Data Privacy Day: Social media ‘private’ data is fair game for e-discovery in court

This Saturday, Jan. 28, is Data Privacy Day and it would be a great time to ponder our cyberculture, how much you share online and how well you manage your online reputation. In an increasingly connected world, everything people do online, from emailing, texting, uploading photos, making purchases online, to clicking the “like” and “retweet” buttons on favorite web pages, all contribute to their online reputation.

In honor of Data Privacy Day, Microsoft released new data from a survey of 5,000 people whose online behaviors and attitudes vary widely and how their actions impact their overall online profiles and reputations. With respondents from the U.S., Canada, Germany, Ireland and Spain, the research shows that while 91% of people have done something to manage their overall online profile at some point, a smaller percentage, 67%, feel in control of their online reputation, and fewer than half, 44%, actively think about the long-term consequences of their online activities. 14% of people believe they have been negatively impacted by the online activities of others, even unintentionally so. Of those, 21% believed it led to being fired from a job, 16% being refused health care, 16% being turned down for a job, and 15% being turned down for a mortgage.

Microsoft Trustworthy Computing made a great infographic which you can see in full here. Tips to help maintain a positive online reputation can be found here.

“Your online reputation is shaped by your interactions in the online world and spans the disparate and varied data about you, whether created and posted by you or others.  This information can have a lasting presence online, and can affect your life in many ways – from maintaining friendships, to helping you keep or land a new job,” said Brendon Lynch, chief privacy officer, Microsoft Corp. “Our research reinforces that people want a range of privacy options. Microsoft is committed to offering meaningful choices and helping to ensure that people have the tools to make informed choices online to better manage their privacy and online reputations.”

For people who roll their eyes about the “dangers” of oversharing online cause that’s not real life, you might want to consider the University of Texas study that found who you are digitally on Facebook is who you are offline in real life. Researchers examined the “big five personality traits – openness, conscientiousness, extraversion, agreeableness and neuroticism” and “self-reported Facebook-related behaviors.” The researchers “found a number of links between observable information on Facebook profiles and the users’ actual personalities.” In fact, the “study determined that online social networks are not an escape from reality, but rather a microcosm of peoples’ larger social worlds and an extension of offline behaviors.”

Lawyers have long snooped on social networks to vet jurors, just as employers do before hiring employees. Another valuable tidbit to consider comes from Aaron D. Crews, an attorney who specializes in e-discovery. Crews said, “Postings on social media websites are a modern, electronic form of communication in a highly public forum. When such types of communication become relevant in civil litigation, they are discoverable regardless of the privacy policy of the social media website. More importantly, they are discoverable even though the poster believed the posting would be confined to the ‘private’ social media account or page. Stripped of the trappings of their newness, social media postings are no different from other types of communication — whether private or otherwise — that courts have allowed parties to obtain in discovery in civil litigation. However we resolve the other privacy issues surrounding social media, when viewed through the lens of civil litigation, social media posting is just another example that there is nothing new under the sun. The sooner social media users and their lawyers realize this, the better off everyone will be.”

Social media is here to stay, but just because you can share photos, statuses, geolocation data, and what’s happening for real in your offline life, it doesn’t necessarily mean you should share it. It’s an incredibly slippery slope, an opening for social engineers, cybercriminals and real world crooks and stalkers; it’s more data to be scraped and gobbled up by marketers and advertisers, and social networking posts also provide “open source” intelligence for government or law enforcement. Above all, the more data we share as opposed to protect, the more it becomes the “norm” for society . . . meaning for society as a whole, it lowers what is considered a reasonable expectation of privacy. The more that happens, the more some of us stop and ask WTF happened to the Constitution in this digital age?!?

Happy Data Privacy Day!

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