Litigation Support Tip of the Night

July 24, 2019

Recently the great William Hamilton of the University of Florida College of Law's E-Discovery Project and retired Judge Ralph Artigliere published an article, Face-Off On Facebook: Judges and Lawyers as Social Media “Friends” in a Post-Herssein World, discussing whether or not a Facebook friendship should be a basis for disqualification.   93, No. 4 Fla. B.J. 18 (July/August 2019).  The Florida Supreme Court ruled in Law Offices of Herssein & Herssein, P.A. v. United Servs. Auto. Ass’n, No. SC17-1848, 2018 Fla. LEXIS 2209 (Nov. 15, 2018), that a Facebook friendship is not by itself sufficient to require the disqualification of a judge. This contrasts with the opinion of the Florida Judicial Ethics Advisory Committee that being friends on social media with counsel or litigants would convey the possibility of favoritism being exercised and violate the judicial ethical code.   

Hamilton and Artigliere note several complications in assessing the impact of social media connections.

First, the increased reliance on email and e-filings means that judges and attorneys no longer interact as often in person. In the past they had greater opportunities to assess and learn from one another. Restricting social media usage would only increase their isolation.  

Second, determining the extent of a social media relationship involves accessing data that is not necessarily publicly available. Discovery methods entail, “invading privacy and creating a burdensome, time-consuming foray unrelated to the case merits.”.  Artigliere, at 4. 

Third, preferences expressed on a private social media account may give an advantage to those with access over counsel that are excluded.  

The California Judicial Ethics Committee lists four factors to consider when determining if a social media connection with an attorney may call a judge's impartiality into question:

1. The more personal the social media account, the more likely it is to cast doubt on impartiality.

2. The greater the number of friends, the less likely it is to cast doubt on impartiality.

3. The Judge's willingness to add friends or followers.

4. The connection is less permissible, if the attorney appears before the judge very frequently. 

I personally think that the California guidelines are somewhat flawed.

If a judge only posts about his or her family and sports, aren't any followers unlikely to gain insight to the judges' legal reasoning?   Would a judge be less guarded about granting favorable treatment to a friend if this was not likely to be repeated in cases involving many different lawyers and parties?  

In any event, there certainly are quite a few judges using social media.  See the below sample of these entirely public accounts.  To be clear:  I am not Facebook friends with any of these judges. 

May 3, 2019

A Facebook account can be deleted by clicking on the drop-down menu at the far right of top blue bar across the top of the page.   Select Setting, and then on the left of the page click 'Your Facebook Information'.     You will then have the option to 'Permanently delete your Facebook account and information'.   

Facebook gives users up to 30 days to recover an account after it has been deleted.   One simply has to login into the account and select the option to 'Cancel Deletion'. 

During this 30 day period, the information posted to an individual's account will not be displayed to other users.   Facebook's posting here regarding the deletion of accounts notes that, "It may take up to 90 days from the beginning of the deletion process to delete all the things you've posted. While we're deleting this information, it's not accessible to other people using Facebook."

May 28, 2018

The Tip of the Night for May 12, 2018 , discussed speculation that social media apps were accessing mics on smart phones to listen in conversations, and send users targeted advertising.   I discussed a Wired article written by a former Facebook employee who denied that Facebook was recording its users conversations, and asserted that it was impractible for them to do so because of the amount of data that it would need to collect.

A complaint filed with the California Superior Court for San Mateo County, Six4Three, LLC v. Facebook, Inc., No. CIV 533328 (Cal. Super. Jan. 12, 2018), contends that Facebook does indeed access user's microphones, as well as their texts and location data:

Upon information and belief, at least by 2013 and continuing at least through
2015, Facebook continued to explore and implement ways to track users' location, to track and
read their texts, to access and record their microphones on their phones, to track and monitor their
usage of competitive apps on their phones, and to track and monitor their calls. For example,
upon information and belief, Facebook expanded its program to access and monitor the
microphone on Android phones in 2015 without securing the explicit consent of all users and
while only providing partial disclosures as to what information was being obtained and for what
purposes it was being used.  ¶ 233.

The plaintiff in this suit, Six4Three, LLC, alleges that Facebook operated a fraudulent scheme that induced it and other developers to enter into contractual agreements with Facebook in exchange for access to social data.    The complaint also alleges that Facebook misuses its users' photo data:

 a user has any Facebook app installed on their iPhone, then Facebook accesses and analyzes (using facial and other image recognition) the photos the user takes and/or stores on the iPhone (see, e.g., https:/ /www 1 0209909027988265). Facebook's partial disclosures regarding iPhone photo access and what information it gleans from the photos have been woefully deficient. Ibid.

