Years ago I sat in my Dad’s office after email had really just become a thing. I was a kid at the time, but I remember distinctly my father talking to a divorce client who was, as divorce clients normally are, pissed off. However, this divorce client wasn’t only pissed off, they were technologically literate, something that my poor father most definitely was not. You have to understand, up until recently, and even now, lawyers are like the most technologically backwards people in the world by necessity. Part of this is because the courts are technologically backwards and keep insisting we do things in certain ways, and part of it is the cost of an update is prohibitive because developers of software that’s really only used by the legal field are all like “Lawyers have money! Bleed them dry!”
But I’m getting off track a bit, aren’t I? We were talking about Dad and the fucking Bill Gates of divorce clients. Anyhow, Dad had gone through his normal spiel about not contacting the soon-to-be-ex, you know, “don’t call them,” “don’t ask friends how they’re doing,” “don’t leave nasty notes,” “don’t try to burn down their new lover’s car with lighter fluid while sobbing ‘WHY DENISE? WHY?’ into the night.” The typical stuff. The client, part of the way through, said “What about email?” After a suitable amount of time in which the client explained to Dad that email was “electronic mail” and, assuredly, was becoming all the rage and not at all the work of the Devil, Dad nodded sagely, leaned back, and said words that I’ve never forgotten:
“If you don’t want it read back to you in court, don’t fucking send it. Period.”
Sage words, and even more sage in today’s era where we don’t have email as the issue. People know that, eventually, some lawyer or investigator will track a fucking email account down to them. What we poor souls that decided a J.D. was a really good use of a hundred grand have to deal with now is clients who think they’re being anonymous online, or, even if they know they aren’t being anonymous, don’t fucking care because, as they constantly say in the fecally laced tones only a true dipshit can manage, “It’s just the internet.”
So, although we touched on this topic before, let’s be crystal-fucking-clear this time: the internet is real goddamn life.
On the Internet, I’m CuckSlayer92.
No, on the internet you’re an asshole. Because only an asshole has a name like that. But more importantly, you’re an asshole who’s being an asshole because you think you have the shield of anonymity to hide behind. Well, thanks to goddamn James Woods, you should know that you don’t have any such fucking anonymity.
Take something like Twitter, where people sling insults like dope dealers sling death. You want to pop into the mentions of a recognizable person and start taunting the shit out of them? You better pray those motherfuckers don’t have the thin skin of a 90 year old grandmother (seriously, do they replace your skin with tissue paper as you age?) and the resources of a petulant man-child with a questionable acting ability. Because if they do, that motherfucker may track you to the grave.
Twitter stores information on all of its users, including the account creation information, login locations, and all of that great jazz. And Twitter will respond to a subpoena if it’s properly issued. And that means Twitter will disclose relevant information regarding your account to the proper authorities, or plaintiff’s counsel, when placed under a court order.
I only log in to Twitter using a hidden IP!
Cool. What about the email you used to create the Twitter account? You only login to that using a hidden IP? Because Twitter’s definitely giving that shit up, and your email service provider is the next step in the grand game of Let the Subpoenas Fly, Motherfucker!
At some point, a dedicated attorney will track you the fuck down, because once we have the IP address you used to login from, we have your fucking Internet Service Provider, and then it’s the matter of serving out another subpoena on them to link the IP address to you. And that’s where the fun really starts, because once we’ve linked the IP address from the email to an ISP account you have access to, we can link the Twitter account that you created using that fucking email to the same ISP account. Then it’s just a simple matter of printing out the fucking tweets and sticking them in front of you during discovery to directly ask “You posted this shit, didn’t you PoundMyMAGAss87?”
I Read That They Don’t Like Subpoenas.
