Featured Article
Article Title
Widening the net: Use of social media data in personal injury and disability evaluations
Authors
Lisa M. Drago; Independent Practice, Annapolis, Maryland, USA
Anthony J. Giuliano; Department of Psychiatry, Beth Israel Deaconess Medical Center, Massachusetts Mental Health Center, Boston, Massachusetts, USA
Abstract
A central tenet of forensic mental health assessment is the use of multiple sources of data. Traditionally, these sources have included clinical interviews with and observations of the examinee, written records review, psychological test data, and interviews with collateral sources. Data from social media and social networking sites (SNS) is now widely used in civil litigation. However, existing professional practice standards and guidelines do not specifically address the use of SNS data. This leaves forensic mental health evaluators with little guidance as to why, when, and how to incorporate SNS data into their evaluations. We review the extant literature on the use of SNS and other social media data in personal injury and disability cases, including legal, ethical, and practical considerations, with the goal of providing forensic mental health practitioners with a framework for making decisions about when and how to incorporate these data into their evaluations and opinions. We advocate caution in conducting independent searches of social media and the Internet, and in making inferences about internal states based on SNS postings. To illustrate these points, we include a case study.
Keywords
Case study; disability; ethics; forensic psychology; personal injury; social media
Summary of Research
"A foundational tenet of forensic mental health assessment (FMHA) is the use of multiple sources of data. Indeed, use of a multisource, multimethod assessment strategy to gather and review reliable and relevant information is a well‐established standard of competent forensic assessment practice… Not surprisingly, among the newer collateral data sources increasingly available to forensic mental health experts is an examinee's social media information, some of which may be highly, sometimes uniquely, relevant to the legal issues in question in disability and personal injury cases" (p. 149).
"From a forensic mental health perspective, a central issue in both personal injury and disability cases is a change in functional capacity. That is, there must be a demonstrable decline in the examinee's functioning arising after the onset of the illness or injury and which is attributable to the illness or injury… Existing professional practice standards and guidelines, such as the Ethical Principles of Psychologists and Code of Conduct and the Specialty Guidelines for Forensic Psychology, do not specifically address the acquisition and use of SNS data in assessments. Similarly, more thorough discussions of issues, challenges, benefits and risks associated with use of Internet‐based data, including social media, have only recently begun to emerge" (p. 150).
"Most U.S. adults use social media. Facebook and YouTube are the most widely used, followed by sites like WhatsApp, Instagram, WeChat, TikTok, FB Messenger, Snapchat, X (formerly known as Twitter), and Pinterest, among others. Many SNS routinely encourage individuals to post personal information that can be easily accessed by others, and participation in social media has been shown to foster self‐disclosure. Most users of Facebook, Snapchat, and Instagram report they visit these sites at least once a day. While the nature and pattern of usage seems to vary by age, gender, and ethnicity/culture" (152).
"The ethics of digital data acquisition and use can quickly become complex. Over the past 20+ years, authors across disciplines have articulated substantive philosophical and legal issues related to informational privacy, trust and autonomy, justified cause, authority, necessity, means, social sorting, function creep, distance, chilling effects, and power, some of which is drawn from the history and applied ethical philosophies of surveillance ethics. As succinctly and precisely framed by Bush et al., the fundamental values relevant to the collection and review of collateral information are the examinee's right to privacy and the judicial system's right to have expert opinion derived from all information relevant to the formulation of that opinion, highlighting the EPPCC's principles of respect for autonomy and justice and the SGFP Guideline 8.03 related to the acquisition of collateral and third‐party information" (p. 152).
"SNS data is widely used and frequently litigated in civil cases. It is often obtained by the opposing party through the process of discovery. Under the Federal Rules of Civil Procedure (FRCP), parties may discover all "relevant" information so long as it is not "privileged" from discovery. Courts have generally not considered SNS data to be privileged. FRCP Rule 26(b) (1), as revised in 2015, states that parties may obtain discovery regarding non‐privileged matters relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit" (p. 154).
"Forensic mental health practitioners are required, both ethically and legally, to base their opinions on sufficient and appropriate information and techniques. This means collecting comprehensive, relevant, and valid data; interpreting data appropriately; and formulating reasonable inferences based on the data collected. This is best achieved by collecting data from multiple reliable sources (i.e., multiple source model) and attempting to corroborate data by comparing information across sources… Because evaluations in disability and personal injury cases always involve an assessment of how the examinee's functioning is now different than it was in the past, SNS data has the potential to address this issue by providing snapshots of the examinee's functioning at different points in time, including before and after the alleged injury or onset of illness" (p. 155).
