of alternate service where the subject may actually see the notice over traditional publication.
Part 3 of 3: Jury Screening Using Open Source Intelligence
Would you choose a juror whose Facebook was full of racist posts?
How about a juror with an Instagram account filled with substance abuse?
Or a juror who tweets about harsh prison sentences, religion, or political affiliations?
In today’s share-everything social media world, lawyers and private investigators have more budget-friendly options available when it comes to jury screening.
With the release of ABA Formal Opinion 466 in 2014, lawyers are free to research potential jurors online with no repercussions (as long as they don’t send an access request). This means lawyers can also ethically and legally use an investigator who utilizes Open Source Intelligence (OSINT) to go beyond Google to gain insight into a potential juror.
With more than 60% of potential jurors having social media profiles, this means there’s a wealth of information waiting out there on more than half of any potential jury.
Previously private investigators had to go through more typical “gum-shoe” investigations to gather information on a potential juror. This involved calling old employers, friends and family members, looking through old records and county court searches.
As technology has moved forward, many private investigators have moved out of the field and behind a computer, utilizing databases, algorithms and OSINT techniques to get the information they need. For lawyers, this means jury screening has become much more affordable to conduct.
While potential juror questionnaires can give some insight, information found on social media can help uncover biases and give you a rough sketch of the individual’s political leanings, opinions and personality.
Every trial attorney knows how important jury selection is to the outcome of a case. The use of OSINT techniques by private investigators and the ability to create a cost-effective, detailed work-up of a potential juror is just one of the many positive impacts technology has had on the legal community.
Amanda Sexton, Director of Corporate Development: On The Lookout Investigations
Amanda Sexton is the Director of Corporate Development at On The Lookout Investigations and DGR –The Source for Legal Support, winners for the past three years of the New Jersey Law Journal’s annual ‘Best Of’ survey. She is currently President of the New Jersey Professional Process Servers Association, a board member of the Legal Vendors Network and attends local and national conferences and training sessions to stay on top of the latest techniques and regulations for both process service and private investigations, including online investigations and social media surveillance.
Amanda blogs at www.dgrlegal.com/blog and www.otlollc.com/private-investigations-blog and can be reached at firstname.lastname@example.org.