Social Media, Digital Media and Digital Evidence – A General Concept

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What to look for, where to find it, and what to do with email, social media, text, and video

Social media is a form of electronic communication: websites and applications that enable users to create and share content or to participate in social networking.

Digital media is any digitized content such as text, photographs, audio and video that has been encoded and easily transmitted over computer networks. Digital media can be created, viewed, distributed, altered and preserved on electronic devices.

Digital Evidence is any probative information stored or transmitted in digital form over the Internet or computer networks.

Types of Data, Production Specifications and Formats

What is social media and how it can assist in investigations
In today’s time the digital world has become a large part in our everyday life and is used by almost everyone. The Internet has opened up a goldmine of information and resources that service many people in various situations, one of them being the facilitation of criminal activity, however, it has also assisted law enforcement in fighting such criminal activity, by simply using these tools against them.

Social media networks have assisted in many investigations in criminal and civil actions for a wide variety of case types, these include: stalking – harassment – murder – rape – identity fraud burglary – child abuse and exploitation – missing persons – sex trafficking – extortion – scams Counterfeiting – gambling – piracy – property crimes – terrorism.

In addition, it can be used to discredit or reinforce someone’s claim, establish witness reliability, prove/disprove an alibi ascertain someone’s character, check for illegal or inappropriate behavior, locate individuals and more.

Different types of social media
Facebook – Twitter – LinkedIn – Instagram – YouTube – Google plus- Snapchat – Pinterest

Social media is a great avenue to share information with others such as photos, videos, chats, posts and more, and in todays time it can be accessed everywhere from your mobile phone, making it easier to communicate with others at any given time.

What information can be collected from social media and how is it done
As social networks continue to increase in popularity, they become resources for informal discovery and investigations.

The information obtained on social media can assist in a cyber investigation by gathering valuable data to create a solid case, this information includes profiles, list of friends, group memberships, chat logs, wall posts, tweets, photos, videos, posts relating to past illegal activity GPS locations, events attended and invited, check-ins, login times and much more.

A statement made online by a victim, witness and even a defendant can provide a great deal of information to be used in court and affect the outcome of a case. In addition, knowledge of a prospective juror’s post can reveal bias to one side, therefore assist in decisions to dismiss a certain juror and even lead to a mistrial with seated jurors during trial.

One-way of obtaining information is screencast records, which is a technology that uses an open source tool that can validate eyewitness testimony, this is an efficient method to capture what is appearing on an active blog or Facebook wall.

Problems preventing us from obtaining the information
Any information that is publically accessed we are permitted to view and collect all of its content. However, if the information is not public accessible and we obtained it without permission of the owner or without a court order it will be contaminated and unusable, in addition to breaking several laws such as computer crime, eavesdropping and wiretapping.
There are several problems with obtaining information on social media, the main one being privacy settings preventing others access to one’s social network profile, thus making all the information unavailable for us to view and collect.

Ways to overcome these problems
1. Informal request to service providers (especially smaller ones) such as mobile providers, online gaming providers which can reveal an IP address.
2. Alternative location for evidence replication on other sites
3. Shared information of friends who’s profile is not blocked
4. Gathering the evidence from the social network on an electronic device
5. Third party permission, if another person has access to the information we are seeking and he gives us access then we are allowed to use it (a person on the friend list).

Legality & Procedure
Social media evidence is the new frontier of criminal proceedings, and it raises unique legal challenges including concerns of admissibility and a defendant’s constitutional rights.

For example, some courts have concluded that individuals have a reasonable expectation of privacy to their private Facebook information and massages. There is a distinction between a private massage to a post on a user’s Facebook wall. With Facebook’s customizable privacy settings a person sharing a massage by posting it on another user’s wall can be considered as private as a personal massage.

Another problem with social media evidence is the authenticity of the information, it is essential to prove that the individual we are investigating is in fact the author of the post or massage.

This can be done by presenting a witness with personal knowledge of the information and its author or searching the computer itself to back up or claim, another way is by attempting to obtain the information in question from the social media company.

Working with and Subpoenaing Social Media Companies

Response to subpoenas by social media
By gaining a subpoena for a particular device investigators can collect a great deal of history related to the device and its owner, however, obtaining a subpoena this is no easy task.

Almost all social networking services regularly refuse to produce records involving the content of electronic communications, big service providers tend to resist while smaller service providers may be more cooperative.
Some of the social media companies have their own polices such as twitter, where they notify the user of any requests of information they receive prior to disclosure of the information, which is becoming more common amongst most social media companies.

Legal issues
1. Taking into account privacy settings, a court order may be challenged as to what information can be authorized to view, therefore, there are limits and boundaries when requesting access to a user’s accounts.
2. There is no clear ruling on how courts categorize social media sites and a decision whether to grant a subpoena or not is left for each judge to view and respond on a case-by-case basis.
3. Facebook does not respond to private party subpoenas to obtain any type of social media content, they will however provide basic subscriber information if the requested information is essential with a valid subpoena or court order.
4. In Civil matters a valid California or New York subpoena is required

As to law enforcement, a warrant will get you much further: when a social media company such as Facebook responds to a subpoena, the information they can provide includes the user’s profile, photos and videos, posts, every friend request you have ever received and how you responded, every event you have been invited to and how you responded, IP address used every time you logged in, dates of user name changes and historical privacy settings changes, time stamps, picture location as well as ones you were tagged in even if you untagged yourself, credit card information if you have ever purchased or advertised on Facebook, and you last known physical location.

What information should you ask for to get the maximum results
The best way to receive as much information from social media companies is to avoid seeking private massages and only request quasi-public massages/posting. Anything that is available on a user’s timeline/wall/feed that is accessible to either to the public or large groups of people (friend of friends).

References:

Blau, D. M., Blau, H., & Raleigh. (2016). Social Media Evidence and Investigations.

Patrick, W.L. (2013). Predatory Friending: The Ethics of Legal Investigation in a Virtual World. Issue of The Bencher, the flagship magazine of the American Inns of Court.

Goldmann, P. (2012). The Fraud Examinar. Association of Certified Fraud Examiners, Inc.

Goodison, S.E., Davis, R.C., & Jackson B.A. (215). Digital Evidence and the U.S. Criminal Justice system. Rand Corporation. www.rand.org.

Smartphone Encryption and Public Safety.(2016). Report of the Manhattan District Attorney’s Office.

Wright, B. (2012). Social Media and the Changing Role of Investigators. Advantage Business Media.

Best Practices for seizing electronic evidence. A pocket guide for first responders. U.S Department of Homeland Security.

Rysenbry E. Social media investigations 101: what they’re for & what they find. Trustify.

Murphy, J.P., & Fontecilla A. (2013). Social Media Evidence in Criminal Justice Proceedings: An Ucertain Frontier. Digital discovery & e-Evidence. Bureau of National Affairs, INC.

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