Friending to Gain Access: The Pitfalls of Unethical Behaviors in Litigation

SMI AwareBlog

In the business of social media intelligence and analysis, there are always some risks involved. Since social media intelligence gathering is a highly trained skill, involving education and certifications, the risk of obtaining evidence in an illegal or unethical way is minimized, or eliminated entirely.

To obtain social media evidence yourself is risky because you may be unaware of the implications of doing this work without help from the experts. In your line of business, chances are that a code of ethics is maintained, with extra care given to ensure any work performed is done ethically and legally.

With a high set of standards, it’s important to realize what could be unethical behavior.

Do not friend those involved in a court case on social media. Becoming friends with a member of the opposing party, or a judge who is presiding over your case, on social media networks is not a behavior you want to engage in.

In some states, a judge and attorney friendship online suggests that the lawyer is in a special position to influence the judge. In several cases, a judge has had to recuse himself from a court case because of an online friendship with the prosecutor. In state ethics rules, an attorney is forbidden from communicating with a subject that is legally represented without first obtaining approval from their counsel. Friending a subject online could be in violation of this rule, and this also applies to any agent acting on a lawyer’s behalf.

These same precautions exist for communicating or sending friend requests to underrepresented third parties. Witnesses are a crucial part of many cases, but to communicate online with them could violate ethical standards. One of the reasons an attorney, or their agent, would want to friend a subject online is for access to their private postings not normally seen without a connection. While private postings may reveal information you could use in court, this information must be obtained by legal means to be admissible. Evidence obtained under false pretenses is considered an unethical behavior.

An expert social media intelligence analyst can legally and ethically obtain publicly available information on a subject without tipping the subject off. Using this method, and with the use of open source reports, a subpoena can then be requested to access the private postings of an individual if the public postings display enough to safely assume the private postings would be similar in nature.

Social media can be very beneficial in proving your case, if actions are consistent, ethical and legal. Expert analysts are highly trained and skilled to ensure the information obtained through a subject’s social media accounts is done so in a way so the evidence is upheld in court. Avoid unethical downfalls by engaging an analyst who can make sure evidence gathering is done correctly.