The most common question in cases involving Open Source Intelligence (OSI) to support an electronic investigation, is: “To what extent may an attorney ethically use social media during case investigation and discovery?”
The question is not at all surprising. The extent to which we can develop and use information from social sites, and other types of OSI, has a really high “creep factor”. My answer has always been: “If a person has given up information and made it publicly available to anyone with a browser and knowledge of where to look, then what’s the question?”.
Two weeks ago, the ABA agreed… mostly. In the ABA’s “Formal Opinion 466″, issued on 4/24/2014, the ABA states, in part:
A lawyer may review a juror’s or potential juror’s Internet presence, which may include postings by the juror or potential juror in advance of and during a trial.
In summarizing, the opinion states:
In sum, a lawyer may passively review a juror’s public presence on the Internet, but may not communicate with a juror. Requesting access to a private area on a juror’s ESM is communication within this framework.
The fact that a juror or a potential juror may become aware that the lawyer is reviewing his Internet presence when an ESM network setting notifies the juror of such review does not constitute a communication from the lawyer in violation of Rule 3.5(b).
While this opinion is specific to jurors, might it also apply to witnesses, attorneys, and other parties to a case? I would think so.
Link to the ABA Journal’s Final Opinion PDF
Deepweb and Google Cheatsheets Updated
If you are interested in researching OSI (Open Source Intelligence), and are an attorney, you will want to request a login to Vidoc Razor’s RazorSuite. The RazorSuite includes a connector to conduct your own OSI searches in a fraction of the time, and with more information, than manual techniques. You can request a login here.
If you prefer to do your own manual work, I have been maintaining two “Effective Internet Search” cheat sheets since 2009. The cheat sheets cover the best sites for developing information manually, as well as how to use Google’s advanced features effectively when performing online searches of people, places, and companies.
Link to the updated DeepWeb Cheat Sheet
Link to the updated Google Search Cheat Sheet
