ORIGINAL INQUIRY: An attorney in a capital case is seeking to impeach a witness through Facebook messages that the writer subsequently deleted. Can anyone suggest some method, by subpoena or other request to Facebook, through some tech magic or otherwise, to secure these records?
RESPONSES
Here in Massachusetts we run into this issue a great deal. Facebook, along with most other sites, refuses to honor subpoena's generated by the State Courts on the part of defendant's, although they will honor such subpoena's generated by the District Attorney and law enforcement, arguing that they are protected under Federal Law. To that end, we have sometimes been successful in arguing to the judge that Facebook will honor a subpoena from the District Attorney's Office, and, as such, ask the judge to compel the District Attorney's Office to issue a subpoena for the records and when they receive them, turn them over to defense counsel.
From: joseph maggiacomo III [mailto:jmaggiacomoiii@yahoo.com]
In a recent case handled by our office, the Government provided us with a complete record of our client's Facebook account, which included indications of whether messages were deleted from Facebook and the content of those messages. Facebook provided this information in response to a Search Warrant. Attached are the attachments to those search warrants specifying precisely the property to be searched (Facebook headquarters at Menlo Park, California) and the items to be seized, which included any deleted information still available to Facebook. For the most part, Facebook was fully responsive to that search warrant.
Perhaps the language contained in these attachments may be helpful in drafting a subpoena or discovery demand. At the very least, I know firsthand that Facebook does indeed keep deleted messages (and even pictures).
(See attached file: Sample Facebook Warrant Attachments.pdf)
David Espiritu
Paralegal
Federal Defender
Middle District of Florida
201 S. Orange Ave., Suite 300
Orlando, Florida 32801
(407) 648-6338 ext. 182
Ben Wolff [mailto:ben.b.wolff@gmail.com]
Unfortunately, it is exceedingly difficult to obtain the content of facebook messages without a release by at least one party to the communication, under the federal stored communications privacy act (18 usc 2701 et seq.). Basically, in the absence of a release, the content of any internet posting (as opposed to subscriber and IP address info) can only be released pursuant to a search warrant (although certain other information may also be released pursuant to a court order sought on behalf of a governmental entity). see also https://www.facebook.com/safety/groups/law/guidelines/
I am an attorney with the Georgia Capital Defender's office. I am in and have been for some time a battle with Facebook over obtaining account data. I will be happy to tell you what I have done and the hurdles I have had to overcome.
Feel free to give me a call. My cell number is 770-315-8368.
Crystal H. Bice
Trial Attorney
Georgia Capital Defender's Office
104 Marietta Street, NW - Suite 600
Atlanta, Ga. 30303
(404) 739-5169
I believe that there is an argument that when Facebook will only respond to a search warrant, you can have the court order the prosecutor to get those records – or else risk dismissal. Although the first attached motion and memo is on a slightly different context (federal court and investigative documents), the cases cited would support this argument. The last document attached, a juvenile case, supports this point – that judge ruled that if the government did not assist the defendant in getting facebook records, the court might dismiss the case.
Facebook doesn't maintain deleted posts in their system. They do maintain backups in case of catastrophic loss of the site, as most major companies do, but they are rotating backups and I do not believe you'll get anything from 2 years ago.
If you have a Computer Forensic Examiner you work with, talk to that person. It is not impossible to get back the posts from whichever device was used to post or delete them, since accessing them creates a copy on the device itself, but each device handles deleted files differently and therefore, each device would have different chances of success. I will say, from having done hundreds of examinations myself, that if the post was accessed from a smart phone, it's much harder to get the content back.
A computer has more unallocated space where deleted things can be found, but 2 years is a challenge for sure.
Here is a good bit of info for attorneys going forward, Facebook makes an "archive" available to each user, but each user must actually create it by invoking the archive function.
