Posting on Social Networks

Social Networking – If You Post It – You Own It!

Two weeks following Joshua Lipton being charged in a drunken driving crash that seriously injured a woman, the 20 year old college junior attended a Halloween party dressed as a prisoner.  Pictures from the party showed him in a black-and-white striped shirt and an orange jumpsuit labeled “Jail Bird.”  Want to guess what happened to those pictures?  This is a perfect example of a teenager who does not realize the consequences of his actions.

The Pew Internet & American Life Project reports that 66 percent of internet users under the age of 30 have a social networking profile. found that 37 percent of employees they surveyed did as well.  By contrast, only 9.5 percent of potential hires have criminal convictions.

Social networking activity can be quite revealing.  As more and more people post information on social networking sites, attorneys are increasingly seeking discovery of such evidence, which is being gathered for use in both civil and criminal trials.  Most social networking sites typically have public and private components.  Anyone who logs on to a site can view a person’s public profile and many private profiles can be viewed if the seeker is diligent or knows a back or alternative way to access the site.

Two recent cases that have dealt directly with social networking website evidence are Mackelprang v. Fidelity National Title Agency of Nevada, Inc., wherein the defendant in a sexual harassment case sought to compel production of emails from accounts, arguing that the plaintiff sent private messages on MySpace to facilitate the same types of electronic and physical relationship she characterized as sexual harassment in her complaint.  While the court ruled the requests in this case were improper, in more compelling cases litigants have obtained admissible evidence from such websites.  In Ohio v. Gaskin, the defendant, charged with statutory rape, sought to introduce evidence that the victim held herself out on MySpace as an eighteen-year old.  The trial court admitted evidence posted on her site, and allowed a witness to testify as to the authenticity.

Online networks can be used by law firms and criminal investigators to cull various types of information, including, but not limited to:

  1. Developing personal information on a witness’ such as marital status, education, dating habits, significant life events, sexual preferences and likes and dislikes.
  2. Piecing together background on adoptees through genealogy sites, adoption discussion Web sites and blog comments.
  3. Finding and locating insurance claimants and defendants in lawsuits.
  4. Reviewing captions in photographs to identify family members, former lovers, employment status and location, assets, accidents, injuries, etc.
  5. Identifying married partners who are looking to have affairs.
  6. Identifying suspects in criminal investigations.
  7. Gathering evidence in divorce cases.

Social networking sites can also be useful in cases involving computer crimes, such as threats, as well as fraud and sex-related crimes.  At the state level, Probation Officers may have an employee who checks the activity of juvenile probationers on Facebook to determine what mischief they may be planning.

Social networking sites have been useful in helping criminal investigators identify persons involved in child pornography rings and child enticement cases.

The top 10 visited social network sites are as follows:

It is important to be aware that if it shows up on the internet under your name, you just may have to own it and understand that there are people out there that know where to look for it.  So take caution in you social networking activity.


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Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization

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