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Can You Keep A Secret?

Even in today’s world of social media, your fraud investigation can violate privacy. Use caution.

August 30, 2011 Photo
The pervasiveness of social media, smartphones and advances in online surveillance has changed our ideas about privacy. What you had for dinner, where you went with your kids, and when you did whatever you did are now just a single "post" away from being public knowledge. And you don't have to be the one who posts it. Mrs. Kravitz might have seen you parasailing at the beach and tweeted it as a novelty, or your son's friend might have commented about beating you at hoops when you were off from work.

Along with the change in sharing is a change in the understanding of what "privacy" actually means in today's fast-paced technological world. But will the new "understanding" hold up under a court challenge, or will your investigative methods be judged to have crossed the line?

Privacy is defined as "the state or condition of being free from being observed or disturbed by other people," according to the New Oxford American Dictionary. While the definition hasn't changed, the application and interpretation is now immensely different. Since the methods of communication no longer require any face-to-face contact, a feeling of invincibility and, for some people, anonymity has developed. As a result, they will post—or allow others to post—what used to be very private information in what is essentially a public forum. As investigators, adjusters, other claims professionals and lawyers, the main questions today are: How far can we go to get the information we need, and what do we do with it when we get it?

Invasion of privacy is still a very real concern during the adjustment and investigative process. Whether it is before or after litigation has begun, care must be taken regarding where information comes from and how it is used. You must make sure you are in compliance with state and federal laws and regulations, such as the Electronic Communications Privacy Act and the Stored Communications Act. In addition to knowing various laws and regulations (remember, ignorance is no excuse), you must also be aware of each website's terms of usage. Many—e.g., Facebook, MySpace, and LinkedIn—will not allow the use of their sites for certain purposes. Creation of a fictitious page, for example, is prohibited. Facebook is clear that "content posted to pages is public information and is available to everyone."

Protect the Investigation
The first step in doing any type of investigation involving an insurance claim is getting consent forms signed and establishing what places can be searched. But what about gleaning evidence from public spaces? Before the popularity of search engines or the use of third-party programs that compile information from numerous sources, investigators had to log some miles on foot and by car. They went to courthouses to get records and local hangouts to talk to the subject's friends (or enemies).

Most investigators knew where to draw the line and could approach the line without going over it. Placing a tracking device on someone's car or entering their house and snooping in their bedroom while pretending to be an electrician would have raised red flags in former days. Knocking on neighbors' doors, though, and asking if they had seen an individual would have been no problem. Now, oddly, people let you into their bedrooms without your having to leave your computer or smartphone, and they provide you with the exact longitudinal and latitudinal coordinates of where they've been by the pictures they upload. The 21st century door knock is now known as a friend request.
The best advice for avoiding the sticky situation of having to explain yourself to authorities, supervisors, judge or jury is to use common sense. Let's take the straightforward surveillance situation. Imagine video monitoring is allowed in your state without prior notification or consent, so you decide to tape someone who is suspected of fraudulently claiming a workers' compensation injury. Predicting where an individual will be is often the toughest part of getting good information, but a simple Google search unveils a Facebook page and a Twitter account that your subject updates regularly. Unfortunately, his Facebook privacy settings block access to most information, but Twitter is open for all to read. He also loves his smartphone and likes to post pictures through Twitter, including several of the locations he is working as part of the stage crew for a band. Essentially, he has not only told you what he was doing, but he has provided you with the exact locations of his work through his Tweets and the imbedded "tags" in the pictures.

So far, you have no concerns over privacy; he has posted all of this information in the public arena and, therefore, has no reasonable expectation of privacy. You track him down, get some nice video and are able to close your file with great success all thanks to his helpful updates.

The use of a restricted Facebook account is more problematic. The privacy settings are a lot like the front door to someone's house. You can pick and choose whom you want to let into your house, and the same is true for Facebook. If you don't care who sees you or follows what you are doing, you may just as well take the door off the hinges. The New York State Bar Association's Committee on Professional Ethics' Opinion 843 on September 10, 2010, addressed just this situation. The committee determined that it is permissible for public pages of a party's social networking websites to be used and viewed by opposing counsel. Open access is fair game, and this would include investigators during the pre-litigation or investigation phase. Such observations are the equivalent of the view from a public street of a person in a public park.

But when a person restricts access to their "friends," they implicitly indicate a higher expectation of privacy. Some information may still be available through standard searches, but it may not be all that an investigator needs. Should an investigator request to be "friended" to gain access to the subject's daily life? Is this the same thing as knocking on someone's door and asking if you can come inside and look around?

Although there doesn't appear to be a broad court precedent on this issue yet, the Connecticut Bar Association issued Informal Opinion 2011-4 on March 16, 2011, which was related to counsel's hiring of a private investigator to friend an opposing party. It was the opinion of the committee that doing this would violate the Rules of Professional Conduct. While the opinion deals with parties in litigation already, it is likely that the same would apply to pre-litigation investigations.
There are methods for obtaining what is often considered private information, but be forewarned: Much of that requires extensive legal proceedings. Facebook and MySpace can be subpoenaed, but the process is lengthy, and any procedural misstep will find you starting over. Additionally, even with the consent of the user, the companies are hesitant to produce anything. Several courts around the country have issued orders requiring users to give Facebook consent to produce the content of that individual's page, but Facebook has relented only on occasion. By the time you have gotten to this stage, much of the good information has probably been removed.

Overall, if you are a passive searcher and are not taking assertive steps to "get in the door," you should be fine. The expectations of privacy have not changed merely because the method of investigation is sitting at a computer rather than pounding the pavement.

That's Too Much Information
Occasionally, you can get more information than you ever imagined receiving when you started your search. Some items that are obtained should be handled with caution. Medical and financial information should be handled with extreme care. Additional care must be taken not to divulge private information to third parties during a follow-up investigation or interviews with co-workers, employers, customers or vendors. Most of the problems and privacy concerns do not arise from viewing or obtaining the information but, instead, from the dissemination of the information to third parties by the investigator.

Information that is obtained during an investigation must be properly stored and protected. Courts recognize the need for information gathering, but they also insist that investigators and insurers properly control what happens to it once obtained. At the end of the day, an investigator will need to be able to justify how the information was collected, where it was stored once received and how it was used. During an investigation, it is also very important that you confirm that the person on whom you have information is the correct subject. Since many investigations are done electronically, you might be getting great information on the right name for the wrong person.

The cloak of anonymity and disconnection allows for individuals to place all of their thoughts and ideas out in the world for public consumption. Whether that is their intent or not, the world is watching, and investigations have become easier to perform from a desk. However, with power comes responsibility. So much information is available that, if you are not careful, you may just find your company exposed to its own lawsuit.
Robert Luskin is a partner with Goodman, McGuffey, Lindsey & Johnson, LLP. John J. McHale is a senior supervisor of the Investigative Services Section of Erie Insurance.
About The Authors
Robert Luskin

Robert A. Luskin, Esq., is managing partner at Goodman McGuffey Lindsey & Johnson. He has been a CLM Member since 2011 and can be reached at  rluskin@gmlj.com

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