In the drop down settings tab from main page, Click Settings:
Once you get to the General Settings Page, look at the bottom under the General Account Settings section and you'll see "download a copy of your archive"
Click that link, put in password and Facebook will create an archive in a ZIP file of all the account data, including content of messages. If you have litigation pending, including criminal litigation, notice the other side to preserve Facebook and other Social Media content and provide them instructions so no one can claim they didn't know how to do it. In most cases I am involved with we try to do that immediately since it's been our experience prosecutors are informing witnesses and complainants of the dangers of social media posts….happened just the other day when an alleged victim whose already been caught altering photos, posted on her Facebook page that she was told to delete, gave her FB friends notice, then a few hour later, deleted it.
IN your notice to preserve, put in a sentence to provide proof they have complied (I'm not a lawyer so you guys are on your own on that part).
Know that doesn't quite help your immediate need, but maybe someone else will get some useful info out of that.
If I can help, let me know.
You can contact them here:
Facebook, Inc.
1601 Willow Road
Menlo Park, CA 94025
1601 Willow Road
Menlo Park, CA 94025
Good Luck.
Brian K. Ingram, Owner
Consulting Investigation Services
Tx. License: A-08429
PO Box 2097 Waxahachie, Texas 75168
972-937-3938 Ofc
469-548-9224 Fax
Computer/Mobile Device Forensic Examiner, Internet/eBusiness Investigations,
Email Tracing, Major Case Criminal Defense, Catastrophic Event Investigations
Texas Association of Licensed Investigators: At-Large Director
Intellenet
I can tell you if this case coincides with something the police need as well, the deleted information is available through Facebook.
There was a criminal case I was involved in where the Police did a search warrant on a Facebook account two years ago looking for deleted emails and Facebook turned them over to the Police. I reviewed the data myself and it destroyed any possibility of an alternative defense.
Lance Sloves
"Voted Top 3 Computer Forensic Firms in Dallas by the Texas Lawyer 2010 and 2012"
Lance Sloves
Computer Forensic Services, Inc.
Consulting, Evidence Collections, Analysis and Investigations
2807 Allen St #743
Dallas, Texas 75204
TX Investigators License # A11665
Certified Computer Examiner (CCE) #282
Member International Society of Forensic Computer Examiners
Tel: 214-306-6470
Mobile: 214-498-5666
Fax: 214-306-6470
From: Mary Conn [mailto:mary@maryconnlaw.com]
Sent: Friday, August 14, 2015 9:37 AM
To: Barry Baker Sipe <bbaker_s@hotmail.com>; Eric M. Freedman <Eric.M.Freedman@hofstra.edu>
Subject: RE: attachments please: Re: [HABEAS-L] Facebook Subpoena Issues - Responses Received to Query
Sent: Friday, August 14, 2015 9:37 AM
To: Barry Baker Sipe <bbaker_s@hotmail.com>; Eric M. Freedman <Eric.M.Freedman@hofstra.edu>
Subject: RE: attachments please: Re: [HABEAS-L] Facebook Subpoena Issues - Responses Received to Query
These are received yesterday from Angela Krueger <AKrueger@co.tulare.ca.us>:
I missed your original query. This is the motion plus attachments that I have used to try to get Facebook stuff. (I believe Stored Communications Act shouldnt apply to Facebook because of data-mining, and there are fed cases that support that.) But I have had no luck getting stuff from Facebook directly; I have had some luck getting info directly thru SDTs from the user. (I know your messages are deleted, but you may want to consider SDT'ing info directly from user to establish that Facebook is sole source of info...) I have attached my SDT to the user. (And an application to preserve facebook info...) I have also attached a note re the admissibility of Facebook postings if you have screen shots or whatnot of the posts...
The idea that you have to go thru the DA to get the stuff just pisses me off...