The times are fucking changing, boy-o. A social media site may not respond to a subpoena that seeks content, but if a civil subpoena is limited to seeking only information regarding the account owner, it’s much more likely to be listened to. Why? Because the information as to who owns something like a social media account isn’t as goddamn sensitive as the contents of an email message. And, of course, the fact is a subpoena is only going to be issued after an attorney specifically requests that you confirm or deny the ownership of an account in a deposition or interrogatory, and normally requested as part of a motion to compel when your dumbass says “I’ll just deny it, there’s no way they can track it to me anyhow! I’m ANONYMOUS.”
Motherfuckers, I’m not even anonymous. Anyone with enough grit and determination (and trust me, that isn’t a lot these days) can identify me pretty readily. So when a lawyer puts something that is definitely fucking yours in front of you and you decide to flat-out lie, you’re playing a goddamn dangerous game. You’re gambling that the lawyer doesn’t have enough information to call your ass out on the lie. And trust me, we get paid a lot of fucking money to catch you out in a lie…and then, once we’ve caught you out, arguing to the court that we caught you and now we’re entitled to a more formal means of getting the information proving that you’re a lying shitbag, DeniseIsAWhore929.
I, an attorney, have a reticent client who has failed to disclose an anonymous social media account.
Your client is a fucking moron, and let me tell you why:
- Your client has left evidence that weighs against them and can be directly linked back to them laying the fuck around;
- Your client has disregarded your advice that they disclose any accounts where they have mentioned things relevant to the case;
- Your client is most likely harassing someone with that account at some point in time and now looks like a shitbag, and/or;
- Your client probably has more secrets.
Seriously, as part of your intake these days you should be telling clients, flat out, no stops: “Don’t post about this shit on social media. Period. Just fucking don’t do it. Even if it isn’t under your name, don’t post about this shit. In fact, change your goddamn privacy settings right the fuck now to friends only, don’t accept any new friend requests, and stop fucking posting anywhere until all of this shit is resolved. And burn your computer and smartphone. It’s the only way.”
My Client Says They Don’t Have A Social Media Presence.
Your client is a fucking liar. It’s 2018. Social media isn’t limited to goddamn Facebook. It includes Reddit, LinkedIn, Whisper, Twitter, etc. It’s more than just one fucking thing these days, and your client is either willfully or ignorantly lying to you. So either they’re a lying liar who lies, or they’re a fucking moron. One of the two, but unless your client is in their 80’s and has a fucking Nokia brick phone, don’t trust them when they say there’s no social media out there for them in any form. It’s likely not true.
What your client likely means is “I don’t have any social media that can be linked back to me, because I’m so goddamn smart that my username is ‘MustangBob92,’ a totally random name and not at all a reflection of my love of the Ford Mustang, Robert, and the year I graduated high school. Nobody will ever figure it out, I’m a goddamn genius.”
Clients. Fucking. Lie. If I could write a practice guide, it would just be those three words written on every goddamn page in a variety of fonts.
So lock that shit down now and make sure that shit is disclosed to you immediately. Because let me give you another secret: people are goddamn idiots, and once they discover MustangBob92 on Twitter, they’re going to Google the shit out of every variation of that username because you can bet your ass old Bobby the Magnificent used it on at least a dozen forums like “How to bury my wife in the shed.com” or some shit.
Should we just delete that shit?
Not if a lawsuit has been filed or you have reasonable notice that a lawsuit will be filed. That’s called “spoliation,” or, to use the normal criminal charge “destruction of evidence.” Once you’re on notice that there may be a legal action coming in, you and your client are under an absolute duty to preserve relevant evidence. That means that you can’t advise your client to destroy evidence. Period.
It doesn’t necessarily mean that they can’t change the privacy settings on an account overall, though, so long as the posts can be produced in discovery.
Why does all this matter so much?
We’ll get to that Monday. Right now, I want to lay out the fact that none of you can hide from the long arm of the motherfucking law behind an anonymous social media account. As to the evidentiary issues that arise from the shitposting and spamming?
We’ll get to that shit next time as we discuss Cory Carnley, the Florida high schooler who assumed he was safe in the loving arms of Reddit.