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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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