Regards,
Angie
Mary Elizabeth Conn, Attorney at Law
AV Preeminent Rated - Martindale Hubbell Peer Review Ratings
AVVO 10.0 Superb Rating
Mary E. Conn & Associates
440 Louisiana St., Suite 200
Houston, Texas 77002
(713)357-4190
55 River St. Suite 100
Santa Cruz, California 95060
(831)234-7279
From: Barry Baker Sipe [mailto:bbaker_s@hotmail.com]
Sent: Friday, August 14, 2015 8:14 AM
To: Eric M. Freedman <Eric.M.Freedman@hofstra.edu>; Mary Conn <mary@maryconnlaw.com>
Subject: attachments please: Re: [HABEAS-L] Facebook Subpoena Issues - Responses Received to Query
Sent: Friday, August 14, 2015 8:14 AM
To: Eric M. Freedman <Eric.M.Freedman@hofstra.edu>; Mary Conn <mary@maryconnlaw.com>
Subject: attachments please: Re: [HABEAS-L] Facebook Subpoena Issues - Responses Received to Query
Hi,
May I please have the briefs and cases which were attachments to whoever it was that responded as follows:
"I believe that there is an argument that when Facebook will only respond to a search warrant, you can have the court order the prosecutor to get those records – or else risk dismissal. Although the first attached motion and memo is on a slightly different context (federal court and investigative documents), the cases cited would support this argument. The last document attached, a juvenile case, supports this point – that judge ruled that if the government did not assist the defendant in getting facebook records, the court might dismiss the case.”
In addition, may I please have the following attachments:
In a recent case handled by our office, the Government provided us with a complete record of our client's Facebook account, which included indications of whether messages were deleted from Facebook and the content of those messages. Facebook provided this information in response to a Search Warrant. Attached are the attachments to those search warrants specifying precisely the property to be searched (Facebook headquarters at Menlo Park, California) and the items to be seized, which included any deleted information still available to Facebook. For the most part, Facebook was fully responsive to that search warrant.
Perhaps the language contained in these attachments may be helpful in drafting a subpoena or discovery demand. At the very least, I know firsthand that Facebook does indeed keep deleted messages (and even pictures).
From: Stephen Whelihan - PCRX [mailto:WhelihanS@mail.maricopa.gov]
Sent: Thursday, August 13, 2015 6:08 PM
To: habeas-l <HABEAS-L@LISTSERV2.HOFSTRA.EDU>; Eric M. Freedman <Eric.M.Freedman@hofstra.edu>
Subject: RE: Facebook Subpoena Issues - Responses Received to Query
Sent: Thursday, August 13, 2015 6:08 PM
To: habeas-l <HABEAS-L@LISTSERV2.HOFSTRA.EDU>; Eric M. Freedman <Eric.M.Freedman@hofstra.edu>
Subject: RE: Facebook Subpoena Issues - Responses Received to Query
I did not respond, because I have no specific knowledge, but here is how I would approach the problem if my prosecutor will not or cannot get it for me:
Facebook is a corporation. Corporations are required to have an address where process can be served. I believe for Facebook it would be at their headquarters (Menlo Park California?). A court with jurisdiction over that geography can order a subpoena duces tecum or an order to show cause why the records should not be produced. (a court in Sacramento?). Apparently Facebook will ignore court orders outside the jurisdiction unless it is for the prosecutor.
In order to get the order from the court in California to order facebook to turn over the records, since I do not practice in that jurisdiction, I would resort to the Uniform Act to Secure the Attendance of Witnesses from without the State. In Arizona it is ARS 13-4091. I believe virtually all states have a comparable statute.
The procedure involves getting a certificate from the court with jurisdiction over the criminal case and filing it in the court with jurisdiction over the witness with an application for a subpoena. That court may then order the appearance of the witness (i.e. the custodian of records for Facebook) to either com to Arizona testify (and bring the records) at the criminal trial or in the alternative to produce the records or to show why they should not be compelled to do so. This would involve help from a lawyer in the jurisdiction as well as a process server to serve the court’s orders.
I imagine the Facebook lawyers will have plenty of arguments why they should not be compelled to do so, so there would probably be argument to make at the hearing on the order to show cause in California, but I think that is the way to compel production of the records.
From: habeas-l [mailto:HABEAS-L@LI
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