Using Social Media to Investigate Fraud
Reprinted w/permission from Risk Management and the authors
By: Debra D. Chambers and Nichole C. Novosel - Swift, Currie, McGhee & Hiers, LLP, representing clients in workers compensation matters
Social media offers one of the most cost-effective ways to investigate false workers compensation claims and other instances of fraud. To ensure investigations are conducted effectively, ethically and admissibly, here is a quick guide for accessing an individual’s social media and using any evidence collected.
Rules of Engagement for Investigations
Certain professions have rules and limitations on when and how an individual may interact with others on social media. For instance, the rules governing professional conduct for lawyers have been interpreted to prohibit them from “friending” or “following” an individual represented by another attorney. However, risk managers and insurance professionals often find themselves with less guidance. It is important to keep the goal of the investigation in mind at all times. Why do you need the information? How are you planning to use it? Are there any guidelines concerning how the information may be disclosed? What are the possible outcomes after it has been disclosed?
Many companies do not have rules directly outlining what is appropriate to investigate or how to investigate via social media. However, other company policies may provide guidance. For instance, in the event of litigation or a workers compensation claim, there may be set procedures to determine when an investigation is necessary, who is responsible for investigating, how much information from an investigation can be discussed and with whom the information can be shared.
Company values and business ethics can also serve as guidelines for permissible investigation. As a general rule, use only information the individual has posted publicly. If their profile is visible to you because you were connected or “friends” prior to the investigation, it may be permissible to use. Do not violate privacy rules or employ false pretenses, pretext or deception to obtain access to or investigate a social media profile.
Guidelines for Use
Once you obtain information from your social media investigation, it is essential to understand how it can be used. First, determine with whom to share it. If you are investigating a claim, share the information with your claims adjuster and defense attorney, if you have one. Internally, use caution in disclosure, both to ensure you are adhering to company policies and to prevent the individual from changing their privacy settings. Once you find useful information, continue monitoring future social media posts.
If litigation is pending, preserve the information and record how you obtained it. In a hearing or trial, an attorney will need to lay a proper foundation and authenticate the evidence for use—in other words, they will need to show the evidence is what they claim it is. Often, the individual who found and saved the information will be the one who can testify to this. For example, an attorney can introduce a screenshot of a social media post showing someone who claimed to be injured using the allegedly impaired body part. If you took the screenshot, they will likely ask you to testify about what the picture depicts and how you obtained it.
Finally, consider using the information to do more investigating. There may be people in the individual’s network with additional publicly posted information that could be useful. There may also be location data and timestamps to help further the investigation.
Many states have a mandatory reporting requirement for potential insurance fraud. In Georgia, for example, any person, “having knowledge of or who believes that a fraudulent insurance act is being or has been committed may send to the commissioner a report of information pertinent to such knowledge of or belief.” Insurers or agents, however, are obligated to report suspected fraud. While other states have similar reporting requirements, the details may vary widely.
Even if suspected fraud is reported, keep in mind that there are no guarantees a state’s fraud unit will press charges or pursue the potential issue further, as fraud units often want to be fairly confident in their case.
Tips for Investigations
Overall, when conducting an investigation using social media, the following best practices can help ensure the most optimal outcome:
- Investigate early. Often, an individual will change privacy settings once their claim is in litigation.
- Use general internet searches for phone numbers and names first.
- Continue to monitor the individual’s social media profiles.
- Keep track of all of the information you obtain. Print copies, log search terms, locations of information and how you found it. Also, identify potential witnesses who can testify about the social media evidence.
- During a deposition or examination under oath, ask the individual if they have certain forms of social media and, if so, what their usernames are. Also, request their full name (including middle name) and ask if the individual goes by any other names, such as maiden names.
- Consider all social media platforms, including Facebook, LinkedIn, Twitter, Instagram, YouTube, Pinterest and TikTok. Other websites may also be helpful, such as Angie’s List or that of the Secretary of State, which lists all businesses registered in the respective state. Other potential sources of information could include wearable technology, such as Fitbits and Apple Watches. If you are searching LinkedIn, ensure your privacy settings do not allow anyone to see that you have viewed their profile.
- Determine with whom the individual interacts. Be sure to look at comments, likes, friends, relatives and co-workers. These people may have posts or tags with helpful information related to the individual. If an individual’s profile is set to private, there may be coworkers or witnesses with access to their profile. However, you must still be cognizant of privacy considerations and ethics.
- Carefully observe photographs, videos and geo-tagging. Aside from what the individual is doing, observe what they are wearing, such as a uniform for a new job, and their location.
- Conduct a reverse image search. This can be done with Google and other search engines. Sometimes, a reverse image search can reveal profiles across different platforms.