May 8, 2012
In fact, it’s the worst nightmare of many parents for their children to be approached online by an adult posing as a teen.
This nightmare came true for Nelson and Danyelle Cope, when adult Steven Prince logged into the account of a Facebook Friend of the Copes’ 12-year-old daughter Caeleigh to get into her otherwise inaccessible Facebook page.
Luckily, Prince did not seem to be interested in any nefarious acts involving Caeleigh.
Instead, he was a private investigator.
Why Prince was snooping on Caeleigh is a bit complicated.
Prince was hired by Kerns & Proe, a law firm representing State Automobile Mutual Insurance Company, the insurance company for the defendants in a dog bite lawsuit between the Copes and some relatives.
Caeleigh was the alleged victim of this dog bite, and we can only assume that Prince was posing as a prepubescent boy to collect information from Caeleigh’s Facebook page for use in the dog bite litigation (any other explanation really makes Prince, Kerns & Proe, and State Auto all look like sexual predators).
To this end, between February and March 2011, Prince accessed and stored at least 221 pictures of Caeleigh “and her other minor friends,” and accessed at least 1,000 posted messages between Caeleigh “and her other minor friends.”
The Copes were not made aware of this activity until after Prince got what he needed from Caeleigh’s page, when the dog bite lawsuit defendants contacted Cope’s attorney about it (presumably, Prince found something relevant to the lawsuit on Caeleigh’s Facebook page).
Keeping the Copes in the dark about Prince’s mining of Caeleigh’s Facebook page was probably a very effective way to prevent the Copes from screening what Caeleigh posted on Facebook about the dog bite.
Moreover, the evidence that Prince obtained from Caeleigh’s Facebook page is likely admissible.
But before any of you attorneys out there get any bright ideas about repeating this procedure in your own discovery endeavors, there are a few things of which you should be aware.
The method employed to obtain this information was in violation of state and federal laws, and the Copes are suing Prince, his private investigation firm, Kerns & Proe, and State Auto for those violations.
The SCA’s 18 U.S.C. § 2707 provides a civil cause of action for the victim of any SCA violation, and 18 U.S.C. § 2701 criminalizes intentionally obtaining, without authorization or by exceeding authorization, electronic communication in storage (for more on the SCA, check out this post and this post).
In addition to both of these laws, Prince’s alleged activities were likely also violative of the federal Computer Fraud and Abuse Act (CFAA), which prohibits essentially the same thing as the SCA.
Although the Copes’ complaint doesn’t name this law, the CFAA is just as relevant as the SCA to why attorneys shouldn’t repeat Kerns & Proe’s method.
They both impose criminal sanctions for the abovementioned violations.
Though I’m not intimately familiar with Ohio’s rules of professional conduct, I would guess that they prohibit attorneys from committing a federal crime to obtain evidence.
On top of all of that, it just makes one appear creepy to pretend to be a prepubescent boy to access a 12-year-old girl’s Facebook photos.
Regardless of all of the problems and liabilities created by Prince’s Facebook mining, the plethora of information available on an unedited Facebook page may be too tempting to pass up.
We can only hope that the Copes’ lawsuit, if successful, may act as an example that curbs future recurrences of these activities.