What Digital Evidence Is Permissible in Investigations of Discrimination or Harassment?

Author: Sabrinne Gibson | Investigation, Hearing, & Appeal Services

Title VI, Title VII, and Title IX investigations often rely on digital evidence, including emails, text messages, direct messages on social media, access logs, audio recordings, photos, and video footage. Digital evidence is often used to establish facts, timelines, and intent.

However, using the wrong evidence or collecting it improperly can undermine an investigation, expose the organization to risk, and damage employee or student trust.

This article outlines several different sources of digital evidence, the permissibility of certain types of digital evidence in Title VI, Title VII, and Title IX investigations, along with the principles that should guide their use.

Evidence from Institution-Owned Systems & Devices

When requesting data from institutionally owned sources, consider whether the purpose for using the data is in line with institutional policy, including whether constituents were notified of system monitoring if such notification is required by the institution. Institutional sources include:

• Institutional email accounts (sent/received emails, attachments)
• Institutional messaging platforms (Teams, Slack, Zoom, chat channels, internal forums)
• Institution-issued laptops, desktops, tablets, phones
• System logs
  • Login/logout records
  • Access logs to files or applications
• File activity
  • Created, modified, deleted documents
  • Shared drive access
  • Metadata for relevant documents
• Attendance and timekeeping data
• Access badge / keycard logs (entry/exit times)

Social Media Evidence

In many investigations, investigators can search publicly available social media for information. There are a number of social media sources with different functionalities. For example, some have disappearing messages or photos, post-editing features, private messaging, or location-based sharing features. Private social media profiles are generally off limits unless a party or witness to the investigation shares screenshots or information from those private social media profiles. Investigators should not attempt to covertly access private emails or private social media accounts.

Some examples of public social media sources are listed below:

• TikTok
• Instagram and Threads
• X (formerly Twitter)
• Facebook
• Snapchat
• Reddit
• YouTube
• VSCO

Audio / Video Evidence

Audio and video recordings are sometimes offered by parties or witnesses. The decision as to whether an investigator should accept an audio or video recording may be governed by state law; some states require that all parties to a recording first give permission to be recorded. For example, the permissibility of a recorded conversation in California between two persons, requires both parties to consent to the recording otherwise the recording would not be permissible evidence in an investigation.

Once it has been determined that the recording does not run afoul of state recording laws, there are two other considerations: relevance, and whether the evidence is otherwise permissible as part of a Title IX investigation.

Evidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action occurred.

One other consideration is specific to sexual misconduct investigations, and particularly those governed by the Title IX regulations. The regulations hold that evidence, including audio or video, about the prior sexual conduct or prior sexual disposition of the complainant is not permissible. There are two exceptions to this rule. First, the evidence would be permissible if it relates to sexual behavior between the complainant and respondent and is offered to prove consent. Second, the evidence would be permissible if it is offered to prove that someone other than the respondent engaged in the alleged conduct.

Types of Audio and Visual Evidence:

• Recorded calls or privately recorded conversations
  • Generally, if lawful consent requirements are met, this evidence would be permissible. A split of opinion exists among investigators; some say that the evidence should be considered if that evidence would change the outcome of a case. However, it might be helpful to add, that when in doubt, consult with counsel prior to accepting this evidence.
  • If the recording contains an admission, without which the institution would come to the wrong conclusion, consult with counsel before accepting this evidence.
• Institutional security footage
  • Common areas only (not restrooms or changing rooms).
• Privately recorded video footage
  • In Title VI, Title VII, or Title IX investigations, a party might submit a privately recorded video of a conversation. Evaluate recordings considering state privacy laws, whether the consent requirements were met, and, whether parties have a reasonable expectation of privacy in a given location.
  • In Title IX investigations, circumstances may arise where a party may submit privately recorded videos of sex-related activities between them and the other party.
    • If the footage depicts something that is relevant or directly related to the allegations, then the footage would generally be permissible.
    • If the footage depicts prior sexual conduct of the complainant, consider whether the footage falls under one of the two exceptions outlined in paragraph four of this section.
    • Also consider whether the footage was recorded consensually or not. If recorded non-consensually, the Title IX Coordinator should be informed immediately to determine whether additional charges should be added to the existing allegations.

Personal Devices, Personal Photos, & Personal Online Accounts

It is not uncommon to seek to obtain information from personal devices, including messages and photos, and data stored on personal email accounts, like Gmail or Google Photos. While an investigator should request that parties and witnesses provide relevant information from their personal devices and accounts, they generally cannot compel students to provide such information under a Title IX investigation. For employees in a state in which an employee owes a duty to the employer, then it could be required.

Final Considerations

Ultimately, in the collection of evidence, following local privacy laws is paramount, and engaging in the ethical collection of publicly available evidence is key.

Sources and types of digital evidence are constantly evolving, and that can create several “gray” areas for an investigator. If you run into any of these “sticky” areas or have concerns about whether evidence is permissible, consult with your office of general counsel, outside counsel, or with leaders and experts in the investigation space like our team of consultants and resolutions practitioners.