MLJ Volume 36-1.pdf - Robson Hall Faculty of Law

Social Incrimination 223
on Facebook alone. 4 These websites facilitate individuals sharing aspects of
their lives with friends, acquaintances, or the public at large, depending on
the privacy settings of the account. Photos, videos and personal statuses
can be added to the website from home computers or from smart phones.
Primarily physically located in California, social networks utilize large
data storage facilities and rely on proprietary systems to control the upload
of files and privacy settings used. The scale and complexity of these
systems 5 means that litigants or investigators must rely upon the
companies’ retrieval processes, and have very little ability to retrieve data
deleted from the server. Unlike a personal computer where a single drive
can be forensically scanned for deleted emails or files, lawyers seeking to
use evidence from social networks must often pre-emptively capture the
files themselves, obtain the cooperation of the opposing party, or (in
criminal investigations) request that the hosting company preserve a user’s
account.
Each social networking website has its own unique format and appeals
to its own niche. In order to appreciate the potential uses of social
networking evidence, it is important to understand the various companies.
Several of the most prominent are discussed below.
A. MySpace
MySpace, one of the earliest popular social networks, originally gained
in popularity by allowing anonymous profiles and by catering to music
fans with its ability to upload music and to customize the look of a profile.
From its founding in 2003 up until early 2009, it was the predominant
social network in North America. Cases involving MySpace often involve
obtaining evidence against sexual predators, proving gang affiliation for
those who relied on its partial anonymity to brag about their exploits, and
more recently, providing evidence in civil cases. The main legal issue that
arises is authentication, because users may create accounts under any
pseudonym. Generally, profiles were public and available to anyone so,
4
Facebook provides estimates for its advertisers: see online: Facebook,
(Login required).
5
The number of users grows every month. One source estimated that by the middle of
2011, the company had over 750 million monthly user. Jason Kinkaid, “Facebook
Now Has 750 Million Users” (23 June 2011) online:
.