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 policies.

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 court.

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 say 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.”

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.”