If you are like 70% of Americans, you use social media. Depending on your age, you probably use Facebook, Twitter, Snapchat and/or Instagram every day, or maybe you dabble in a little YouTube, LinkedIn, or Pinterest. Whatever platforms you use, by now you know that data breaches happen and that your privacy isn’t always as respected as you might have hoped. It’s a compromise we all make when we use social media, or any online platform, really.

The insurance companies understand this compromise, and will attempt to use it to their advantage whenever they can. If, for example, you filed an insurance claim for a house fire, your insurance company can request your Facebook logs to see if you were home when the fire happened. If you were in a car crash, your insurer can request your text and phone records to see if you were distracted while you were driving. If you were supposed to undergo medical treatments with a doctor, but posted pictures a wild weekend skiing on your Instagram, you could be denied Disability or workers’ compensation. In short, if your phone shows that you were somewhere you should not have been, or doing something you should not have been doing, your insurance claim can be denied.

Social media investigations don’t discriminate between what’s relevant and what’s not

When an insurance company requests access to phone records or social media accounts, policyholders are faced with a tough choice: either surrender everything and risk having personal information revealed, or deny access and risk a claim denial for failure to cooperate. As almost every single insurance policy includes a cooperation clause of some kind (much like every state has an “implied consent” standard for driving), most policyholders don’t really have much of a choice at all.

Cooperating, however, can be a true breach of your privacy because these “data dumps” look at everything, including irrelevant information. It is an unintended side effect for two reasons. First, social media platforms like Facebook record everything, whether you want them to or not. Second, there is no way to extract relevant information without also extracting irrelevant, personal, and private information during most forensic examinations. Suddenly, the Tik Tok videos you made when you were supposed to be at work, the “special” photos you took to share with your partner, and the text messages between you and a parent about a health concern are fair game. The insurance companies will want to comb through all of them in hopes of finding something that shows you were at fault or dishonest in some way.

Like it or not, the chances are good that every bit of your life will end up in the hands of the insurance company if you make a claim. The good news is, you still have the law on your side, even if it doesn’t seem like you do.

Examples of the courts siding with insureds

No matter what type of claim you have submitted, or how information is extracted, your insurance company can only request and review relevant data, as a recent piece for the American Bar Association (ABA) points out. The author cites two examples of lawsuits involving State Farm:

  1. Chavis v. State Farm Fire & Casualty Co. In this case, the North Carolina Supreme Court rules that insurers do not have an “unlimited right to roam at will through all of the insureds’ . . . records without the restriction of reasonableness and specificity. Such an obligation would subject an insured to endless document production . . . as the insurer fished for evidence on which to build [its] defense.”
  2. Tran v. State Farm Fire & Casualty Co. This time, the Washington Supreme Court ruled “an insurance company should not have license to burden an insured with demands for items that are immaterial.”

In layman’s terms, insurance companies must specify what relevant information they need. If the insurer is not specific, or does not prove why such data is relevant, its request for that data could be denied.

How can insureds protect themselves and their privacy?

It never hurts to ask if there’s a “less intrusive” way for your insurance company to get access to the data it needs. This can protect (some) of your privacy while ensuring that you comply with your cooperation clause. The ABA also recommends that insureds propose a protocol in response to data requests that addresses:

  • “The independent examiner performing the inspection
  • The gathering of the information by the examiner that is responsive to the insurer’s request
  • A procedure allowing the insured to review the information obtained for privilege and relevance to the claim and then prepare a privilege log describing any information to which the insured objects to disclosing and the basis for the objection
  • A mechanism for resolving any disputes over information identified on the privilege log via a court or other third party.”

State and federal courts, the ABA states, have adopted and accepted these types of protocols. It is in your best interest to have your lawyer draft something up that can protect you, too, before submitting to a forensic investigation.

Americans like to believe they have a “right” to privacy, and the courts and state legislatures are starting to move in that direction – but legally, your privacy is an illusion. This is why we advise clients not to post about their lawsuits or their injuries online; you never know what could be subpoenaed for discovery in a case. Larson Law Firm, P.C. understands your rights, and can help you with your insurance claim. Contact us in Minot or Bismarck by calling 701-484-4878 or filling out our contact form.

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