Is Ediscovery for Twitter Strictly for the Birds?

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Over the last five years, Twitter has regained prominence as a major avenue of social, political, and interpersonal discussion.

Limited to a measly 240 characters, the tweet is a concise and at times powerful mechanism people use to speak truth to power, snark to celebrities, or simply witticisms to friends. And perhaps more than any other social media application, the potential for legally actionable content is only growing on this platform. 

Is Twitter a lame duck or golden goose for ESI? 

Twitter is one of the big four social media platforms that has dominated the digital sphere over the last decade. But, unlike its counterparts Facebook, Instagram, and YouTube, Twitter has not historically been the belle of the legal ball when it comes to uncovering digital evidence.

From instigating armed insurrections to lobbing defamatory statements and even making legally questionable claims about products, people have increasingly found themselves in hot water over the contents of their Twitter feed. As such, legal practitioners are looking at this social media platform with renewed interest. 

Hiding behind a claim of satire or “a different sense of humor” will not prevent nefarious tweets from being impactful in a case. In one instance a person used 10 separate accounts to harass a judge and this behavior was the linchpin of the stalking case. 

The risk and evidentiary value of tweets does not end in the U.S. In the UK, for example, people have been imprisoned for tweeting abuses at Parliament members and incitement of the 2011 London Riots. The impact of tweets on legal matters does not stop at matters of national security: libel and slander cases are increasingly using tweets as evidence

Let’s talk turkey on managing Twitter data

As with other social media platforms, collecting Twitter data is somewhat more complex than meets the eye. 

Private info requires a subpoena or court order

While some material is publicly available, much will require either the cooperation of the account holder or more challengingly Twitter itself. Information not readily accessible to the public includes the following: 

  • Password
  • Email address
  • Cell phone or address book (helps Twitter suggest users you know)
  • Location information ( where you’re tweeting from)
  • System log data (mobile carrier, device and application IDs, IP address, browser, the referring domain, pages visited, and search terms)
  • Specific tweets set as private

Per the company’s FAQ on legal requests

“Obtaining non-public information, such as an email address used to sign-up for an account or IP login information, requires valid legal process like a subpoena, court order, or other local legal process, depending on the country that issues the request.

Requests for the contents of communications (e.g., Tweets, Direct Messages, media) require a valid search warrant or equivalent to be properly served on the correct Twitter corporate entity. Law enforcement or government agents must demonstrate a higher burden of proof before a judge will authorize such a request.

Twitter may seek to narrow requests that are overly broad, request additional context if the nature of the investigation is not clear, or push back on the request for other reasons.”

Time is of the essence

As with other social media platforms, time is of the essence in preserving tweets. While the original tweet may only be active in users Twitter feeds for 18 minutes on average, the tweet itself lives on in perpetuity in your feed. Your most recent 3,200 tweets are visible in your feed and Twitter’s advanced search function can drill down even deeper based on timing, user, and subject matter. Users can at any time delete incriminating tweets, and the window of time to recover these incriminating bits of digital evidence is merely 30 days. 

via Sprocket Websites

Don’t ask for the kitchen sink

Requests for data from Twitter must be sufficiently narrow and specific for the social media behemoth to comply. And Twitter is not afraid to fight back if they feel one or both of these factors are not met. 

As recently as last October, Twitter sought to quash a subpoena for personal information in Rich v. Butowsky et al., No. 18-cv-00681-RJL (D.D.C. Oct 6, 2020). In this high-profile case related to Wikileaks and the 2016 presidential election, Twitter sought to gouache the Rule 45 subpoena based upon First Amendment rights to anonymous speech. In this case, the narrowness of the request which excluded personal communication and demonstrated material relevance of the user’s identity, and the fact that only Twitter itself could directly provide the information, the court ruled against the media giant. 

In general the best practice with regard to Twitter requests should be to ensure your request is limited to material that is clearly relevant to the case, time-bound, and not readily accessible from any other data source. It is also important to include the following data points in any request: 

  • Username 
  • URL of the Twitter profile 
  • Date range(s) of the requested information
  • Details about the specific information being requested and relevance to the case
  • Valid email address for Twitter to acknowledge receipt of the legal request.

Authentication remains paramount

Twitter can be a treasure trove of information for litigants, including for statements attributable to an individual, entity or governmental body or official. Litigants must always authenticate that the evidence proffered from social media was generated by the person the account is purported to belong to. 

Federal Rule of Evidence 901 states to establish authenticity, “the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it” and this done via presenting the “distinctive characteristics” of an account according to 901(b)(4). These characteristics may include account name, photos of the account owner, nicknames, IP address, specific topics, or slang. Judge Paul Grimm summed it up best as: “If it looks like a duck, waddles like a duck, and quacks like a duck, it must be a duck.”

  • Establish that the account or phone number is registered in the purported author’s name, including address
  • Confirm that there are no other accounts with the same name
  • Demonstrate the author’s exclusive access to the account or phone
  • Demonstrate that the content of the messages or postings are relevant to the case in a material way

Use the right tech to review

As with other short format communication, it is imperative that you work with a technology that can render the Twitter feed in near-native format, complete with emojis, GIFs, and embedded images or video. Twitter can export data as a .JSON file which can pose a challenge for some review platforms to render. 

Because .JSON data can be tricky, ensure you have a rendering of what the Twitter feed will look like in a review platform before proceeding (see my prior article about Slack which also exports as .JSON). Thankfully DISCO has mastered .JSON rendering, but that is not the case for every provider or software and that can be a time-consuming or costly issue. 

Is Twitter data an albatross around your neck? 

While it can at times be more difficult to admit a tweet or full Twitter account into evidence due to people trolling or hard-to-authenticate accounts, there is a precedent in case law. This is especially true when a tweet or account is promoting violence, harassment, or harm to an individual as well as if the account is materially misleading potential buyers. 

People play fast and loose with what they post on Twitter, so for defamation suits, false claims, defamation, and many other legal causes of action Twitter can be a wealth of highly material evidence in a case. With the right approach, the process of procure the relevant data need not be a big headache, and the result can be impactful to case. 

Check out the rest of our blog series on emerging data types

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