Social Networking and Electronic Discovery: An Introduction

Social networking has changed our world. It has changed both personal communications and work-related communications. Some of the most interesting challenges in the electronic discovery world come from questions about social networking.

One question is: who owns user-created content on a social network? Is it the person who posted the picture; uploaded the video; wrote on someone's wall? Or does the social network itself own this content?
What happens when a user closes her account? Is everything she created wiped off the network, or does some of it remain, perhaps on someone else's personal page? For example, if Mary had a back-and-forth public conversation with Bob, on Bob's personal page, and Mary closes her account, is the conversation erased from Bob's page? Or not? Or is Mary's part of the conversation deleted, while Bob's writings remain?

What about a court's request for evidence? Is a social network obliged to turn over data created by a user? Or does the court go to this user for the data?

There is a federal law which attempted to address some of these questions, but the law was enacted long before today's social networks existed. In fact, the law was enacted in 1986, so it predates even the World Wide Web!

As part of the 1986 Electronic Communications Privacy Act, the U.S. Congress passed the Stored Communications Act (the SCA).
The SCA defines two types of online services:

• Electronic communication services
• Remote computing services

The definitions are straight-forward:

Electronic communcation services include any service that lets users send or receive data.

Remote computing services include any service that lets the public store data or use processing services, over an electronic communications system (a network).

The SCA protects data that is stored or transmitted via electronic communciation services much more than data that is stored or transmitted via remote computing services. Congress' logic seems to have been that by placing data on a remote site, the data user has a lower expectation that the data will remain private, while data sent over an electronic communication service is more like a phone call, where the user has higher expectations of privacy.

U.S. courts are looking to the SCA to fit social networking fact patterns, and they are having difficulty applying the 2010 facts to the 1986 law.

There is much more to be said about social networking and electronic discovery, and I will address the topic in the future.

Cloud Computing and E-Discovery

This week, I'd like to talk about cloud computing and electronic discovery.
What is 'cloud computing'?

To understand the concept, first think of the traditional way of storing information on a computer. When you save a document, you can save it on your computer's hard drive, which is located inside the machine.
If you are on a network, you can also save the document remotely, usually on a bigger hard drive you can access over your network.

In each case, you know where the document is physically located: either on the hard drive inside your computer, or on a larger hard drive in another computer on your network.

Turning to cloud computing, it is possible you are already familiar with the basic concept, if you use internet-based email:
When you send and receive email using an online email account, you don't know where those emails are actually located. They could be sitting on a server right next to you, or on a server thousands of miles away, around the world. But you don't really care. What matters to you is that you can send and receive email, and read emails you have saved in your archive.

Cloud computing is very similar:
You store data on a network, but you don't know where that data is actually located, and you don't really care.
The 'cloud' metaphor gives you the mental image of sticking data into a cloud in the sky, and pulling data back out of it. Once the data is in the cloud, you can't see where it is, and you don't know if there is one copy, or many copies, or if the data is moving from computer to computer. Again, though, you don't care, as long as you can pull the data back out of the cloud. And, of course, as long as the data is secure while it is in the cloud.

Another useful analogy is to compare cloud computing to electricity service.
Cloud computing users may pay for the amount of data they send into, and bring out of, the cloud, just like the way consumers of electricity pay for the amount of electricity they bring into their buildings, to power their appliances and lights.

What are the advantages of cloud computing?
Lower cost and more flexibility.
To store data, a user doesn't need to buy a lot of hard drives, which may be eventually be idle and empty if the user's storage needs change. The user also doesn't need to maintain a network to store and access data.

What are some of the e-discovery challenges related to cloud computing?

One is the concept of possession and control of data.
The end user is almost always in control of the data, as he or she can decide how and when to put it on the cloud, or to remove it from the cloud.
But who is in possession of the data? The end user, or the entity which owns the storage space in the cloud where the data resides?

Another question relates to preservation of attorney-client privileges when storing data in the cloud. Are these privileges preserved?

Document preservation obligations are another concern. If you store your data on the cloud, and you are required to preserve, and not destroy, certain data, can you make sure that the data remains intact?

Privacy questions may also arise. The European Union's privacy standards are much more strict than those in the United States. Where is data being stored? Is it subject to the jurisdiction and the laws of the EU? Of the US? Or of another location?

These are some of the interesting electronic discovery questions relating to cloud computing, and they deserve their own discussions. For the moment, I hope I have introduced the concept of cloud computing, and some of the e-discovery issues related to it.