Privacy. 'Hey, Google, What Did I Search for Last Year?

• Author: William F. Hamilton
• Pages: 7-8

HEADNOTES

Published in Litigation, Volume 46, Number 2, Winter 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not

be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 7

PRIVAC Y

“Hey, Google,

What Did I

Search for Last

Yea r ? ”

WILLIAM F. HAMILTON

The author is a legal skills professor at the Uni-

versity of Florida Levin College of Law. He is also

the director of the UF Law E-Discovery Project.

Social media discovery is burdened by the

myth of the “killer photo.”

Good social media discovery is supposed

to find the equivalent of the selfie posted

by an allegedly crippled personal injury

victim gleefully skiing downhill at Aspen.

This mythological quest for a single killer

photo reduces social media discovery to a

few random screenshots. Social media dis-

covery, however, is best understood as the

full panoply of posted pictures, comments,

messages, likes, friends, posts, and other in-

formation. Social media artifacts are often

the connective tissue of the litigation story.

Seemingly disparate, innocuous, random

comments in workplace emails suddenly take

on a clear meaning when placed in the con-

text of vile, discriminatory social media posts.

The failure to understand and make use

of social media contextualization has been

aided and abetted by e-discovery software

weaknesses. Like other electronically stored

information, social media data must be col-

lected and then processed. Both steps are

fraught with problems.

Social media companies are shielded

from most civil discovery by the Stored

Communications Act, 18 U.S.C. ch. 121, §§

2701–2712. Litigants must resort to making

formal discovery requests for social media

information. The responding party often en-

gages in imperfect client self-collection be-

cause much of social media content is locked

behind privacy screens. Notwithstanding a

few tools on the market, simple and effective

social media collection remains elusive. And

processing collected social media presents

its own problems. There are hundreds of so-

cial media platforms. Coding that processes

data from one social media platform may not

work for other social media platforms.

Collecting and processing software re-

sembles the “Whac-a-Mole” game. As soon

as one social media platform is decoded,

others emerge. Or perhaps the social me-

dia platform modifies its coding, adds new

features, or adjusts the complex hierarchy

of access permissions.

Illustration s by Sean Kane