The influencer economy has grown to an estimated worth of $104 billion, with projections of reaching trillions of dollars. This rapid expansion has resulted in a surge of litigation and investigations related to the social media "creator" ecosystem. As companies continue to invest in influencer advertising and partnerships, disputes are expected to increase. However, critical information may be stored within social media accounts and messaging tools, presenting challenges when collecting and reviewing evidence. Recent years have seen a range of legal matters involving influencers, such as the infamous Fyre Festival scandal, in which numerous celebrities used misleading social media posts to promote an event that turned out to be a disaster, resulting in lawsuits against the event organizer and celebrities. Other cases have included contractual disputes between influencers and the organizations that hire them, regulatory investigations for FTC or SEC guidelines violations, false advertising claims, and fraud. According to current law, parties involved in influencer campaigns, including advertisers, their agencies, and individual influencers, can be held accountable for violations.
Digital forensics professionals and investigators face unique challenges regarding cases involving social media influencers. These cases often involve the collection of large volumes of particular data types from complex sources. In addition, the data may differ from traditional digital forensics and discovery tools, making it difficult to review. Recently, our team handled a case involving a famous social media influencer that required collecting data from various personal accounts owned by the influencer, including Discord, Twitter, and Instagram. Throughout the investigation, we encountered numerous challenges unique to the data sources involved and the nature of conducting active research into a social media influencer with a high posting frequency. The lessons learned from these challenges can help legal and investigatory teams prepare for similar cases in the future.
The volume of data in each account was massive, and we encountered unprecedented data volumes and technical challenges when collecting from Discord. It was impossible to order specific messages from specific users, requiring the collection of every note within a server or channel, including multiple channels and private messages involving the influencer. These challenges highlight the need for legal and investigatory teams to be prepared for similar matters involving unique data types and emerging data sources, which may not be compatible with traditional digital forensics tools.
Several challenges were encountered during the investigation of an influencer due to the complex nature of collecting data from social media and chat platforms. None of the existing digital forensic and e-discovery tools could handle the sheer volume and complexity of data involved in this case, which necessitated the creation of novel workarounds and significant manual work by our team to ensure proper collection. It's a constant challenge for digital forensics tools to keep up with social media platforms' rapidly changing backend infrastructure and APIs.
Moreover, influencers' investigations are often regulatory, and this case was part of a subpoena from the SEC, which imposed strict guidelines for data scope, extraction, and production. Failure to meet these requirements could have serious consequences, which makes it critical for legal teams to understand the nuances of social media platforms and data sources to ensure accurate and defensible steps are taken.
In addition, influencers have millions of followers who directly engage with them, and this engagement could lead to the collection of information or messages involving minors, raising complex privacy concerns. Organizations that engage with influencers as part of their marketing and advertising strategy need to be aware of the possibility of disputes, investigations, and regulatory inquiries. Legal teams should also be prepared to face data challenges during a study, as business and personal information and social media activity continue to overlap. Understanding these common challenges ahead of time can help establish reasonable expectations and strategies to handle such matters.
