Of Social Media Evidence Capture and WebPreserver

Vancouver is already headquarters to big names in the legal SaaS and social media software markets. Both Clio and Hootsuite are homegrown. For a couple of years I suspected that one of these—or perhaps an enterprising partner relying on the market reach and platform of one of these companies—would come along to knit legal and social media together in a product that served the unique needs of lawyers.

The unique need, to state it succinctly, is for an easy-to-use browser-based tool that captures posts (incriminating Facebook admissions, credibility destroying tweets, etc.) and preserves them with “evidentiary quality” for use in prosecution, litigation or administrative proceedings. This is a need shared by family lawyers, personal injury lawyers, criminal lawyers, etc. and which is more narrow than the broader compliance requirements companies face. While comprehensive solutions for archiving all electronically stored information generated by a company and its personnel might be characterized as a defensive need, lawyers wading in at the conflict-end of the pool have an offensive need to be able to seize evidence that will be seen as authentic.

As one US jurist, the Hon. Paul W. Grimm, wrote in a paper on “Authentication of Social Media Evidence”, “While there are multiple evidentiary issues that affect the admissibility of any electronic evidence, the greatest challenge is how to authenticate digital evidence.” In my discussions with judges and lawyers on this point, at least here in BC, I sense that it is generally the practice to print screenshots of digitally sourced evidence. I strongly suspect, and perhaps other commentators who frequent Slaw may agree, that this practice is far from foolproof in establishing authenticity, or proofing against doubt. Certainly if you are concerned with hardening your case against attack, a conscientious approach to social media evidence gathering can only help you.

And there is so much more of this type of evidence, too. Last January (in 2014) I compared a statistic I’d seen which said that in 3.5 years, from June 2007 to November 2010, the keyword “Facebook” arose 230 times among Quicklaw search results. I reran that search and found that between November 2010 and January 2014 (about 3.25 years) over 1,000 more cases resulted. I just did that search again on Quicklaw, and since January 17, 2014 a further 437 cases result. And that is, of course, just Facebook—which teens don’t even like anymore (and is therefore dead, right?). Though I’m surely just flogging a dead horse with this trite observation that social media is everywhere, “Twitter” as a keyword occurred 70 times between June 2007 and January 2014 in Quicklaw results, but in the last 13 months alone it occurred in 40 cases.

Writing in the Judges’ Journal, a quarterly publication of the Judicial Division of the American Bar Association, Sharon D. Nelson and John W. Simek (who are frequent contributors here on Slaw) recently noted that some “experts estimate that Facebook postings emerge as evidence in as much as 60 percent of divorce cases. Personal injury is probably a close second, most likely followed by employment cases.”

When I first started looking around for social media evidence gathering tools last year, I found ones set up for archiving and evidence gathering on a large scale. I did a 30-day trial of X1 Social Discovery which permits mass archiving and subsequent search and review of social media content from numerous networks, including YouTube, Twitter, Instagram and Facebook. But X1 is a client-side software (meaning it’s installed on your machine, not cloud-based). It is feature rich, and complex enough that certified training is actually recommended—not a couple online videos, mind you, but actual on-site certification at no small expense through a company called Digital Shield. I am told that a couple of major Canadian law firms, as well as the RCMP and Department of Justice, are clients of X1, but I wonder whether the full complexity of this product appeals to ordinary practitioners and law firms.

Enter a new tool from another homegrown Vancouver outfit, PageFreezer Software. While I have not tried PageFreezer’s primary application (the eponymously named PageFreezer) I was recently given access to the Beta version of their new tool, a Google Chrome extension called WebPreserver. This tool works very similar to something like the Evernote extension in that when you are visiting a webpage in your browser, you can capture what’s on that page by clicking the WebPreserver extension’s button and sending the snapshot (either full screen scroll view or limited current view) to your downloads folder and/or the WebPreserver servers. The key feature of course is not that you can quickly snap defamatory tweets (or ferociously threatening #KMfaces), since free tools like Evernote can already do that and save PDFs and JPGs in concordance with whatever system of folders, tags and descriptors you so choose. No, the key feature is that WebPreserver applies a timestamp and signature to the data which gives the capture a better chance to be proved authentic. The Beta version also hints at collaborative features which would allow a user to share items and data associated with those items (such as annotations, tags, etc.) depending on account grade.

Screenshot of PageFreezer’s upcoming WebPreserver Chrome Extension

The tool exports the following array of formats and data:

• Screenshot (PDF)
• Screenshot (JPEG)
• WARC (Web ARChive format)
• Metadata (JSON)
• Rendered Web page (HTML)
• EDRM v2 (XML)
• Concordance (.DAT)

In terms of usability, the product could very well work for basic-needs lawyers who simply do not want the setup, training, and own-hosting challenges of a more full service archiving tool. My only questions are:

1. Whether pricing can be set right—I’m currently told that the product might cost as much as $99 USD per month for a professional edition, which seems a little steep when X1 is about $1,500 USD per year. There are also tiers for “Team Edition” at $399 USD per month and “Enterprise Edition” which would vary.
2. Whether the name “WebPreserver” will be possible to use going forward. Reed Tech, a LexisNexis company, appears to have a plugin for its own archive tool by the same name, marketed as “A game-changing tool for researchers and litigation professionals.”