EU-ReguStand trend spotting - Twitter - e-discovery requires managing your risk exposure smartly
Twitter - a microblogging tool - is becoming ever more popular. However, please remember that in the US, Federal Rules of Civil Procedure render electronic communications from both defendants named in a lawsuit and third parties who may have information pertaining to the case admissible in court.
Accordingly, can you produce Twitter records or those from Facebook if asked in court during e-discovery?
Is your enterprise ready for this new challenge? We tell you the ropes to skip and how to reduce your risk exposure
In the past social networking and keeping in touch happend either by:
- having coffee (tea if you prefer) with our co-workers or hanging out around the coffee machine or
- visiting the local Starbucks coffee shop and meeting friends or strangers to do social networking.
These days, people use social networks to stay in touch with close and not so close acquaintances and friends. One of the latest fads used for staying in touch is microblogging during a conference with the help of Twitter.
Nevertheless, using Twitter and similar tools, whilst working in the office or attending a conference, raises some legal issues. We addressed this matter here:
e-discovery - how it works and what it means for your enterprise
Just to be clear, tweets mailed out to one’s followers (people who have subscribed to one’s feed on Twitter) are similar to a text message or an SMS. Therefore, they are prone as e-mail to being subpoenaed as evidence in a lawsuit.
The Case
In August 2004, New York was the place where delegates to the Republican National Convention assembled. You may remember the rolling protests. These were described as they happened in text messages that spread from mobile phone to mobile phone in New York City and beyond.
Institute of Applied Autonomy and txtMob messaging code
Feb. 4, 2008, the New York City Law Department issued a subpoena to Tad Hirsch, who wrote the code that created TXTmob asking for:
1) all text messages sent via TXTmob during the convention,
2) the date and time of the messages,
3) information about people who sent and received messages, and
4) lists of people who used the service.
In a letter to the Law Department, David B. Rankin, a lawyer for Mr. Hirsch, called the subpoena “vague” and “overbroad,” and wrote that seeking information about TXTmob users who have nothing to do with lawsuits against the city would violate their First Amendment and privacy rights.
Legal experts claim that if the New York City Law Department changes its request and restricts it to the 50 or so people involved in the court case, the judge might go for it.
Fact is that, unfortunately, a text messag or an SMS is as prone as e-mail to being subpoenaed as possible evidence in a lawsuit.
Trend SpottingThe above case indicates that whenever one provides such a service for political activists, it is a smart move to make sure that personal information is not being stored. Neither should data about who is accessing what and communicating with whom be kept.
Over-broad government request or court subpoenas can put people at risk. In the US as well as some European countries, national security and criminal investigations might be used to build lists and dossiers of protesters for surveillance purposes.
What about corporations and Twitter?
Twitter stores personal information about whoever’s accessing the service and who is following whose tweeds, etc.
Text messaging via Twitter allows workers or activists to communicate and centrally manage large crowds or groups of people. These could be spread over wide geographic areas. Put differently, during the recent Forrester Conference with a Twitter tag of *forrmarketing08 , people at the conference were getting messages from those watching the online video feed in far away places.
Imagine a lawsuit whereby somebody claims that with the help of Twitter another party stole some intellectural property from the claimant during the Forrester conference. Forrester might also be named in the lawsuit as a party. Who will the judge ask to provide records. Probably Twitter but also the conference organizers will have to produce some records subpoenaed by the court.
The most important thing to remember is that Twitter opens a whole new bag of worms regarding the collection of information and its safekeeping. Once e-discovery happens your corporation may be asked to produce:
A) all tweets that were sent during the conference and tagged with *forrmarketing08 ,
B) the date and time of the tweets,
C) information about people who sent and received messages (i.e. conference delegates as well as others watching online video feed), and
D) lists of people who used the service during the conference.
To be forwarned is to be forarmed. This means that you must prepare to be able to satisfay regulation and the court when during e-discovery stage of a court case. Unless these records have been archived and labelled properly you will fail to produce them in the limited time given by the court. A not so pleasant and possibly extremely costly experience - don’t forget reputation and trust in the costs your firm will incurr. Unless you can archive and label these streams of messages properly today, you will be in deep trouble when e-discovery happens tomorrow.
*forrmarketing08, e discovery, EU Regustand trend spotting, Forrester Research, managing risk exposure, political activism, public protests, Republican National Convention, SMS messages, subpoenaed, Tad Hirsch, tweets, Twitter
