The answer is not always no. However, you must note that social media posts cannot be retrieved once the user deletes them. In the most extreme cases, attorneys can subpoena the SM company (Facebook, Snapchat, etc.) but in most cases, it’s not effective since many of these companies aren’t required to oblige. In this article, we will discuss the resources available to those needing access to social media posts for legal reasons.
Subpoenas: This process requires a legal basis, and usually happens during litigation where either party asks for a court-approved warrant
Data Retention: Some social platforms retain user data even after the post is deleted but this is an ever-changing variable.
Collaboration: Investigators or lawyers may work with social media companies to obtain access to private accounts if within the boundaries of the law.
The Wayback Machine is an incredible resource for accessing different versions of webpages that may have been deleted or updated and, therefore no longer available. It allows you to go “back in time.” Think of it as the digital version of library archives.
However, not all sites are available through the Wayback Machine, some websites block their website crawlers or can be difficult to maneuver for the average person. You need a specific URL when searching with the wayback machine for example, if you want an old post from someone’s Instagram account but they have changed their username, you must look them up through their prior account name.
The purpose of this platform is to look back on how the internet has evolved over the decades, fun to look back on but not very beneficial for investigative needs.
Here’s an example of using the Wayback machine to access a social media site:
Can you use the WayBack machine for private Instagram accounts?
No, the platform can only collect publicly available information online and therefore has no access to someone who has a private social media account. Some celebrity Instagram accounts can be accessed.
How to Access Deleted Instagram Posts
Access to deleted content posted by a user can easily be brought back to life through the settings option.
From your settings, you can restore photos, videos, reels, videos, and Instagram stories that were deleted.
As of 2024, on Instagram “Content that you choose to delete is removed from your account immediately and moved to Recently deleted.”
If after 30 days, the post has not been recovered, it will automatically be deleted.
Destruction of Relevant Evidence
For example, under ABA Model Rule 4.2, attorneys and attorneys’ agents are prohibited from requesting a connection to a represented party through social media networks.
Some social media platforms, such as LinkedIn, send an automatic message to accountholders informing them that their profile was viewed and by whom. Certain jurisdictions, such as New York, view such automatic messages as contacting the account holder. If the accountholder is represented by counsel, then the communication could be considered a violation of ethical rules.
In the worst-case scenario, both counsel and the client may face sanction for failure to preserve relevant evidence. Under ABA Model Rule 3.4, a “lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value.”
The user’s right to privacy is a commonly disputed issue. In many cases, litigants have their Facebook or Instagram profiles privately shared with only a limited amount of “friends.” However, we have seen time and time again, that courts reject this statement because “private” does not mean “not public.” Due to sharing the content with others, even if it is a small group, the user cannot have a reasonable expectation of privacy concerning their content.
Facebook Statement on Subpoenas
The following statement comes from Facebook for the Congressional Research Service; “We may share your information in response to a legal request (like a search warrant, court order or subpoena) if we have a good faith belief that the law requires us to do so. This may include responding to legal requests from jurisdictions outside of the United States where we have a good faith belief that the response is required by law in that jurisdiction, affects users in that jurisdiction, and is consistent with internationally recognized standards. We may also share information when we have a good faith belief it is necessary to: detect, prevent, and address fraud and other illegal activity; to protect ourselves and you from violations of our Statement of Rights and Responsibilities; and to prevent death or imminent bodily harm.”
There is no reasonable expectation of privacy in material posted on Facebook. Almost all information on Facebook is shared with third parties, and there is no reasonable privacy expectation for such information.
Additionally, Facebook encourages parties to resolve discovery issues without involving Facebook. For these reasons, an attorney is unlikely to gain electronic information through a subpoena to Facebook. (According to Tulane)
So, Can Investigators Access Facebook/Instagram Accounts?
Unless there is a subpoena, the account is under discovery and considered evidence or the account is public, then no investigators cannot have access to someone’s social media account.
In the realm of investigations, professionals often turn to a spectrum of resources, each with its own challenges. One such avenue is the Wayback Machine—an intriguing digital that will remind you of time travel but for webpages. While it offers a retrospective glance at the internet’s evolution, its practicality for investigative purposes is limited, primarily due to its inability to access private accounts or content.
If you don’t know the ins and outs of digital sharing laws have someone on your team who will. Talk to one of our in-house Digital Investigation specialists today.
Dive deeper into the world of risk management and investigative insights with our curated selection of related articles.