Translating Research into Practice
“While our field currently awaits the development of consensus guidelines or practice standards, we provisionally propose the following practical considerations for integrating social media and other Internet‐based data into forensic assessment practice. Ideally, authentic, representative Internet‐based information, including SNS and other social media, should enhance incremental validity by providing uniquely corroborating and/or contradictory data points that inform clinical interviews and forensic formulations.
1. Consider the multiple data source model when formulating a forensic evaluation approach, identifying information sources that are of legitimate relevance to psycholegal issues and how this information might be obtained (e.g., credible sourcing). To the extent possible, conduct a thorough multisource, multimethod assessment…
2. Obtain consent from the examinee and other collateral sources. Specifically disclose the use of SNS data in the informed consent process with the retaining party, examinee and/or collateral sources, explaining whether, to what degree, and social media data will be used in the conduct of the evaluation…
3. To the extent possible, avoid conducting an independent Internet/social media search, and obtain relevant collateral information from third parties (such as the retaining attorney). It should be noted that the use of deceptive means to obtain otherwise private SNS data (e.g., creating a fake social media account to gain friend” status from an examinee) is completely inconsistent with the ethical Principle C (Integrity) of the EPPCC which states that psychologists do not engage in “fraud, subterfuge, or intentional misrepresentation of fact…
4. Weigh social media data in terms of authenticity, context, and representativeness. Authenticity addresses questions such as whether the person depicted is, in fact, the examinee; if the date of the post is accurate; if the social media account is controlled by the examinee (i.e., not a “fake” account); and if the image or text has been altered from the original. Adopt a circumspect approach to Internet‐based data, especially if obtained through examiner‐conducted searches, given the known uncertainties. Context refers to the date, location, and circumstances surrounding the posted material which must be considered prior to drawing conclusions about the meaning of the data. Careful consideration of context often facilitates reconciliation of discrepant data. Representativeness has to do with the extent to which the depicted behavior is typical of the examinees behavior in the relevant time period. Be mindful that social media postings frequently do not paint a complete picture of the examinee's life.
5. Consider the relevance of the data to the psycholegal questions being addressed by the evaluation. Both personal injury and disability cases hinge on a change in functional capacity. To what extent does the corroborating or contradictory SNS data provide (incrementally useful) information about the examinee's functioning before and/or after the onset of the claimed illness or injury?...
6. Discuss the SNS data with the examinee in the interview. Ask the examinee to authenticate the material, explain the context, and provide background information. Explore any inconsistencies (e.g., “I'm confused. You told me earlier you haven't taken a vacation since the accident. But you said these pictures were taken last month inJamaica.”)...
7. The strength of clinical and forensic inferences lies on a continuum from weak to strong depending on their evidentiary basis. Draw inferences from SNS data cautiously and integrate with other data. Determine if there is a scientific basis for the assumptions being made and deliberately incorporate a multi culturally and linguistically sensitive lens to all data, including SNS and other social media information…
8. List SNS and other social media or Internet‐based data in sources of information in reports and testimony. Include the acquisition method, the date of the post, the identity of the poster, the site, and the date of the search…” (p. 156 - 158).
Other Interesting Tidbits for Researchers and Clinicians
“Social media has become part of the fabric of everyday life. Its use in civil litigation has become established, despite the current dearth of specific ethical standards and forensic practice guidelines addressing these issues. We expect that the pace of research and the promulgation of updated guidelines and statutory regulations will accelerate. Atpresent, responsible and competent forensic work comes down to the individual practice level and the necessity of staying up to date given the rapid changes in this area. Consistent with the extant literature, we encourage forensic practitioners to adopt a thorough multisource, multimethod approach to forensic assessment and selectively ac-quire digital information that is of legitimate relevance to psycholegal issues, keeping in mind its potential value and limitations, as well as the potential biasing impact of irrelevant information. Responsible forensic practice then requires critical evaluation and weighting of social media information with the same rigor with which one would treat any collateral source, in part, by considering ethical issues, state and federal laws and regulations, authenticity, context (including cultural‐linguistic factors), representativeness (e.g., consistency over time and across contexts), and relevance. Whether convergent or divergent or both, social media information would then be thoughtfully and contextually integrated with data from other sources to formulate inferentially strong and justifiable opinions or conclusions” (p. 159 -160).
