Geek Speak

Surfing the Web for Evidentiary Gems

~by Troy Henley, Columbus Bar Association

The growing practice of trolling the web for evidentiary material was put in the spotlight again with a recent DUI lawsuit. Prosecutors used Facebook and Myspace photographs to demonstrate a DUI defendant’s lack of remorse for the life changing injuries he caused to a 20 year old student. This had a profound impact on the defendant’s case. Just weeks after seriously injuring the student in an alcohol-fueled, 3-car pileup, Joshua Lipton chose to go partying in his new Halloween costume, a faux prison uniform with “Jail Bird” emblazoned across the front. Joshua was partying it up while his victim lay recovering in a hospital bed. The judge called the photos “depraved” and sentenced Joshua to 2 years in prison. There are many more cases where judges and jurors point to internet content as a leading factor in the outcome of the trial and sentencing terms.

Photos and content are not only posted by the website profile owner, they are also frequently cross-posted by other friends to their online buddy’s profile or other individual's profiles. The content may be phone pics from a previous night’s party, their feelings on certain issues, their group membership and affiliations. Or better yet, a blog can frequently take the appearance of an online diary with text, photos and more commonly these days, video. Some web 2.0 services such as Twitter even provide day-to-day, hour-by-hour thoughts, feelings and activities of an individual. That’s a vast amount of material to potentially discover.

Another case in which web content played a pivotal role involved a medical professional that had misdiagnosed their client’s medical condition which led to the plaintiff's injury. After reviewing the medical professional’s CV it was revealed that they had participated as an online expert for a medical advice website. A quick search of the website revealed the consultation blog had been pulled from view, perhaps on the advice of the medical professional’s attorney. That's when a little knowledge of the internet can make a big difference. There are several services that archive historical snapshots of the internet’s billion+ websites. One of these archives included a complete snapshot of the advice webpage in question. It showed that the medical professional had actually provided conflicting advice, and line of treatment, to another client with the same symptoms as the plaintiff. This information brought into serious question the appropriateness of the medical professional’s assessment and treatment of the plaintiff.

Another web content case involved a young man’s suicide. It was believed that a medication prescribed to him was a leading cause for his depression and suicidal thoughts. Information was obtained from several social networking sites that gave a diary of the young man’s declining mental state after he began taking the medication. The information helped paint a picture to the jurors of the impact the medication had on his depression and subsequent suicide.

Rob McKinney, a Nashville, Tennessee lawyer who posts to a blog on InjuryBoard.com had this to say about web data and its use in personal injury cases “If you have been injured in any type of accident case, your life becomes an open book. An insurance company or an insurance defense lawyer will investigate your background. I recently had two cases where a MySpace page made a case and severely damaged another. Social networking sites are great. I even have a LinkedIn page. But once you put up photos, comments or any other type of information, it is posted into cyberspace for good. In one case, I was able to discredit a witness using his MySpace page as impeachment evidence. The other case was not so good for my client. The bottom line is if you are in a personal injury case be careful what is on your website or pages. What is on the web may make or destroy your case.”

Reputation Management Companies

The writing is on the wall… and that wall happens to be public record. So what’s a social networker or lawyer with a web obsessed client to do? You can contact a reputation management company. That’s right, you read it correctly, an internet reputation management company. Virtual spray paint if you will. They will search for information about you or your client online. They’ll provide you with a full report and then remove whatever information you deem is inappropriate or slanderous. Reputation management companies work with the site’s owners to get your data removed.

ReputationDefender is one of the companies positioned to take advantage of this new area created by web 2.0. I imagine the bulk of their work is performed for recent college grads getting ready to hit the workforce, but oops, they recall some unflattering web discussions, editorials or blog postings that could derail their new career if their prospective employers find out.

Particularly at risk are younger generations, they have the potential to have posted a much larger volume of content, merely a result of having grown up with the web. Having access to the web during those foolish adolescent years and care-free college days gives web users a much greater opportunity of posting content to the web that they may later regret, such as when they begin to embark on a career. Reputation defender services could be utilized by attorneys on either side of a case to try and hide or reveal potentially valuable information. You could just as well hire one of those outfits to discover damaging information about your adversary’s side of the case as you could to hide information you do not want revealed about your own client.

How to Find Those Old Pages and Hidden Gems

The Internet Archive – Visit a Website as it Appeared Years Ago !

A couple of resources not as widely know as Myspace and Facebook are Google’s Webpage Cache and The Internet Archive. There are several projects worldwide that involve taking “snapshots” of the internet over a very long period of time. Sort of like the Day-in-the-Life coffee table books. So, even though content may have been pulled or an entire website removed, all is not lost. If backup tapes do not exist for the web content you wish to recover you may have some success locating removed content by visiting The Internet Archive’s Wayback Engine, one of the first projects to attempt copying the internet and archiving it on a regular basis. You will find snapshots of websites dating back as early as 1996. At first, The Internet Archive began taking snapshots of websites on an annual basis and then they began taking monthly snapshots of websites around 1997. So you may be surprised to find many copies of the content that you wish to explore. You will find more frequent snapshots of a particular website after the year 1999, perhaps due to falling hard drive prices which made the cost of storing so much content more economical.

Google Cache – A Recent Snapshot in Time

Another method for locating recently removed content is Google’s Webpage Cache. When you perform a search with Google, many of the search results have the word “cache” written next to them. Clicking the “cache” link takes you to a snapshot of the website created when Google last indexed the website. This can frequently hold vital info of recently changed data. In fact, this feature has also saved many web designers, who lost their entire website due to a hacker’s handiwork or the unfortunate crash of a web server and lack of proper backups from which they could have restored the site. This could prove more valuable than the currency form of “cash” in your next trial.

Website Snapshot Software – Copy the Content You Wish to Preserve

Found that evidentiary gem that is going to turn your case inside out and you want to save that information as quick as possible? If a website exists with important data on it and you are concerned it may get removed before you can hire a computer forensics pro to image the web server’s hard drive, all is not lost. There are a number of software programs that will download a complete copy of the website which you can then browse “off line”. A free program that I have used in the past for downloading a snapshot of websites is HTTrack Website Copier.

Additional References

Dexter v. Dexter, 2007-Ohio-2568. This case revolves around the issue of MySpace data used in a child custody case as evidence. The defendant fought the use of their MySpace page, but the Ohio court believed it was necessary and relevant (pg. 12)

Explore the issues that both prosecutors and defense counsel face in determining whether digital evidence from Internet-based sources, primarily social networks, should be admitting under the Federal Rules of Evidence. Using an analysis of recent case law involving the admissibility of electronic evidence, the paper concludes with predictions on how these precedents would apply to social network websites like MySpace, Craigslist, personal blogs, and eBay.

Court Case Decision Reveals Dangers of Networking Sites