The Risks of Tipping-Off the Subject in a Social Media Analysis

As an attorney, your case is important to you. Through months of talking to and strategizing with your client, it would be a shame to find yourself up against anything that could jeopardize your case. There is a high level of value that comes with having in-house analysts that specialize in social media intelligence because risks in acquiring social media evidence are minimized, or almost eliminated altogether. Conduct social media evidence searches yourself and you could quickly find yourself engaging in behaviors that violate ethics.

At SMI Aware, we can process rushed requests to respond to an immediate need. We create our detailed reports, with evidence you can trust, for use in your court case. Through open source intelligence and reporting, we’re able to use the source code of the post(s) in question to preserve the post in time, which helps to further prove your case.

But, these open source reports only work if there are evidence-containing posts to actually pull. One of the biggest risks in social media evidence gathering is tipping off the subject.

When a subject is tipped off that someone is looking at their account, they can quickly (and especially under the advice of their counsel) delete the incriminating post(s). If the open source report hasn’t run prior to the subject taking action, those deleted posts are forever lost. To tip off a subject is to potentially lose your case. Using your personal accounts for searching can easily identify your in-house researcher to the subject, and a connection could be made between the in-house researcher and your firm.

Engaging in behaviors that tip off the subject can also be considered unethical. One example of this is on the social media platform, LinkedIn. User settings are typically set up to receive a notification when someone else views their profile. Not only can a notification of this nature alert the subject and end up encouraging them to delete any incriminating evidence, but this seemingly small act can present big problems. In some jurisdictions, the message that accompanies a profile view constitutes contacting a party, which is an ethical violation if that party is represented by counsel.

Tipping off the subject is a major detriment to your case. You could be compromising your evidence and the outcome, and even violating ethical standards. Taking on your own social media search for evidence is just not worth it. When you choose to involve expert analysts, social media intelligence is properly gathered, screened and preserved in time, and all in a legal and ethical way to be used as evidence in court.

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