If you’re involved in a court case that requires a social media investigation to obtain evidence, you may be tempted to use social media intelligence (SMI) tools advertised so frequently on the web. These tools are designed to gather certain types of data from social media websites quickly, but that information means nothing for your case if you can’t interpret and present it correctly for the court. At Bosco, we strongly advise against using SMI software as your sole method of evidence collection – and here’s why.
What is SMI Software?
SMI software allows you to easily view a vast amount of detail sourced from social media platforms. Since SMI is an important marketing consideration for any business and is used for legal purposes, there are many tools available for extracting and analyzing social media activity. An SMI report can include things like: social media posts, location tags, hashtags, search activity, and similar public data. Businesses use these reports to refine marketing campaigns, understand their audience, and watch for industry trends. In a legal situation, a plaintiff or defendant may wish to use electronic evidence sourced from social media to support their case (such as in Zimmerman vs. Weis Markets).
Why is it (seemingly) so easy to gather this information? Because social media data is considered Open Source Intelligence (OSINT).
What is the Purpose of Open Source Intelligence OSINT?
OSINT refers to all information that the public can access without violating any law, such as copyright, privacy, or patent laws. While privacy settings may protect some social media profiles and posts, a huge amount of content is publicly available. Social media intelligence has even been given its own acronym under the Open Source Intelligence umbrella – SOCMINT. OSINT and SOCMINT can be legally accessed by any person and have the potential to provide admissible social media evidence.
What is SOCMINT?
There isn’t a tangible difference between SMI and SOCMINT (both abbreviations for social media intelligence) – but we would argue that each designation is inherently misleading when used to describe what an automated social media investigation tool can offer. The term “Social Media Intelligence” implies an understanding of data that goes beyond raw metrics or content, when in fact, SMI software only provides social media information.
Social Media Intelligence vs. Social Media Information
When we refer to intelligence in the course of a legal investigation, we’re talking about the meaningful gathering and processing of evidence to support or contradict a certain argument. Data only becomes intelligence once a greater meaning has been interpreted from it or assigned to it – and SMI software just can’t do that. Automated social media “intelligence” tools will spit out plenty of information that is loosely related to the profile(s) you need to investigate. This data might be useful… or it might not be. No SMI software will be able to tell you what actions you need to take to use that information as evidence, which data points are relevant to your case, or what critical content you might be missing.
Even worse than not understanding the data provided by a SOCMINT tool? All that information may not even be admissible if it doesn’t meet the requirements for electronic data submitted as evidence by FRE 902(14). That’s why partnering with a professional social media investigation service is imperative for processing social media intelligence and navigating how to obtain, preserve, and prepare electronic OSINT or SOCMINT evidence for your unique case.
Using Information from Social Media Intelligence Software in Court
SMI software is easily accessible and often offers free services – making it incredibly tempting as an apparently simple way to gather the evidence you need. Clients may turn to these solutions if they need to prove things like:
- Geolocation. A person was in a specific place at a specific time, proven by the fact that they posted from that location on social media.
- Personally held beliefs. A person expressed a certain opinion online that could hurt their case in court.
- Actions taken. A person posted a photo or video that establishes their behavior at a particular moment in time.
While automated tools may appear to present this kind of information to you, they do nothing to prepare you to interpret and present the data to a judge. If your case calls for a social media investigation, you need to keep your sights on the bigger picture: obtaining reliable evidence that meets legal requirements for admissibility.
Why is Evidence from SMI Tools Unreliable?
Firstly, most of these tools aren’t designed to help you prepare a court case. And even if they were – artificial intelligence simply hasn’t evolved to the point that it can effectively search social media for every detail you need to present in your specific argument.
Here are a few social media intelligence software pitfalls:
- Differentiation Limitations
- SMI software often struggles to differentiate between individuals or accounts from owners with the same name – especially if they are from the same family. This means your investigation could end up including data from the wrong person’s social media activity.
- Algorithm Limitations
- Automated tools’ algorithms usually target accounts based on one name, and don’t always make connections between other accounts owned by the same person but with a different username. For example, if Joe Bloggs has a Twitter account with the username “coolguy123” and an Instagram account with the username “gotigers479,” your SMI software’s algorithm may not pick up on the second account, leaving you without potentially critical information.
- Platform Updates
- Social media platforms change quickly, and these platforms aren’t usually interested in being scraped for data and thus intentionally make it difficult for tools to gather data. SOCMINT tools can face constant roadblocks when trying to keep up with changing code, rules, and software.
- Language
- SMI software struggles to keep up as users’ slang, hashtags, and social media-specific language changes according to rising and falling trends. This could mean that certain connected posts or shared information gets left out of a report.
- Database Gaps
- There are some social media intelligence factors that SMI tools simply cannot capture, including Instagram “stories,” Snapchats, and content blocked from search engines. This type of OSINT can only be gathered by a professional investigator – not an automated solution.
Above all, SMI software provides information, not intelligence. Intelligence comes from placing data within the context of an investigation and identifying what actionable steps can be taken to make that data useful in court.
Issues with Evidence Admissibility from SMI Software
In addition to making sure you obtain and understand all relevant information from a social media investigation, SOCMINT evidence can only help you if it can be submitted to the court. So what steps does SMI software miss? Let’s take a look.
- Authentication of Evidence
- To use a post, picture, or video from social media to support your case, you need to unequivocally prove that the content is associated with a certain person. SMI software does not provide the specific supporting data required by a judge to verify that the person in question is responsible for that content.
- Laying the Foundation for Admission
- Only a legal professional can present the background information required to establish the legitimacy and necessity for a piece of evidence to be admitted. This includes explaining how the OSINT was legally obtained, who obtained it, what sources were used, etc.
- Metadata Extraction and Hashing
- These essential court requirements are not provided by a large majority of software tools available. Even if the software has the capability to provide metadata extraction, many courts will still require a written declaration or in-person testimony to validate what is shown in the report. Software, while advanced, can’t get on the stand. And if the person who ran the report using SOCMINT tools was the attorney, paralegal, or insurance adjuster for the case, they won’t be allowed to testify in their own case.
Alternatives to SMI Software for Legal Use
A professional social media investigator is the best way to ensure that social media intelligence is properly gathered and preserved. These consultants know the ins and outs of regulations surrounding digital evidence and can tailor your investigation to locate the right data for your case. While an attorney could present automated SMI reports to a social media evidence expert and ask them to authenticate them, this usually results in information being deemed inadmissible and the investigation having to start back at square one. The surest way to avoid wasting valuable time and money is to hire a SOCMINT investigation service right from the get-go.
For more information on starting an SMI investigation, explore Bosco’s court resources or get in touch to speak with a legal consultant about your case.
