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Influencer Investigations: A New Era in Digital Forensics

A Wide Range of Matters Involving Influencers Have Hit the Judicial and Regulatory Circuits

This article was first published in Legaltech News on April, 17, 2023. The article is available at: https://www.law.com/legaltechnews/2023/04/17/influencer-investigations-a-new-era-in-digital-forensics/.

The influencer economy is estimated to reach $480 billion by 2027.¹ This social media “creator” ecosystem has spurred a subsequent increase in a completely new type of litigation and investigations. As companies invest more money in influencer advertising and partnerships, more disputes are certain to follow. In these matters, critical facts are often stored within social media accounts and messaging tools, which can create a host of challenges when it comes time to access, collect and review evidence.

A wide range of matters involving influencers have hit the judicial and regulatory circuits. Cases have spanned contractual disputes between influencers and the organizations that hire them, regulatory investigations for Federal Trade Commission or Securities and Exchange Commission violations, false advertising claims, fraud and more. Under current law, any parties involved in influencer campaigns, including advertisers, their agencies and individual influencers can be liable for violations.²

For digital forensics professionals and investigators, these cases are uniquely challenging. They often involve the collection of unique data types and large volumes of information from complex sources that, in addition to being challenging to collect, may not be compatible with traditional digital forensics and discovery tools, and are complicated to review.

Our team handled a case of this nature involving a popular social media influencer. The investigation required collection of data from Discord, Twitter, Instagram and other personal accounts owned by the influencer. Throughout the matter, we encountered a number of challenges that were unique to the data sources involved, as well as the very nature of conducting an active investigation into an influencer with a high frequency of posting on social media accounts.

These challenges provide several lessons learned that may help legal and investigatory teams prepare for future similar matters. They include:

Access. Initially, the influencer was instructed to self-collect the information needed from each of the social media accounts in scope. However, the technical challenges involved and the influencer’s lack of cooperation to follow self-collection instructions resulted in the need to conduct a hands-on forensic collection. This required our team to obtain access to each of the influencer’s accounts, and complete the collection in-person with the custodian, while logged into his accounts.
Influencer activity. Most influencers are under contractual obligation to post regularly, usually following a pre-determined frequency. That was the case in this matter — the influencer had obligations to be online posting and responding to messages throughout any given day. However, in order to conduct a forensic collection of the accounts, our team had to be logged in, without any activity happening on the accounts during the collection. It was extremely difficult to negotiate a way to keep the influencer offline long enough to collect from accounts that had millions of followers and hundreds of thousands of daily messages.
Not only was it difficult to explain to the influencer why he had to stay out of his accounts for lengths of time, while we were collecting data, a tremendous amount of information was also flowing in in real time, via activity of and messages from his followers. This was a completely new workflow for data collection and required the team to overcome numerous technical and operational hurdles early on in the matter.
Sensitive content. An additional challenge that can arise in these types of investigations is that some of the content may be highly sensitive in nature, or highly coveted by outside parties, and thus a target for data theft. For example, in some matters, data involved in an investigation may be a treasure trove of information relating to current events or high stakes issues. This can create problems when selecting various technologies or partners for the investigation, as there must be a high degree of caution around how the data is transferred, stored and protected. Anyone handling the data may become a target of bad actors looking to access the information.
Data volumes. Even though the matter involved only one custodian, the amount of information residing in each of the custodian’s accounts was astronomical. The estimated time to collect far surpassed anything we had experienced with other complex data types. Each account on each different platform contained millions of artifacts that were in scope as potentially relevant to the investigation.
Emerging data sources. The matter included data sources that had never been tested or collected by digital forensics professionals. To collect from Discord, which housed lengthy chat threads between the influencer and his followers, we encountered unprecedented data volumes and technical challenges. Within that platform, any given user may be included in many servers, groups and chat channels. It’s not possible, however, to collect specific messages from specific users. Rather, every message within a server or channel must be collected. This influencer had multiple channels and private messages that had to be manually collected and preserved for the investigation.
Other emerging data sources, even those that are considered mainstream, such as Microsoft 365 and Slack, can create similar challenges in an investigation. These challenges only begin with identifying the sources in scope. Once the team knows where relevant data resides, there can be numerous obstacles to collecting it, and then once collected, parsing it into formats that can be searched, reviewed, extrapolated for meaningful insight to the investigation and later produced to regulators or opposing counsel. Without a team of emerging data sources experts involved, there is a risk that the investigation will be improperly scoped, or that critical information will be overlooked, leading to potentially detrimental outcomes for the case.
Compatibility issues. None of the digital forensic and e-discovery tools currently available were able collect the social media and chat data involved in this matter. In some cases, social media data can be collected by taking a native download from the platform provider and using that archive to preserve evidence. However, the expanse of information within this influencer’s accounts was so great that the native collections broke down and none of the tooling could handle the complexity and volume of the dataset. This required our team to create novel workarounds and conduct a significant amount of manual work to ensure everything was collected. Generally, the tools used for digital forensics investigations are constantly playing catch up, as they have been designed to handle certain data types and smaller data volumes and the social media platforms are constantly changing their backend infrastructure and APIs.
Strict requirements. Influencer investigations are often due to regulatory violations. This matter was part of a subpoena from the SEC, which had very stringent guidelines for the scope of data that had to be delivered and how it was extracted and produced. Every step had to be accurate and defensible, with no room for error. Meeting requirements in these types of investigations is becoming increasingly complex, given the complexity of the data involved. Without an understanding of the nuances in the platforms and data sources, there is a significant risk of falling short of regulatory or court-ordered requirements for data production.
Privacy complexities. Influencers have a wide reach and engage in direct communication with millions of people every day. When collecting influencer data for an investigation, certain information relating to or messages with the influencer’s followers — some of whom may be minors — will also likely be collected. If this information is being produced to regulator, it becomes part of public record. Most people are not thinking about or aware of the digital fingerprints they leave behind when engaging with influencers on social media, or the implications those activities may have. This can raise some unwieldy privacy challenges that legal teams will need to be aware of when conducting such investigations.

Any organization that is engaging with influencers as part of its marketing and advertising strategy should be aware of the reality that these arrangements are increasingly leading to disputes, investigations and regulatory inquiries. Moreover, it’s critical for legal teams to understand the highly complex nature of evidence discovery across influencer social media accounts and activity — especially as the lines continue to blur between business and personal information, and business dealings and social media activity. Understanding common challenges ahead of time can help legal teams prepare for the data challenges that are likely to arise, so that they can establish reasonable expectations and strategy if they are faced with such a matter.

Footnotes:

1: McCoy, Kimeko, “In a booming influencer economy, creators seek standardization for payment terms,” Digiday, February 15, 2024.

2: Bernstein, Meryl and Franceschelli, Maria Luigia, “Agreements with influencers and social media marketing agencies,” Hogan Lovells.