Jeremy Bentham's Panopticon, an 18th century architectural structure first imagined for prisons, works as a metaphor for the power of social media in the 21 st century. The idea behind the panopticon is that any group of people (inmates, workers, students, a community) that is separated from each other but constantly visible to a central authority will become both the object and subject of power. In short, those who are watched change their behavior to appeal to the desires of the watcher.
This is why an empty police car parked near the highway gets people to slow down. Or why putting a home security sticker on the door of your house, even if there is no alarm system in place, lowers the chances of a break in.
But when it comes to Social Media, the lines between watcher and watched can get blurred pretty easily, along with the power shared between the two. Especially when the watched believe that they hold more power than the watchers.
It's this vanity that fuels sites like Rich Kids of Instagram, which feature young people posing for pictures in front of expensive cars, chugging from magnums of champagne, and snapping receipts from high-end stores with totals rivaling a mortgage payment. They are driven by the idea that the person with the most visibility has the most power. It doesn't matter if that visibility is positive or negative, if the viewers' response is likes or hateful comments, they can't help wanting to be seen.
But as Michel Foucault later wrote in his book Discipline and Punish, “Visibility is a trap."
More and more, social media is being used as evidence against the wealthy in cases of fraud, according to a recent article in The Telegraph, which states that, according to leading cybersecurity firms, “social media posts are used as evidence in around 75 per cent of all litigation cases."
This falls in line with what Dera Nevin, Director, E-Discovery Services, Proskauer Rose LLP, stated in a recent interview: “E-Discovery will appear to be business as usual for a short time. However, the character and composition of E-Discovery data is changing and will move beyond email and current productivity applications, such as the MS Office suite and PDF. The younger demographic has turned to texting and instant messaging, often through multiple simultaneous channels, and prevailing data will include text, video, audio, social media, and new metadata structures within the same data artifact. The underlying shift in the data will require new tools and methods to preserve, retrieve and search and review these data types."
She goes on to suggest that, “While enterprise technology lags consumer applications, corporations are moving to structured systems for business information and communications, and are also moving to the Cloud. At the same time, enterprises are also starting to invest in collaboration systems which reimagine what documents look like. Instead of multiple versions of one document passed between employees via email, now multiple persons can work on the same document simultaneously, their unique contributions captured in metadata associated with the single document. Our search and review tools will need to adapt to this evolution in personal and business data."
The ability to capture and analyze metadata was a key element in a recent fraud case where a chief executive of a collapsed Russian bank claimed he should not be investigated in the UK because it was not his primary residence. Daniel Hall, director of global judgment enforcement at Burford Capital, was quoted in the Telegraph, saying "Part of the evidence we used was social media, chronologically showing data posts of the family members and the principal himself … living and operating here, so [proving] the UK is the correct jurisdiction."
And the reach of social media being used as evidence isn't simply confined to the person under investigation, but expands to encompass their broader social network. Again, it's the vanity of thinking that the power falls on being the center of attention, on being watched instead of being the watcher. Investigators more and more are finding the weak link of that vanity with the rich kids of Instagram.
Again, the Telegraph states that, “In one debt recovery case where a man claimed to have no items of significant value, one of his children gave the game away by posing on the family's £12 million super-yacht in the Bahamas." In another case, a private jet was seized because the son of a man under investigation for fraud, posted a picture of himself and his father standing in front of the plane on Instagram.
When collecting new data sources within a corporation, there is a tug of war between business needs and legal/regulatory obligations, but regardless, the obligation to collect remains the same. So also does the overall approach to collection, as Antonio Rega, Director of Berkley Research Group, points out: “The essence of how to deal with these new media types is not really that different from the way we've handled media types in E-Discovery all along, which is to identify data within an organization and then decide what to do with that data. Once there's an understanding of what exists, then you can plan collection strategies."
In the world of E-Discovery, there is a lot of uncertainty around what is required to collect from these new data sources and how to preserve/collect this data in a defensible, cost efficient fashion. According to a recent Exterro survey, in-house legal and IT professionals deemed Preserving and Collecting New Data Types as the most controversial E-Discovery issue from 2015.
To better face the challenges that new data types bring, Nishad Shevde, Director of Strategic Operations at Exterro, suggests this Collection/Preservation Checklist:
- Find out what data types are currently being stored, then find out how and where is that data preserved
- Find out who is accessing that data and how it is being accessed
- Put policies and procedures in place to manage data, and train/audit for compliance
- Always Communicate: Talk to IT, Talk with Peers, Talk with other Business Units
- Work with outside counsel/consultants to create a reasonable process for preserving/collecting these new data types
New Data isn't going anywhere, and the ability to manage and collect the ever-growing list of data sources is vital in order to be successful when it comes to E-Discovery. For more information and expert analysis on this, and other e-discovery challenges, Download Exterro's latest E-Book: Road Tested: 2016 E-Discovery Travel Guide