The Privacy Sieve

Social media privacy settings can be a nightmare or a godsend.  In my case, it’s a mixed bag as I am preparing to talk to Ontario lawyers about how to mine social media for litigation.  My preparations meant I needed to dig into some of the details that normally are outside my attention.  While I maintain nominal presence on two profile sites – Facebook and Google+ – I don’t share anything private on either.

Too Many Knobs and Buttons

Two things struck me as I was revisiting this topic.  The first was how proactive a user of one of these services needs to be, from the moment they create their account.  We often discuss lawyers having policies for their firms:  e-mail, internet, social media, computer use.  The average person may not consider the need to be discerning in following or friending people until they have a reason to be selective.  By then it could be too late.

One of the places I started was to review Facebook’s privacy settings.  I’m not that interested in whether they work or not.  What was most interesting to me was how many incremental elements there were.

The New York Times inspired me with their graphic laying out the privacy settings as they stood in 2010.  This led me to create a PowerPoint chart outlining the elements of a Facebook account and which ones could impact sharing of information.

Facebook Privacy Settings
Click to enlarge.

Some of the features only work from the time they’re turned on.  If you have a client – or opposing party – who decides to activate a feature after a law suit starts, they may not actually impact content already on the public Web.  Additionally, as new privacy features roll out, they may not really take notice of those that can reach back and block past history.

Anyone can see what their profile looks like to others.  It’s a nice feature built into profile sites like LinkedIn, Facebook, and Google+.  People who use profile sites without considering their selectivity may be erring on the side of leaving holes open in order to enable a particular interaction, or hope of one.  The information that flows through the holes in that sieve makes it possible for people to share unintentionally.

On and Off Switch

It is easier on some status update sites, like Twitter or Foursquare, to make your account private.  It’s essentially an on/off switch:  protect me or not.  But even within that simplicity, there are nuances.  Twitter’s output is called the Firehose and is distributed to paying companies.  You can turn off your contribution at the tap but, just like a garden hose, that doesn’t mean the water stops right away.  You can try this yourself by deleting one of your own tweets (if you’re on Twitter) and then visiting to see if you can still see it.



The issue may not arise that quickly though.  If you post a message and it sits on the Web for a weekend, it may appear in an RSS feed on someone’s computer, be added to someone’s Tumblr, or stream past in some other status feed.  Which means someone can grab a screenshot of it (ALT + PRTSCRN) and repost or reshare it outside the social network on which it was shared.  The Kansas research lawyer who was fired for her tweets has protected her account, but her post lives on.

Evidence is Different from Existence

For better or worse, just because it exists doesn’t mean its evidence.  There’s no question social media – well, mostly Facebook as far as I can tell from the case law – content is making it into litigation.  Even putting content in a properly protected private area may not be enough to keep it out of court.  But if the information is available, then the lawyers just need to prove who it came from.

If it’s not available (best case) or placed in a private zone, it makes it that much more of a challenge.  It will be interesting to see if, as lawyers seem to think, social media will be an increasing part of litigation or if it will hit a peak as people learn to share more carefully, or not at all.  Since your friends, family, and followers can share your private content (whether digital or not: you can still see some of @JudeCallegari’s tweets in, although not the one where she blabs about J.K. Rowling), there’s no sure bet.

People will probably continue to share and only regret it when a legal or other matter causes them to.  At that point, their options to protect their life may not be as watertight as they’d hoped.  Lawyers and investigators will certainly be looking for any leaks.

David Whelan

I improve information access and lead information teams. My books on finding information and managing it and practicing law using cloud computing reflect my interest in information management, technology, law practice, and legal research. I've been a library director in Canada and the US, as well as directing the American Bar Association's Legal Technology Resource Center. I speak and write frequently on information, technology, law library, and law practice issues.