New Notifications, 2020 Social Media Update Part 1

A multi-part update series reviewing recent news, resources, and cases related to social media and the technical and legal challenges it creates in eDiscovery

As a review of almost any day’s news will demonstrate, social media remains an influential, indispensable part of American life – for better or for worse.  Our usage of social media has grown dramatically over the past fifteen years:

When Pew Research Center began tracking social media adoption in 2005, just 5% of American adults used at least one of these platforms. By 2011 that share had risen to half of all Americans, and today 72% of the public uses some type of social media.

Our high rate of usage has continued, without abatement, “despite a long stretch of controversies over privacy, fake news and censorship on social media” [internal hyperlinks omitted].  And, our creation of new materials on these platforms continues to grow each year:

Social Media in eDiscovery

As social media has been working its way ever deeper into our relationships, our professional activities, and our culture as a whole, its impact on discovery has been growing as well:

• An August 2016 review by X1 uncovered more than 9,500 cases from the preceding 12 months in which social media evidence played a significant role, which was a 50 percent increase over the prior year.

• ILTA survey data from 2016 showed that 77% of responding law firms had handled cases involving the collection and processing of social media data in the prior year. Survey data from 2017 showed that number was up to 84% – an increase of 9%.  Moreover, 28% of responding law firms indicated dealing with social media in 11 or more matters in the prior year – a 59% increase from the year before.

• For a more recent example, in one high-profile criminal case, police pieced together a trail of ESI evidence that included: Tinder profiles, Snapchat photos, Facebook videos, iPhone forensic analysis, phone pings and GPS locations, and more.

In 2019, in recognition of this growing impact, the Sedona Conference published a Second Edition of its Primer on Social Media to help practitioners meet the eDiscovery challenges posed by social media evidence:

The need for an updated Primer was essential given significant advances in social media technology since we published the first edition of The Sedona Conference Primer on Social Media in December 2012. The proliferation of messaging technology and its usage – on traditional social media platforms and in mobile messaging applications – have created preservation, production, and evidentiary challenges that counsel should learn to recognize and address.  [emphasis added]

Social Media Sources

Although there are numerous social media services and applications, the vast majority of use activity is centered on a few services: YouTube, Facebook, Instagram, Pinterest, LinkedIn, Snapchat, Twitter, and WhatsApp.  According to the Pew Research Center’s June 2019 Social Media Fact Sheet, 73% of US adults use YouTube, 69% use Facebook, 37% use Instagram, 28% use Pinterest, 27% use LinkedIn, 24% use Snapchat, 22% use Twitter, and 20% use WhatsApp.  These eight services – Facebook in particular – will be your most likely social media sources:

• YouTube
  • Social networking site focused on sharing, watching, and commenting on recorded and live-streamed video content
    • Primary use: sharing and watching videos
    • “As of January 2019, nearly 44,000 YouTube channels had at least 250,000 subscribers. Collectively, these popular channels uploaded 48,486 hours of content and received over 14.2 billion individual views in the first week of 2019 alone . . .”

• Facebook
  • Social networking site on which users create personal profiles, add friends, send messages, post status updates, share media and links, chat with others, join groups, stream live video, and more
    • Primary use: personal social networking
    • “Around eight-in-ten (79%) of those ages 18 to 29 use Facebook – much higher than the share among those 65 and older (46%). However, the share of older Americans who use the platform has more than doubled since August 2012, when just 20% of those 65 and older said they used it.”

• Instagram
  • Social networking site, owned by Facebook, focused on sharing and commenting on users’ photos and videos
    • Primary use: sharing personal photos, videos, and stories 

• Pinterest
  • Social networking site focused on creating and sharing “pinboards” of favorite or themed images and videos, both uploaded and collected from the Internet
    • Primary use: aggregating themed images (e.g., home decor ideas)

• LinkedIn
  • Social networking site focused on professional networking and job seeking, with profiles akin to curricula vitae and a variety of industry-specific groups to join
    • Primary use: professional networking, job seeking

• Snapchat
  • Private, ephemeral social networking site on which users share photos, videos, and stories that disappear after a designated amount of time
    • Primary use: personal social networking, private sharing of ephemeral photos and videos

• Twitter
  • Social networking site focused on rapid, chronological sharing of brief messages called “tweets,” each of which is no more than 280 characters in length
    • Primary use: real-time commentary and discussion, current events
    • “While Twitter is mostly a public-facing platform, 13% of its adult users in the U.S. keep their accounts private, a July 2019 analysis found.”

• WhatsApp
  • Is an over-the-top or “OTT” messaging application, owned by Facebook, that allows users to  send text messages, make voice and video calls, and share documents and data
    • Primary use: personal messaging, including voice and video calls

Among the users of these social media sites, many use the sites daily: 74% of Facebook users, 63% of Instagram users, 61% of Snapchat users, 51% of YouTube users, and 42% of Twitter users.  Interestingly, despite these sites’ continued popularity, public trust in them as information sources is not high: “The social media sites with the highest percentage of distrust among all adults are Facebook (59%), Twitter (48%) and Instagram (42%), followed by YouTube (36%).”

Upcoming in this Series

In the next Part, we will continue our 2020 social media update series with a review of some recent news stories of note.