The Riverwalk and Online Talk at the ABA: Building a Foundation for Online Investigations
It was cold and rainy here in San Antonio for the American Bar Association LEL & TIPS Mid Winter Conference, but the dialogue warmed things up rather rapidly inside. In a session discussing Social Networking and Investigations, Scott Catron, of Titan Investigations was giving a solid presentation on the guidelines for a proper online investigation when a question from the audience changed the course slightly, and certainly made me think of potential issues that had escaped me prior.
Essentially, his question was related to building a proper foundation for admissibility, but more directly to the point, he wanted to know how what we find online is legit. He asked, "what If I don't like someone, and create a false Facebook page for them, filled with lies and gross inaccuracies? How would you be able to prove that was, or was not, legitimate info?"
The question certainly got my attention. There has been much discussion this last year on the how's, why's, and where's for conducting online investigations of injured workers, as well as a host of information on making sure the search is legal, and hence, admissible. But until this point, I don't ever recall someone asking, "how can we prove what we find is real?" It is a point that goes well beyond ferreting out fraudulent information; it in fact goes to the heart of building the foundation necessary to ensure that what you find, can be used.
Essentially, when you are looking for information online about a particular injured worker, you not only need to make sure you conduct that search legally, but need to document your steps in the process. You should always, in addition to printing what you find, document when, where, and how you came across that information. Is there something in what you find that can be used to cross verify its validity? Names, dates, events or locations that can be further scrutinized to establish credibility? If the website you find is not one of the larger, better known social networking sites, who owns the site? Where is it hosted? (your IT person or webmaster can help you determine that rather quickly in most cases) If you can get that info, you may be able to determine through further inquiry not only when that item was posted online, but what IP address was used to post it. An IP, or Internet Protocol address, can be gold for you in this process, as it can often point to a specific house or business, depending on the network used.
I should point out that you may actually need to engage the courts to compel some of that information. Many websites, including this one, employ privacy policies that would prohibit them from randomly sharing that info with anyone who casually seeks it. However, it never hurts to ask!
Another thing you should be aware of is the archiving ability of many web services. Just because a page or item is removed doesn't mean it is no longer available. Websites like archive.org's "Way Back Machine" capture a tremendous number of websites, and you can often find previously posted pages there. I have some personal experience in this area, using Googles page caching system - experience that got my niece and her husband dropped from a lawsuit.
Two men, who were both heavily intoxicated, took an ATV that belonged to them in the middle of the night without their knowledge. They wrecked it, and one man was badly injured, losing a hand. Because the keys had been left in it, my niece and her hubby were on the hook (despite the fact that they saved his life with a tourniquet and administered care while waiting for emergency personnel). The injured man denied being impaired, and the suit was on.
However, his wife maintained a blog, and for a brief time posted a description of the night, including the fact that they were so wasted they don't even remember most of it. My niece saw this, but failed to print it right away, and when she returned, it was gone. (clearly someone's attorney had caught wind of it, and told them to take it down)
After getting a few facts, such as names and dates, it took me a very short time to find the archived pages in Googles cache files. When these pages were given to their lawyer, my niece and her husband were removed as defendants in very short order.
Online research pays. Just know what you are doing, and in addition to following legal search requirements, maintain a proper documentation trail. You might be amazed at what you can find.
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Robert Wilson is President & CEO of WorkersCompensation.com, and "From Bob's Cluttered Desk" comes his (often incoherent) thoughts, ramblings, observations and rants - often on workers' comp or employment issues, but occasionally not.
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