The complaint asserts that Facebook improperly collects and archives its users' photos:

. . . proposed technical "fix" by Facebook was to create an offline, searchable cache of Facebook's users' photos. But this solution (1) on its face violates Facebook's own terms, (2) would not permit the App to function as originally intended and in the same manner it had been, and (3) could result in a grave and substantial abuse of user trust, violate user privacy, and gut the core principle of an individual's ownership and control of their own data.  ¶ 170

Strong reason to doubt that Facebook's denials about how aggressively to collects text, photo, and audio data from its users. 

May 12, 2018

Recently, I've noticed my Instagram app displaying a remarkable amount of intuition in how it feeds ads to me.  The day after discussing a particular flavor of a particular brand of a meal replacement drink at my friend's home (a brand I never googled or emailed about before) an ad for the exact same drink appeared in my queue.   Today while driving along 14th Street in Manhattan, I remarked that I was surprised to see signs indicating a Target would be opening there soon.   A short while later ads for Target popped up.  Could it be that Instagram is using the microphone on my iPhone to listen to my conversations?

There certainly is a good deal of speculation online that Instagram, Facebook, and other apps listen to conversations spoken within range of the smartphone on which they are installed.   See for example this Redditt board.   Could it be that this is really taking place?

Antonio Garcia Martinez, a Facebook employee responsible for ad targeting, published an article in Wired this past November attempting to debunk this idea.  In Facebook's Not Listening Through Your Phone. It Doesn't Have To,  Garcia Martinez claims that voice over internet data for even half a day would amount to 130 MB per user (3KB per second).   This much data for all 150 million daily users of Facebook in a single day would come to 20 petabytes.  According to Garcia Martinez Facebook only stores 300 petabytes of data, taking in 600 terabytes each day.    Facebook uses about 1 million target keywords, and searching for that many terms would cause a substantial decrease in a phone's performance.    A test at Facebook, 'Project Chorizo', utilizing all available user data indicated that only a single digit percentage of posts provided useful data to the ad targeting algorithm. 

On the other hand, Zoe Kleinman, a technology reporter for the BBC, in her March 2, 2016 article, Is your smartphone listening to you?  indicated that it is indeed technically possible for an app to scan conversations.   She engaged a cyber security experts from Pen Test Partners who in just two days were able to create an Android app that could listen in on conversations and then convert the spoken words to text that was transferred to their computer.    Kleinman reports that:

       It wasn't perfect but it was practically in real time and certainly able to identify most keywords.

       The battery drain during our experiments was minimal and, using wi-fi, there was no data plan spike.

       "We re-used a lot of code that's already out there," said David Lodge.

       "Certainly the user wouldn't realise what was happening. As for Apple and Google - they could see it,

        they could find it and they could stop it. But it is pretty easy to create."

A Google spokesperson questioned for the article noted that apps are restricted from collecting data without the knowledge of users. 

Instagram posts its Data Policy and Privacy Policy online.   (Don't forget that Facebook acquired Instagram in 2012.)  In addition to collecting data from user profiles and user content, it also tracks web pages visited by a device, log file information, device identifiers, and meta data including geo tags for photos.  If a purchase is made using the app, the user's credit card and debit card information may be recorded.    Notably its Data Policy states that the app collects  "information about other devices that are nearby or on your network, so we can do things like help you stream a video from your phone to your TV." (emphasis mine).   Does this mean that Facebook can direct ads to you on the basis of what the users of other smartphones nearby you are interested in, especially when they are nearby for long periods of time, and in large numbers?   The section on 'Device Information' indicates that apparently regardless of whether or not you allow the app to access your location, it can detect "[b]luetooth signals, and information about nearby Wi-Fi access points, beacons, and cell towers."    There is nothing specifically mentioning using a microphone to record conversations, but it's clear that an awful lot of data is being taken in from your phone and those around it that can help analyze your potential interests. 


April 12, 2018

Mark Zuckerberg's statements to Congress today included the remark that, “I don’t believe we’ve ever collected the content of phone calls.”   This is somewhat misleading.   Facebook has collected records on phone calls and SMS messages made by Android users.   See this post to the FB blog.    While it apparently does not collect the same information from people who install the FB app on their iPhones, the data I downloaded from my FB account includes all of the contact information on my iPhone.

Android users of the FB messaging app, may receive a notification like this one requesting to, "Continuously upload . . . your call and text history."


March 11, 2018

FINRA, the Financial Industry Regulatory Authority, is a private corporation which issues regulations for American securities firms.   FINRA Regulatory Notice 10-06 provides guidance regarding the use of social media sites.    It was issued in January 2010.    

