When J.A. Barnes, a social anthropologist, studied a Norwegian fishing village and coined the term “social network” in the 1950s, few could have imagined that the advent of personal computers in the 1970s and the Internet in the 1980s would spawn the social networking services that today connect nearly half of the world’s population.
The web-based and mobile technologies and applications now comprising social media power much of today’s commercial and social communications, providing individuals and businesses with limitless opportunities to generate and publish electronic content: content that sometimes conflicts with policy application representations or the reported facts of insurance claims.
Internet-based social networking platforms rest on the premise that people of similar personal or professional interests want to interact, and the efficacy of a social network depends on such people first being able to find one another. One cannot download a mobile application today without being asked to share its use or permit entry into its data by certain social networking sites such as Facebook. Indeed, Facebook has become a nearly universal means of logging into many applications, rather than establishing application-specific profiles and logins.
Personally Identifiable Information
To facilitate users being able to find one another, social networking sites encourage, or some would say require, users to create profiles containing numerous pieces of personally identifiable information. Some have observed that a fully filled-out Facebook profile contains about 40 pieces of recognizably personal information, including name, birthday, political and religious views, online and offline contact information, gender, sexual preference and relationship status, favorite books, movies, and so on, educational and employment history, and, of course, the user’s picture.
Once established, a user’s profile serves as the fuel for public and site-specific search engines, enabling others to find, observe, connect and share. And share they do. Social networks thrive on users pushing detail-rich text and image content previously considered to be private in an increasingly public direction. The what, when, where, how, and why of users’ personal and professional lives become the stuff of wall postings, status updates, check-ins, and tweets.
Debates as to why people broadcast so much personal and private information aside, social media content provides insurers of all types with opportunities to mine text, images and metadata that can be useful in the investigation and evaluation of both first- and third-party insurance claims. Insurers must be careful, however, to make sure that any gold they mine from social network and media content is not fools’ gold for, as Abraham Lincoln is quoted on the Internet to have once said, “The problem with quotes on the Internet is that you never know if they’re real.”
Search engine result pages are now replete with numerous examples of insurers having successfully utilized social media content in insurance claims decisions. From the denial of further long-term disability insurance benefits to the recovery of a paid but fraudulent auto physical damage claim, insurers have found that social media content can in some cases provide the means of determining whether a claim is legitimate or not. The potential usefulness of social media content can extend beyond the point in time when the claim decision is made, as such useful content sometimes appears after payment is made and well within the applicable statute of limitations for an action to recover such payment.
Insurers interested in using social media content in claims investigations and decision-making should first design and develop standardized and responsible protocols for finding, securing, verifying and utilizing such content. Although each and every claim should be investigated and reviewed on its own facts, insurers know that evidence of non-uniform claims handling forms the basis of extracontractual liability causes of action in policyholders’ and insureds’ complaints against them. For this and other legal reasons, insurers should consider and decide under what circumstances social media research will be conducted, who will be given and permitted access to social networks and media for investigative purposes; what company hardware and software will be used for such research; what restrictions, if any, will be placed on the methods used for such research; whether only public or both public and protected content will be sought; what methods will be used for securing social media content thought to be relevant and useful to claims; and what methods will be used for verifying such content before it will be considered reliable enough to base a claim decision in whole or part.
Finding Content Responsibly
There are essentially only two ways of finding and securing social media content that may be relevant to a first- or third-party claim: with the insured’s or claimant’s knowledge, or without it. Permission to access public or unprotected content is presumed. After all, tweets from an unprotected Twitter account are the functional equivalent of texting to the Internet and theoretically remain searchable and findable for as long as the Internet remains on.
Finding relevant social media content can be likened to fishing without electronics─without the electronic fish finder, water temperature, depth, and contour graphs, anglers must rely on some raw knowledge and basic premises for finding fish. Familiarity with a particular body of water will help, but not guarantee a decent catch. In the same way, being familiar with the various popular and obscure sources of social media content and how those sources store users’ text, images, and metadata becomes invaluable to increasing one’s chance of finding relevant and potentially useful data.
If the Internet is a haystack, then a single item of text or photographic imagery is the needle insurers seek. Knowing an insured’s or claimant’s profile name or email address is a good start. Finding an insured’s or claimant’s social networking profile and social media content is the goal. The spread, however, of such information across the Internet can either be concentrated to particular social networking or media sites, like a hole or area of schooling fish, or wide and sporadic across bulletin boards and club or organization websites, like territorial fish that prefer their own space. Skill, perseverance, and sometimes luck are necessary for finding relevant social media content.
Other than in Minnesota, there currently exists no statutory, regulatory, or decisional law in the U.S. prohibiting insurers from using pretextual means to gain access to protected or non-public social media content. Minnesota Statute 72A.493 prohibits insurers and their agents from obtaining information in connection with an insurance transaction by pretending to be someone else or misrepresenting the true purpose of an interview. “False friending” to gain access to a person’s protected or friends-only Facebook content, for example, would likely violate that statute provided the purpose of doing so related to a qualifying “insurance transaction.”
