Page 16 - May2019_BarJournal
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BarJournal FEATuRE
JULY/AUGUST 2015
extrA Dealing with Demands for Phone
inspections and facebook Account
Data During claim investigations
BY JuSTIN RuDIN
he typical first-party property device’s data using specialized software that is location data may help pinpoint an insured’s
insurance policy requires the then downloaded and sorted by the examiner whereabouts at the time of a fire. Other obvious
insured to “cooperate” with into a readable format. Image 1, below, is an examples include text messages or social media
the insurer’s investigation in extraction report listing all of the information communications involving discussions about
T the event of loss or perform obtained from an iPhone. procuring a loss or confirming whether an
other post-loss duties like “produce records Similarly, Facebook, a social media platform insured has knowledge of a particular matter or
and documents” the insurer requests. The used by 68% of all U.S. adults, records all of event or communicates with a person of interest.
consequence of failing to perform these the user’s activity on Facebook since the But at the same time, much and perhaps
obligations can be the denial of the claim. account was opened. Pew Research Center, all of the data on an insured’s phone or their
Relying on these post-loss duties, insurers Social Media Use in 2018, (Mar. 2018). With social media activity may contain highly
are increasingly demanding their insureds just a few mouse clicks, a user can download personal and/or irrelevant information.
turn over their cell phones for forensic their entire Facebook account or archive to a Browsing histories containing an insured’s
examination and produce their social media zip file. The archive includes among others, private interests or concerns, salacious
account activity during investigations of first- everything the user has posted, including photos, and conversations dealing with a
party property insurance claims for fire and photos, videos, list of “friends,” IP addresses relationship and other intimate details of a
theft when foul play is suspected. used to log in to the account, transcripts person’s life are a few examples of potentially
Forensic analysis of modern smartphones of “Messenger” conversations, and call and embarrassing information that that may have
can reveal the user’s location history, call text history to contacts that Facebook mines no relevance to the claim investigation. In
history, voicemails, text messages and their from the user’s phone — often without their the pre-digital age, an insurer’s request to
contents, emails, photos (including where knowledge. This activity download does not forensically examine the insured’s phone or
and when they were taken), web searches differentiate content based on privacy settings obtain their social media archive would be
and browsing history, and much more. Even or the user’s intended audience but instead akin to asking an insured to allow the insurer
deleted information can be recovered. These lumps everything together. to come into the insured’s house and just look
types of forensic examinations involve the Some of this information may be relevant around at anything and everything it wanted
extraction of a “mirror image” of all of the to an insurer’s investigation. A phone’s GPS to, including all of their photographs, letters,
and even their diary.
Policyholders faced with a demand by their
insurer to permit forensic inspection of their
mobile phone or their social media account
history, like Facebook, pursuant to their
policy’s post-loss duty to cooperate should
keep in mind that this obligation does not
mean that an insurer is entitled to anything and
everything they request. Rather, the insurer’s
requests for information must be material to
the circumstances giving rise to liability on its
part. Tran v. State Farm Fire and Cas. Co., 961
P.2d 358 (1998).
For example, Chavis v. State Farm Fire and
Cas. Co., 346 S.E. 2d 496 (N.C. 1986) dealt
with a broad release of financial information
requesting the insured to:
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