Helping Legal Counsel Find Leads to Help their Clients: A Review of What Kind of Evidence Might be Available from Online Platforms

Introduction

Information obtained from online platforms can be a great asset when it comes to litigation proceedings. The term online platform includes not only social media platforms, but rather all online service platforms that are relevant to the investigation or civil action. These may include gaming platforms, messaging apps, e-commerce providers and others, not to mention the utility companies that give access to these entities.

Information obtained from these platforms may become valuable evidence in civil cases such as negligence (data breaches), intrusion upon seclusion, public disclosure of private facts, misappropriation of personality, publicly placing a person in a false light, defamation, fraud, and cases relating to intellectual property rights infringement.

In this post we’ll discuss resources that attorneys can use to develop leads to further their litigation.

Criminal Court Records

With respect to criminal cases, The United States Department of Justice will in some instances publish affidavits and criminal complaints made by US federal law enforcement professionals. These can supply particularly useful information about what type of information might be available from a particular online platform. For example, in USA v. O’Connor investigators not only made use of the traditional investigative and open-source intelligence (OSINT) techniques, but they also prepared and executed search warrants to obtain information from relevant online sources. They were able to obtain information from nine different online platforms that the suspects had interacted and/or had a presence on.

Similar types of information may be available to civil litigators under appropriate judicial orders, and it is important for legal counsel to understand what was available in criminal cases so that they can consider whether it is worth while pursuing similar information, such as identifying particulars for a John Doe defendant, in the civil context.

National Consortium for Justice Information and Statistics

Search.org has a directory which has contact information for various internet service providers, ranging from utility companies to gaming websites. The information is primarily intended for use by law enforcement; however, several providers will also aid counsel involved in civil matters. This site is a great resource for counsel as it provides the opportunity to communicate directly with the providers to determine what information may be available, as well as what processes need to be followed to obtain it.

This website is operated by the National Consortium for Justice Information and Statistics; a nonprofit organization funded by various US state and federal agencies that supports information sharing, information technology, cybercrime investigative and digital forensics, and criminal records systems needs of its stakeholders.

Platform Privacy Policies

Online platforms may disclose what information they collect about their users, and the instances in which it is shared.  This information can usually be found in the terms of service or the privacy policy.

Litigators should take note that there may be third-party service providers, such as a website analytics service that may also have information about the visitors of the online service. Again, this may be found in the privacy policy, or through basic research on how the site works.

These evidence gathering procedures are not applicable for every matter; however, if you are a lawyer representing clients where there is an online platform involved, please contact us to discuss your situation. There may be ways to speed up evidence acquisition, which in turn reduces your client’s overall cost and time to conclusion.

The purpose of this post is to advise legal professionals on possible avenues for investigation involving certain types of torts. Nothing in this post should be construed as legal advice. We recommend that you consult with your legal counsel before pursuing any investigative action.