10 things to know about presserving socialmedia
- 1. 10 Things to Know About Preserving Social Media Rakesh Madhava overnments, corporations, Social Media Content’s G and organizations of every Role in Litigation kind are adopting Internet- The courts are beginning to catch based technologies that radi- up with the deluge of social media, cally impact the most and judges are displaying less pa- essential of human activities tience with organizations that haven’t – the act of communicating with one properly managed their archives. In another. Internet channels are many one case, Arteria Prop. Pty Ltd. v. and varied, but in total, the purview Universal Funding V.T.O., Inc., the of any organization communicating judge ruled in no uncertain terms, with internal and external audiences “This court sees no reason to treat must include not only websites, but websites differently than other elec- also blogs, video outlets, and social tronic files.” media efforts – most notably Face- (ESI), most do not have a process in In that particular case, negotia- book, LinkedIn, and Twitter, not place to preserve, archive (securely tions for a loan had collapsed, and the to mention rapidly evolving geo-lo- maintain in an indexed and search- plaintiff asked for paper copies or cated services, such as Groupon, able database), and research social “snapshots” of the defendants’ website Foursquare, and Yelp. Employing a media. Undoubtedly, failing to cap- as it looked at the time of the negoti- “website only” online presence has be- ture and preserve social media activ- ations. When the defendants could come antiquated as quickly as having ities risks violating any number of not produce copies in any format, the a website became a necessity. compliance, regulatory, and legal re- plaintiff claimed spoliation. The judge While most organizations have re- quirements, and in particular, it found in favor of the plaintiff, ruling peatable processes in place for pre- leaves organizations woefully unpre- that “… the Court finds that Defen- serving e-mail and other types of pared for producing social media data dants still had the ultimate authority, electronically stored information during e-discovery. and thus control, to add, delete, or SEPTEMBER/OCTOBER 2011 INFORMATIONMANAGEMENT 33
- 2. modify the website's content. There is Governance: An Ounce of Preven- no evidence to the contrary.” tion,” by the end of 2013, half of all And, in a sign of the rapidly companies will have been asked to emerging landscape, the American produce material from social media Academy of Matrimonial Lawyers re- Using their substantial websites for e-discovery. According to leased a study in 2010 indicating that the report, “… in e-discovery, there is 81% of its 1,600 members had seen an knowledge about no difference between social media increase in the number of cases that preserving electronic and electronic or even paper artifacts. had relied on information taken from The phrase to remember is ‘if it ex- records as a base, social networks in the previous five ists, it is discoverable.’” years. organizations should The leading think tank on elec- be able to build a tronic document retention, The Se- It’s Time to Act! dona Conference®, includes as the As more organizations and their strategy for preserving first principle in The Sedona Princi- employees begin to use social media, social media, taking ples: Best Practices Recommendations and more types of social media de- these 10 issues into and Principles for Addressing Elec- velop, the time to act is now. As tronic Document Production: daunting as the task may seem today, consideration. Electronically stored informa- it will only become increasingly diffi- tion is potentially discoverable cult. Using their substantial knowl- under Fed. R. Civ. P. 34 or its edge about preserving electronic state equivalents. Organiza- records as a base, organizations tions must properly preserve should be able to build a strategy for electronically stored informa- preserving social media, taking these tion that can reasonably be an- 10 issues into consideration. ticipated to be relevant to were preparing to launch initiatives). litigation. 1. Organizations need to use And, according to a 2010 report by Organizations should treat social social media. the University of Massachusetts, media as they would any other ESI From the point of view of records “The Fortune 500 and Social Media: and assume it is potentially discover- managers and the legal department, A Longitudinal Study of Blogging, able. Under Rule 34 of the Federal it would certainly be easier to simply Twitter and Facebook Usage by Rules of Civil Procedure, litigants can ban social media like Twitter and America’s Largest Companies,” 60% request “any designated documents Facebook. But ignoring the enthusi- of the Fortune 500 had a Twitter ac- or electronically stored information – astic embrace of social media by mil- count with a Tweet in the 30 days including writings, drawings, graphs, lions of people is simply not a realistic previous to the survey; this is dra- charts, photographs, sound record- approach, and marketing depart- matically up from 35% in 2009. For- ings, images, and other data or data ments and salespeople will most cer- tunately, principles currently exist compilations – stored in any medium tainly be clamoring in opposition of around how to manage social media, from which information can be ob- any such ban. One only needs to look unlike the situation when e-mail use tained either directly or, if necessary, at the failed efforts of dictatorial first began to explode. after translation by the responding regimes to shut down social media ac- party into a reasonably usable form tivities in their own countries for 2. Organizations need to ...” proof of the inevitable failure of a ban. preserve social media – There are also regulatory require- Much like