February 6, 2012

Discovering the “Cyberspace Fingerprints” of the Litigant

Lyle Harris

On November 30, 2011, the Vancouver Police Department announced that 25 people face a total of 61 charges for allegedly taking part in the June 2011 Vancouver Stanley Cup riot. Crown Counsel approved the charges against the suspected rioters who came from all areas of the lower mainland of British Columbia and Seattle.

Vancouver Police told local media that charges were recommended after new technology created a searchable database of 30,000 YouTube videos and Facebook images. This database enabled police to find matching evidence of suspects and crimes.

In October of 2011, a similar situation occurred in England, where a Facebook user who posted a message urging people of Manchester to “start riotin’ ” and “put Manchester on the map” was jailed for three years.

The Stanley Cup riot was remarkable for the role that social media played in the event: many rioters paused and posed for photographs; some even posted these photos on their own social media sites, incriminating themselves. Onlookers intent on documenting the riot took photos and videos which appeared on Facebook accounts and on YouTube. Online shaming campaigns resulted in some riot participants being fired from their jobs or removed from athletic teams. The morning after the riot, hundreds of volunteers suddenly appeared, to clean up the mess that had been left by the rioters the night before. These volunteers, also, had been arranged through a social media networking site.

These events reveal that online social networking has become a very powerful tool of communication. However, one of the consequences of the new technology is that people who use social media now leave “cyberspace fingerprints”. In fact, almost anything a litigant posts on line can be tracked by highly trained forensic experts using sophisticated tools through a surprising array of venues, including Facebook, Twitter, or the internet. Twitter, Facebook and internet communications of the litigant and his or her “friends”, can form a virtual “map” of the activities of the litigant, to be obtained by an opposing litigant.

In addition to leaving a cyberspace fingerprint, many unforeseen outcomes can happen to a litigant in cyberspace. For example, a particular communication can “go viral”; that is, can be sent in minutes through numerous text, email or Facebook accounts; so that what was thought to be confidential ends up in thousands of computers around the country and the world. If the laptop, tablet, or smart phone of a litigant is stolen or lost, the litigant is at the mercy of the thief or finder of the device. This could be a potential disaster in many respects. Finally, even if a litigant imposes privacy settings on his or her social media account, social media fingerprints can be obtained about the litigant from Facebook “friends” who have not imposed privacy settings on their data.

The lawyers at Harris & Brun are aware of all of these issues. As a result we are well able to advise our clients about the cyberspace pitfalls of litigation in the 21st century.

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