What is SMI (Social Media Investigation)?

By Clayton T. Robertson (Criminal Defense / Civil Rights Attorney)

When I speak with new clients, one subject that comes up (or should come up) is social media, including specifically how social media plays a role in case investigation. The acronym "SMI" stands for "Social Media Investigation." Another phrase is "social media mining." What does this all mean?

In short, it is now almost mandatory for an attorney to investigate the social media presence of clients, complaining witnesses, reporting parties, other witnesses, and yes, even law enforcement (perhaps especially law enforcement in instances in which their role or credibility is at issue, as it often is). If there are posts, pictures, or other online comments about an incident, we need to know -- whether favorable or unfavorable. If a witness shows a particular bias or prejudice, we need to know. If there are other potential witnesses to an incident, we need to know. This list could go on and on.

There are ethics rules for attorneys on how to handle social media and how to advise clients about their social media. That subject exceeds the scope of this blog. However, what I find most perplexing is how many attorneys fail to conduct any meaningful type of social media investigation (or how some investigators are unaware of the ways to conduct a thorough social media search). If you don't know how to navigate the internet to search for publicly-available "open-source intelligence" ("OSI"), then you are failing your client. This doesn't even include the other common ways to run an effective background search on the opposing party (or key witnesses).

This process isn't brain science either. There are guides on the Internet on how to obtain open-source intelligence. Where it gets complicated, admittedly, is if a particular case requires searches not of the "surface web," but of the "deep web" and, particularly, the "dark web." This is when you need to ask tough questions from a potential attorney. This is true for some crimes more than others. Other topics, such as evidence constituting electronically-stored information ("ESI") containing "meta-data," deserve their own blogs.

If the subject of social media doesn't get raised by your attorney, then raise it. Ignore social media at your peril.