The notice makes reference to NASD Rule 3110, which imposes record retention requirements on securities firms, as noted in the Tip of the Night for September 24, 2017.    The notice refers to processes by which social media posts can be retained.  

"FINRA is aware that some technology providers are developing systems that are intended to enable firms to retain records of communications made through social media sites. Some systems might interface with a firm’s network to capture social media participation and feed it into existing systems for the review and retention of email. Other providers are developing technology that might permit a registered representative working off-site to elect to access social media through platforms that will retain the communications on behalf of the firm."

Lawyers representing securities firms should question their clients as to whether or not they have implemented software systems that automatically archive social media posts, and if they can be accessed for electronic discovery.   The notice also refers to the fact that securities firms maintain databases for templates to be used for social media posts that they require their employees to adhere to.   The collection of such templates (as well as tracking if they were departed from) can be an important part of the e-discovery process.   

Registered principals must approve 'static content' on social media sites, but they do not have to make all 'interactive' communications on sites like Facebook and Twitter.   

February 23, 2018

By default a Twitter account will not indicate a user's location.   This setting can be changed however, and locations can be added to individual tweets.   If you want to search for any tweets sent with geo tags by a particular user, log in to the Tweet Paths site.    You can search tweets from specified accounts sent during specified date ranges. 

February 14, 2018

The post on December 11, 2016 discussed how to download data for an individual user's posts to Facebook.   Don't miss that the downloaded data will include an html file named 'Security' which will have information for each individual login showing the precise time and the device used to access Facebook.  See this excerpt:

Session updated

Friday, November 7, 2017 at 10:04pm EST
IP Address:
Browser: Mozilla/5.0 (iPhone; CPU iPhone OS 7_1 like Mac OS X) AppleWebKit/601.1.4 (KHTML, like Gecko) Mobile/12B411 [FBAN/FBIOS;FBAV/;FBBV/4950413;FBDV/iPhone4,1;FBMD/iPhone;FBSN/iPhone OS;FBSV/5.1;FBSS/2; FBCR/AT&T;FBID/phone;FBLC/en_US;FBOP/3]
Cookie: ...-

September 17, 2017

As noted in the Tip of the Night for December 16, 2016, in December 2017 Federal Rule of Evidence 902 will be amended so that documentation generated by computer can be considered self-authenticating.     There has been some speculation that social media evidence  may be regarded as self-authenticating.  In United States v. Browne, 834 F.3d 403 (3d Cir. 2016), the Third Circuit ruled that Facebook chats that a defendant convicted of child pornography and sexual offenses exchanged with with minors were not self-authenticating. 

In this case Facebook chat logs were entered into evidence with a certificate of authenticity.   The certifying custodian stated that the records were kept by Facebook, "in the course of regularly conducted activity as a regular practice."     The government argued that the records were authenticated under FRE 902(11), as "Certified Domestic Records of a Regularly Conducted Activity.  The Third Circuit decided that this was not the case.   

The court found that social media evidence has to be subjected to a relevance assessment prior to admission.  The jury must be able to find by a preponderance of the evidence that the defendants and his victims authored the messages.    

The court also found that the Facebook records lacked sufficient indicia of reliability -  the records custodian can't rely on the substantive contents of the communications.     It can only confirm that communications took place between particular accounts at a particular time.     The opinion states that, "Government's position would mean that all electronic information whose storage or transmission could be verified by a third-party service provider would be exempt from the hearsay rules."  

The court did find that the messages were admissible because there was more than enough evidence to link the defendant to the chats.     Minors involved in communications with the defendant testified about their communications using Facebook.  DHS agents confirmed that messages were received from Facebook. 

August 29, 2017

Like Signal and WhatsApp, Facebook direct messages now provide end to end encryption.  

When sending a new message look for the secret option in the upper right corner

You can confirm that the messages you are receiving are from a known source by comparing the unique keys for each user's account.  In a draft message click on the icon with the person's name.  You'll see the option for both your keys and your recipient keys. This will prevent a man in the middle attack.

The messages can be set to auto-destruct. See the ticker icon on the left.      

Note that Facebook reserves the right to review messages when one of the participants files a report. 

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Sean O'Shea has more than 15 years of experience in the litigation support field with major law firms in New York and San Francisco.   He is an ACEDS Certified eDiscovery Specialist and a Relativity Certified Administrator.

The views expressed in this blog are those of the owner and do not reflect the views or opinions of the owner’s employer.


All content provided on this blog is for informational purposes only. The owner of this blog makes no representations as to the accuracy or completeness of any information on this site or found by following any link on this site. The owner will not be liable for any errors or omissions in this information nor for the availability of this information. The owner will not be liable for any losses, injuries, or damages from the display or use of this information.


This policy is subject to change at any time.


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