Thirteen other states, however, expressly permit pretext interviews to obtain information in connection with an insurance transaction where there is a reasonable basis for suspecting criminal activity, fraud, material misrepresentation, or material nondisclosure in connection with an insurance claim. It may only be a matter of time before an insurer that uses pretextual methods to secure protected or non-public social media content is challenged in court for doing so. The potential consequences of obtaining such content by pretextual means potentially range from bad press to bad faith or extracontractual liability. Insureds and claimants have already argued that their protected social networking and media content is private, even though it is openly shared with hundreds or even thousands of their Facebook and MySpace “friends.”
Once a claim becomes litigated, however, accessing protected or non-public social media content may be possible with the user’s knowledge, but without his or her permission. There is a growing line of trial and appellate court case law in the U.S. upholding an insurer’s or insured’s right to discover the protected content of a plaintiff’s or claimant’s social networking account, provided the discovery demand for such content is both: narrowly tailored to produce relevant information and reasonably calculated to lead to the discovery of admissible evidence. Supporting such a discovery demand, however, may require the insurer already to have secured some content that contradicts the plaintiff’s or claimant’s claim, something that is difficult or even impossible to do without either utilizing pretextual means or gaining such content from existing “friends” of the plaintiff or claimant.
Social Media and Subpoenas
As recently as 2009, social networking providers such as Facebook and MySpace would provide user content if served with a civil subpoena. Starting in mid-2010, however, Facebook and MySpace began successfully challenging and quashing civil subpoenas under the Federal Stored Communications Act of 1986. Of course, users of social networking sites may still obtain the content of their own accounts, which may be why in early 2011 Facebook created the means by which its users could download their entire Facebook content. Insurers can also gain access to an insured’s or claimant’s protected Facebook account with a signed authorization from such person─something some courts have ordered in the context of litigated claims.
Insurers that conduct social media research should also consider using IP-address anonymizing software, browsers, or websites for visiting sites such as business websites and blogs on which users can track visits. Knowing which social networks allow users to “see” who’s visiting their profiles or pages can also be valuable. Always use protection when conducting social media research.
Any insurance coverage litigator will tell you that finding social media content relevant to a claim will not be useful unless it can be and is secured in an evidentiary form. It is not just the text and images that should be secured and preserved; be sure to save the metadata as well. Metadata resides in nearly all electronic files and can prove to be especially useful in the detection and identification of fraudulent claims. Word and PDF documents, Excel spreadsheets, image files, and videos likely contain metadata that can reveal authorship, creation and modification dates, and, for photos or videos taken with a GPS-enabled device, even location where the photo or video was taken.
Insurers interested in using social media content should design and develop a procedure for securing such content in a form best suited to ensuring its admission into evidence, should such content form the basis of a claim decision that is challenged in litigation or arbitration. Mere screen prints or captures may not be sufficient, and insurers should always endeavor to preserve electronic files they receive via email or on storage media from their insureds or claimants in those files’ native, original form so as not to overwrite or disturb the files’ original metadata.
Social media content is electronically stored information (ESI) and the rules of electronic discovery in state and federal courts apply to such content. In cases where an insurer believes an insured’s or claimant’s protected but as-of-yet unaccessed social networking account may be relevant to that person’s claim, it might consider sending an ESI-preservation letter along with or immediately after its coverage position letter, instructing the insured or claimant not to take down or destroy existing social media content. The doctrine of spoliation has already been applied to social media content, albeit not yet in an insurance claims context. There is nothing to say it will not apply to litigated first- and third-party insurance claims.
In a now famous cartoon published in The New Yorker in 1993, Peter Steiner captioned his drawing of a canine sitting at a desktop computer speaking to a canine on the floor below, “On the Internet, nobody knows you’re a dog.” That cartoon best sums up the reason insurers must verify whatever social media content they may be able to harvest as potentially relevant from the Internet. Unless and until the purported source of the text or images is verified, it will not be considered reliable enough to be admitted into evidence if the claim under investigation were to be denied and litigated and, therefore, should not form the basis of a decision as respects that claim.
In spite of the popular myth that insurers will look for and latch onto any reason to deny a claim, insurers know that claims decisions must be based on facts that can be proven in litigation or arbitration, and that the provability of such facts depends on the admissibility of the evidence comprising or representing such facts. There exist numerous and varied direct and indirect methods of verifying social media content that has been found and secured. The insurer best prepared to defend its claim decision is the one that has done so before making that decision.
Utilizing the Data
Once found, secured and verified, the text, images and metadata comprising social media content can be useful in evaluating first- and third-party insurance claims. No one legitimately can dispute this. The wealth of information publicly available on social networking websites and services can no longer be ignored or overlooked. Indeed, some have opined that it would be professionally irresponsible or inadequate for an insurer not at least to consider that social media content may be available to assist it in reaching a claims decision. In their defense of their insureds against third-party claims, insurers arguably should always consider this possibility vis-à-vis the individual claimant. Insurers should regard such information, however, in the same way they regard other sources of information they routinely utilize to evaluate claims, taking care to base their claims decisions on as much credible and verified information as possible.
Although the technologies, demographics and law concerning social media continue to change and develop, the use and usefulness of social media content in investigating and evaluating insurance claims are here to stay.