e-mail, social media is and websites. ments. Some regulatory authorities, quickly becoming an essential aspect Organizations have a clear obli- including the United States’ Finan- of communications and marketing gation to preserve and archive all so- cial Industry Regulatory Authority, within organizations. A 2010 Har- cial media. Federal Rules of Civil the Securities and Exchange Com- vard Business Review report, “The Procedure Rule 26 requires organiza- mission, and the Food and Drug Ad- New Conversation: Taking Social tions to be able to produce all poten- ministration, require social media to Media from Talk to Action,” reported tially responsive information for be preserved. State and federal free- 79% of 2,100 organizations surveyed e-discovery purposes. dom of information laws may also re- were using or planning to use social According to the recently re- quire organizations to retain and media (58% were using it, and 21% leased Gartner report “Social Media produce social media postings, 34 SEPTEMBER/OCTOBER 2011 INFORMATIONMANAGEMENT
- 3. Tweets, and the like. or simply taking a “screen shot” of will suffice. But it’s not possible to All laws, regulations, and re- what can be viewed in a browser. A print a YouTube video or save it as a quirements should drive a social screen shot won’t include metadata or JPEG or PDF. And social media sites media archiving policy, and those other information that can’t be “seen,” don’t display all of the content avail- policies should complement the orga- but which may be critically important able in a single interface. Facebook, nization’s existing records and infor- in a lawsuit or regulatory hearing. for example, uses an algorithm to dis- mation management protocols. When it comes to archiving, some play the content the application be- Organizations should carefully con- may think printing a file or saving to lieves the user is most interested in. sider the underlying business rea- PDF using a browser’s print function Through Web 2.0 architecture, sons; considering not only the reasons why they should preserve, but under what rationale there is not a need to preserve. If an organization decides not to preserve some or all of its so- cial media, it needs to be able to point to the law or regulation that says there is no requirement to do so. 3. Social media files often involve more than posts. Social media doesn’t exist in a vacuum. When posting on Facebook, an employee may link to a YouTube video. Or an organization’s website may hyperlink to a PDF of a white paper from another site. An archival solution has to in- clude the original Facebook post or website record, but it also has to be able to follow and capture the YouTube link or third-party source’s white paper. An organization will need to be able to preserve embedded native files, whether those are PDF files, Word documents, Excel spread- sheets, or PowerPoint presentations. Otherwise, it’s akin to archiving e-mails without saving attachments. 4. Use APIs to capture, archive, and review data from the web. Compared to preserving the Word files employees create and share, ac- curately preserving social media can be extremely complicated. It requires knowing how application program- ming interfaces (APIs) work. Simply stated, software programs communicate with each other through APIs. When archiving social media, consider whether the solution is actually pulling data from an API SEPTEMBER/OCTOBER 2011 INFORMATIONMANAGEMENT 35
- 4. APIs can be accessed by outside ap- 5. Social media archiving API. oAuth allows third-party site ac- plications. At this time, the most ac- solutions need to cess to information stored with an- curate way to preserve web data is to be customized. other service provider without sharing make use of APIs available from so- While guidelines and suggestions their access permissions or the full ex- cial media properties. Facebook, for exist around social media archiving, tent of their data, thus allowing or- example, has no reliable methodol- an organization can’t simply grab an- ganizations to preserve protected ogy for its displaying of data to indi- other’s social media archiving policy employee accounts. vidual users. The amount and types and duplicate it exactly. One size does Implementing a preservation of data displayed varies greatly from not fit all. Facebook, Twitter, Flickr, strategy is not as easy as simply flip- session to session and from user to and other types of social media have ping a switch. An organization will user. Mapping preservation applica- unique API structures. need to make decisions about the so- tions to the Facebook API allows full Archiving solutions should involve cial media data it wants to capture access to the entire population an open authorization (oAuth) ap- and preserve. It should consider an of data for any targeted user’s Face- proach, which provides an open stan- employee’s Facebook page – when book profile. dard for authorization that simplifies someone responds to a post on that page, does that response need to be in- cluded in the preservation? Or, if an organization Tweets about another or- “We will always post our openings with ganization’s business, does the organ- ization being Tweeted about need to ARMA, it gets us the best results.” preserve that Tweet? L.H., Kirkland & Ellis Thinking 6. Consider setup or installation about requirements. Once an organization understands “ARMA has the best database of advancing the need for a social media archiving policy, it needs to start considering technical issues. Will it require and records management professionals in the industry.” T.E., InfoCurrent your career? benefit from an applications service provider (ASP), software-as-a-service (SaaS), or a behind-the-firewall net- ARMA International’s work installation? What provider can CareerLink has helped hundreds offer the needed solution? of members find new and