NMA E-Newsletter #185: Are You a Digital Bigfoot?

There’s no escaping it. You leave a digital footprint everywhere you go. And it tells a lot about you: where you’ve been, what you’ve been doing—even your state of mind.


We’ve discussed some of these digital trackers already. Cell phone records can reveal where you’ve been and who you’ve been interacting with. The black box in your car records data on your driving. And all of this can come back to haunt you during a legal proceeding.


Given the staggering amount of data it tracks and stores, Facebook takes this concern to a whole new level. This behemoth social networking site boasts more than 900 million users who collectively issue 60 million status updates and upload 300 million photos daily. It’s an irresistible target for attorneys of all stripes seeking evidence to help their cases. Motorists involved in legal proceedings are finding themselves more frequently responding to court requests to surrender their Facebook usernames and passwords.


A recent court ruling in Nevada provides a perfect example. A plaintiff, who alleged serious injury from an auto accident involving a defective airbag and safety belt, was ordered to turn over five years’ of content from Facebook and MySpace (another social networking site) to the defense for discovery purposes.


In another case from Pennsylvania, both parties to a civil suit involving a traffic accident filed competing motions to compel access to the other’s Facebook pages. The plaintiff wanted to find out the defendant’s whereabouts at the time of the accident, and the defendant sought to confirm the extent of the plaintiff’s injury claims.


A judge ultimately denied both motions. However, in his written decision he cited more than a dozen cases (many of which were vehicle/motorist related) in which parties sought, and in some instances received, Facebook discovery.


And this trend will only continue. In 2011 alone, there were no fewer than 689 published legal cases nationwide in which evidence from social media sites played a significant role.


So, what can you do to make yourself less vulnerable to a Facebook fishing expedition? Obviously be careful about what you post, especially on the public side of your Facebook profile. Finding relevant information on a public profile often provides a basis to compel discovery of private information that is normally only shared with chosen people. Even innocuous details such as where you were last night and what you were doing can become significant in a legal proceeding.


Realize that Facebook collects more data on you than you probably think, including the date and time of your logins, your search history, your last known location (including latitude and longitude) and even biometric/facial recognition data on photographs. Here you’ll find an enlightening overview of the state of Facebook privacy and some ways to control your online footprint.


And it’s not just Facebook that’s fair game. Personal emails, comments posted to blogs, server logs, files you thought you deleted, GPS records from navigation systems—all can become the target of a discovery request.


Note that this is not an exhaustive analysis on this important topic; there are no easy answers, and the legal considerations will likely become ever more complex. As technology and personal privacy continue their tug-of-war, the NMA will call attention to developments that have a direct impact on motorists’ rights.

Not an NMA Member yet?

Join today and get these great benefits!