How Useful is Facebook’s “Download Your Information” Feature in E-Discovery?

In October 2010, Facebook announced a new Download Your Information (“DYI”) feature, billed as “an easy way to quickly download to your computer everything you’ve ever posted on Facebook and all your correspondences with friends: your messages, wall posts, photos, status updates and profile information.” The Facebook announcement included a short video detailing how to use the feature. Cnet TV has a more in-depth video. Craig Ball also wrote an article about this feature in the February 23, 2011 issue of Law Technology News.

Introduction

The DYI feature is potentially useful to attorneys in at least two ways: preservation of their client’s electronically stored information (“ESI”) and discovery of an adversary’s ESI. If your matter involves an issue that will likely require your client to produce evidence from his or her Facebook account, it may be advisable for your client to preserve the evidence by downloading his or her Facebook information. It is generally better to err on the side of preservation than to risk the possible penalties of not preserving evidence. Read more about the risks of failing to preserve ESI here. Similarly, if you think that your adversary’s Facebook account contains ESI that may be relevant to the prosecution or defense of a claim, then it may be wise to demand that the adversary preserve that information by using the DYI feature and produce the downloaded files. But, how effective is the DYI feature as a discovery tool? And, is there any way to be sure that the adversary is not hiding any information?

Testing the DYI Feature as an E-Discovery Tool

The DYI feature rolled out to more than 500 million Facebook users over the span of a number of months. When it finally hit my account, I decided to test it out to determine its usefulness as an e-discovery tool. Being a bit of a cynic, my main concern was whether the feature archives deleted content in the event that an unscrupulous adversary intentionally deletes relevant Facebook information. Will the DYI feature uncover the deleted content? I decided to investigate.

The Approach: 1. Download, 2. Delete, 3. Re-download, 4. Compare

Step 1: I initiated the download of my Facebook information. The procedure is easy: navigate to the “Account Settings” (a.k.a. “My Account”) page from the Account drop-down menu. Then, click the “learn more” link next to “Download Your Information.” Click the green Download button, and you will receive a message advising that you will receive an email when your archive is ready to be downloaded. Once Facebook has collected your data, click the link in the email to begin the download. You will receive a condensed (.zip) file containing your photos, wall posts, events, messages, friends list, and profile information.

Step 2: After downloading my data, I deleted from my Facebook profile the following: an email message, some wall posts, comments, photos, and even a friend (not a close friend).

Step 3: Four days later, I re-downloaded my Facebook information to compare the downloaded files with the current data in my profile. It should be noted that I actually re-downloaded my information every day for four days, but only the fourth day’s download file was different than the first day’s file. In other words, Facebook did not take a fresh snapshot of my account every day – it just re-downloaded the same file three days in a row. It is unclear how often Facebook actually takes a new snapshot of a profile.

Step 4: Compare the downloaded files. Except for one email message, all of the Facebook data that I deleted between the first and last DYI files were absent from the last download file. Bothered by the email anomaly, I repeated the process and found that on the second time around, the email message disappeared from the last download file.

Conclusion

According to my test, the Facebook DYI feature gathers a user’s information as it appears in their Facebook account at the time of the initiation of the procedure. The feature does not appear to “look back” and recover deleted information in the user’s account. Thus, if a Facebook user deletes account information prior to initiating the DYI procedure, that deleted information will not appear in the downloaded file. Furthermore, the downloaded file contains no indication that data was deleted.

Based on these findings, it is inadvisable for lawyers to rely solely on the Download Your Information feature for discovery of an adversary’s Facebook information. The feature gives no assurance that a litigant’s attempt to delete evidence will be revealed. Obtaining the data directly from Facebook, for example, via subpoena, may be a better approach. The question remains, of course, whether the data produced by Facebook will include user-deleted data. According to Facebook’s Privacy Policy, “deleted information may persist in backup copies for up to 90 days,” so there is a possibility that subpoenaed data will, in fact, include relevant information.

 

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