Due Diligence With Social Networks

Tamara Thompson

Law Technology News

12-12-2008

Gone are the days when due diligence, or a litigation background check, amounted to reviewing a resume and examining public records -- or even Googling!

Today, a witness, juror, expert or potential business partner is more likely to have a social networking site than a criminal conviction. Many painstaking attorneys would be sure to check for court records, but they might miss out on the additional benefits of this new information arena.

The Pew Internet & American Life Project reports that 66 percent of Internet users under the age of 30 have a social networking profile. CareerBuilder.com found that 37 percent of employees they surveyed did too. By contrast, only 9.5 percent of potential hires have criminal convictions.

Social networking activity can be quite revealing -- a kind of informal resume and kitchen table chat, not tailored to a specific event or situation, and very likely full of unguarded admissions.

Even if preparation of an Internet profile isn't your primary objective, regularly check these sites, particularly if you will be preparing a due diligence declaration. These days, judges know the value of a Google search and have begun to expect that as a standard practice in locating people.

Here's the scoop on the kinds of information to be gleaned from social networking sites. In general, people participate in interactive Web sites with their friends, co-workers, school and professional colleagues, as well as Internet-only acquaintances. The self-generated content, along with comments from other participants, provide insight into a person's values, activities, biases and self-image. Most people mention past education and employers, as well as other people in their network, interest organizations and leisure activities. A breezy reflection on a summer vacation spot may point to a place to search for state and county court records.

I've used online networks to cull various types of information, including:

• Developing personal information on a witness' marital status, education and significant life events.

• Piecing together the background on an adoptee from Google Groups, genealogy sites, adoption discussion Web sites and blog comments -- that helped a birth mother prepare to contact her son. The profile I put together showed that the son knew he was adopted and that his adoptive mother had died.

• Finding where and when an insurance claimant had moved by turning up relevant comments on her son's social networking blog, and following that over time to track family events.

• Reviewing captions in photographs to identify family, former lovers, employment, assets, accidents, injuries and illnesses.

The most popular Internet social networking forums in the United States are MySpace, which has more than 70 percent of market share, and Facebook, which is growing in usage, particularly among adults.

Students and recent college graduates often have accounts on Facebook. Increasingly, people over the age of 30 are creating profiles and are active on MySpace, which is too often mistaken as a forum just for teenagers. Entrepreneurs and professionals are building informal resumes, posting or responding to topical questions related to interests and specialties.

LinkedIn is another active site, used by a wide variety of professionals.

People who host one site tend to have a presence on others, and those with sites are likely to comment on other people's sites. There, they often reveal more -- in words and images -- than they would at their own site, where they may present a more carefully considered or better groomed profile.

Here are a few more examples from recent cases:

• Carrying out an Internet background screening on a loan applicant who had a music entertainment business, I discovered a Craigslist job board request for strippers.

• A MySpace search by e-mail address pointed to a user whose profile had a privacy block and didn't identify her. But I found her e-mail address in the comments section of another MySpace user's Web site, revealing her identity and the connection between the two.

• By joining a Facebook community, which can be a region, school or interest group, I was able to identify an insurance claimant's place of work, his work schedule, current activities, and relationship status, as well as the names of his relatives and friends.

• Researching a plaintiff in a workplace claim, I located photographs and captions on a public MySpace page that told the individual's life story, including serious injuries and law enforcement conflicts.

BETTER SEARCH TECHNIQUES

Examining a personal profile at a social networking site can take an investigation further than just a general search engine. Advanced searches at Google, Yahoo, or Live can certainly help generate search results, but not all Web sites or Web pages are indexed or can be searched from a general search engine.

To improve your results, familiarize yourself with the search mechanisms and types of personal information at each social media site. According to the authors of "Personal Information of Adolescents on the Internet: A quantitative content analysis of MySpace," only 8.8 percent of MySpace users revealed both a first and last name, 57 percent included a picture and 27.8 percent listed their school. Other studies have noted that more than 90 percent of MySpace posters included their hometowns. Formulate a search query with these facts in mind.

It's a different situation searching on Facebook. Most Facebook profiles read like resumes, with full names, schools and work history, but fewer profiles are public. Profiles set to "private" show only a first and last name and the names of the individual's networks, which could be schools, regions or current employment. An investigator would have to register and then join a "network" to view full profiles.

Interactive social media aren't restricted to MySpace and Facebook. To branch out beyond them to the hundreds of niche online communities, search across various blogs and social networking and bookmarking sites at yoName and Spock.

Before beginning, do some advance fact gathering:

• Ask prospective jurors the names of the social networking sites they use, and under what usernames. Provide a list of sites, because people can be forgetful or have different user names at each site.

• Collect a potential business partner's former and current e-mail addresses, cell phone numbers, user names and cities of residence.

• Identify personal information on an opposing party, including children's names, professional organizations, avocations, religious affiliation and schools attended.

Overall, people seem to be driven to talk about themselves and to register their views on current events. Internet participants are shouting out in many online town squares. Interactive Web sites where you might find declarations and admissions include the comments section of newspapers, where readers respond to specific stories.

Follow the comments over time through the site's RSS mechanism, a page monitoring utility such as WatchThatPage or through Google Alerts.

For all the free flow of information, there are privacy restrictions that site creators can place on access, and these restrictions do complicate this type of passive information gathering. The recent addition of more nuanced privacy features gives the site registrants greater control over whether or not a particular site is open to the public and which people in their address books can visit their profile.

Social networking sites set to "private" usually provide few details. The only way to legitimately get full site access is to ask the site creator for permission -- or to get a subpoena.

Remember, after you find the site that seals your case, don't just save the link. You must capture the Web page to preserve it, because overnight your subject's public page may be reset to "private" or the relevant images and comments could be deleted.

Also print the Web pages from your browser, with the date and URL in the header/footer. Of course, people do lie in their online profiles, but that just opens another area of inquiry, right?

Tamara Thompson is principal of Tamara Thompson Investigations, based in Oakland, Calif.