Biting back Parents accuse insurer of spying on daughter by jolinmilioncherie


									Biting back: Parents accuse insurer of spying
on daughter’s Facebook page
Troy Anderson

Insurance companies already are tapping into social media sites to snoop on fraudsters. Some
large insurance companies are considering the use of “social media scores” to help set prices for

Now, going “beyond all possible bounds of decency,” an insurance company used Facebook to
dig up dirt in a dog-bite case involving a 12-year-old girl who suffered severe facial scarring, an
Ohio lawsuit alleges.

Invasion of privacy?

The suit, being handled by Ohio attorney Brian Spitz, alleges State Auto Insurance Cos. directed
outside attorneys to hire an investigator to access the girl’s private Facebook page. Posing as one
of the girl’s Facebook friends, the investigator obtained 221 pictures and 1,000 messages posted
by the girl and her friends, the suit alleges.

“This is the first case in the country that deals with an … insurance company and private
investigators using some other person’s account information to access a privately designated
Facebook page to serendipitously obtain information regarding an opposing party,” Spitz says.
                                                   The case began in 2009 when the girl’s
parents — Nelson and Danyelle Cope of Painesville, Ohio — filed a lawsuit alleging a relative’s
dog had attacked their daughter. State Auto Insurance insured the Copes’ home.

At some point, attorneys for State Auto Insurance hired a private investigator to poke around on
the girl’s Facebook page, the suit alleges. The investigator obtained the username and password
of one of the girl’s friends and, posing as one of her friends, was able to “get around (the girl’s)
privacy settings and view her private information reserved only for the viewing of her Facebook
friends,” Spitz alleges.

“This is particularly egregious because the Facebook page they accessed belonged to a minor girl
who at the time was 12 years old,” Spitz says. “They downloaded not only pictures and postings
between her and her minor friends, but they then took that private information, which they
illegally obtained, and presented it to a third-party printer to print all the pictures before notifying
the minor, her parents and her counsel that they had done so.”

Aside from State Auto Insurance, defendants in the Facebook case are attorney David
Herrington, law firm Kerns & Proe and private investigator Steven Prince.

A ‘fair’ settlement
Kyle Anderson, a spokesman for Columbus, Ohio-based State Auto Insurance, says in a
statement that the company reached a settlement with the Cope family in November 2011. The
settlement recently was finalized, “which is why we were surprised to learn of the new lawsuit,”
Anderson says. He describes the settlement as “fair.”

“It was also an acknowledgement of the terrible injuries the victim suffered as a result of the bite
from our insured’s dog,” Anderson says. “We’re relieved for her and her family that the injuries
weren’t even more serious. For more than 90 years, State Auto has taken pride in dealing
honestly and ethically with customers and agents, which is why we take seriously any allegations
of wrongdoing on the part of our employees or those who represent us.”

Spitz dismisses State Auto’s explanation.

“Any settlement in the underlying case was with the defendants in that case and had nothing to
do with the unlawful access to the minor’s Facebook account,” Spitz says. “There was no
settlement with the perpetrators of such unlawful and egregious conduct.”

“If State Auto wants to get back on the side of dealing honestly and ethically,” he adds, “it
should admit the violation of its attorneys and investigators, pay the young girl her damages and
vow to never allow such conduct again. Their … statement does not even promise to even curb
the use of these tactics.”

The spread of social media

The allegations of social media snooping in the lawsuit are part of a growing problem involving
social networking sites. The wealth of personal information held by private companies like
Facebook presents a tempting target for a wide range of companies, government agencies and
attorneys. Employers want access to it to evaluate job applicants, law enforcement wants access
to it to investigate crimes and people filing lawsuits want access to it to gain an advantage in

David Jacobs, a consumer protection fellow at the Electronic Privacy Information Center in
Washington, D.C., says the lawsuit is one of an increasing number involving evidence gathered
from social networks like Facebook.

“In litigation, this information could be sought through discovery requests, but it is hard to know
whether parties have turned over all relevant information,” Jacobs says. “Also, in some cases
(like this one), it’s hard to see how the Facebook information is relevant. So, some lawyers try
requesting information directly from social networks using civil subpoenas. The problem here is
that companies like Facebook resist these subpoenas by claiming that it is protected by the
Stored Communications Act.”

The Copes’ lawsuit alleges the defendants violated the Stored Communications Act by accessing
the girl’s Facebook page without permission. The act, based on the Fourth Amendment
protection that gives people the right “to be secure in their persons, houses, papers and effects,
against unreasonable searches and seizures,” governs the disclosure of “stored wire and
electronic communications and transactional records.”

Jeanne Salvatore, spokeswoman for the nonprofit Insurance Information Institute, declines to
characterize the insurance industry’s stance on social media snooping.

But Salvatore does says that “insurance companies will use social media if appropriate when
investigating an insurance fraud situation. But generally, this is only when fraud is suspected,
and it’s one of many tools that a special investigative unit would use.”

The American Insurance Association, a trade group for auto and home insurers, declined to

Surviving in the ‘Wild, Wild West’

Amy Bach, executive director of United Policyholders, an advocacy group for insurance
consumers, says insurance companies should be barred from using evidence that’s obtained
secretly from social networking sites.

“An insurance company using the information by trick is an absolute no, in my opinion,” Bach
says. “In other words, the information the insurance company got by tricking their way into
accessing that information should be barred from evidence, just like an illegal search would be.
If the police search without a warrant, they are not allowed to use the evidence against you. The
question is whether the law has caught up with the Digital Age, and I don’t know that it has.”

Given the privacy issues raised in the lawsuit, Bach advises insurance consumers to be more
careful about what they post on social networking sites. They also should “friend” their children
on Facebook and monitor the kids’ online activities, Bach says.

“Facebook is the ‘Wild, Wild West,’ and there is very little regulation,” Bach says. “Given how
uncharted these waters are, it is better not to use social media sites for anything other than casual
sharing. I think people have to protect their privacy today because the law has not caught up with
the technology.”

To top