exciting Many archiving products/services “It is one of the most cost effective positions in the information require a system that must be in- and time effective recruiting tools management profession. stalled onto networks, and data is then we utilize.” saved to on-premise servers – at the The Job Board lists current provider’s or the client’s location. This J.G., Ernst & Young openings from companies around approach can be costly (buying and maintaining servers for ever-expand- the globe. You can find valuable ing data stores) and may be vulnerable resources and tools to help your to breaches and outages. career evolve. With today’s evolving technology, other options exist, such as ASP or Create your confidential profile cloud-based SaaS solutions. An ASP and get started today at model simply means that a software www.arma.org/careers instance is hosted off-site and accessed remotely, as with many website con- tent management systems. Cloud- based solutions, theoretically, should be better situated to scale as data in- creases. And with these types of solu- tions, overhead costs are often much 36 SEPTEMBER/OCTOBER 2011 INFORMATIONMANAGEMENT
- 5. lower than that of on-premise servers, often it will “crawl” (deploy web spi- and protection against outages are ders to extract data) for its archiving mitigated. Very large organizations purposes. can save every one of their employees’ At this point, Twitter makes it rel- Tweets without much worry about atively simple to capture feeds in real The key to social media reaching the end of their available time, while LinkedIn and Facebook, stores. preservation is not only because of their inconsistent presenta- to have it preserved, tion of data, are a bit more challenging. 7. Robust search capabilities of the preservation but to have it easily 10. Think about how content are necessary. accessible, indexed, for legal holds will be Any archival system deployed and search-enabled. locked or excluded from needs to include highly sophisticated normal RIM schedules. search capabilities that will keep pace An organization will need Like other types of data storage, with the exploding use of social media profound command social media may be subject to legal and give the organization command holds, or an organization may other- of its data for it to be over the preserved data. Though or- wise need to deviate from the usual re- ganizations may have few social media constructive and tention schedule. It will need to feeds now, they may have many more discovery-ready. develop a strategy for executing legal in the near future. For example, Hyatt holds, and it will also need to have the Hotels now has a unique Twitter ac- technology to execute this. count for each of its 451 properties Much like organizations must be worldwide. able to silo specific data, as mentioned Advanced search tools need to be before, they also need to be able to sort a minimum ante for any archival serv- out the data that should be deleted ac- ice or product to be a viable and worth- state in any way, or it could face legal cording to regular schedules and keep while solution. The key to social media sanctions. the data that may be potentially re- preservation is not only to have it It also needs to consider how to re- sponsive in case of a lawsuit. preserved, but to have it easily acces- strict access to the preserved data. If sible, indexed, and search-enabled. An specific data can’t be put in a silo, any- The Revolution WILL Be organization will need profound com- one with access to the archive will be Televised … on YouTube mand of its data for it to be construc- able to view every piece of information These are the beginning stages of tive and discovery-ready. in the database. This can compromise the social media revolution. Denying the confidentiality, privilege, and pri- this or delaying a preservation strat- 8. Review and production from vacy of the information. The right egy will only compound the difficulty the preservation is critical. workflows will limit access of poten- to execute. Despite the massive An organization has to assume tially relevant information to those amounts of data that exist today, the that further down the road it will need who have the proper clearance. quantity is still manageable. Putting it to be able to manage its archive and off will only make the mountain of easily produce data from it. Huge 9. Aim for capturing data in data that much higher when it must fi- amounts of social media data will not real time. nally be climbed. be useful if it can’t be searched or data For most social media outlets, it For records management profes- can’t be produced from it in a reason- will not be sufficient to preserve on a sionals who survived the sea change ably timely manner and on a budget. monthly basis. Real-time capture and that e-discovery brought, the situation At the outset of the process, an organ- preservation is the standard to ensure with social media archiving should feel ization should be developing the work- the most forensically sound and com- familiar. When organizations need to flows that allow the data to be copied plete archive. Sending a 140-charac- create policies on the fly, it’s extremely and made available for relevance re- ter Tweet can take mere seconds, and difficult to catch up. Take action now view in e-discovery platforms. then it is out in the universe, even if to be sufficiently prepared. Of course, being able to search and later deleted or lost by Twitter. A real- review the data isn’t quite enough. An time capture solution provides the Rakesh Madhava can be contacted at organization needs to be able to do so best chance of archiving everything. [email protected]. See his bio without altering the data’s original An organization needs to consider how on page 54. SEPTEMBER/OCTOBER 2011 INFORMATIONMANAGEMENT 37
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