Authentication and Access for Social Media Evidence

In England, a criminal defendant proclaims, “I think I got away with it,” before the close of trial and is forced to take a plea. In Texas, a murder conviction is upheld based on the accused’s knowledge of intimate details about the killing and subsequent investigation. In California and Colorado, employee plaintiffs are required to disclose conversations with other employees related to a suit against the employer. In each of these cases, the crucial evidence was drawn from Facebook and other social networking sites.

Messages and postings on social networks have become a fundamental means of communication. By 2009, more conversations took place over social networks than by email. Lawyers have seized on social networking sites as a deep well of valuable information, resulting in an evidentiary debate in courtrooms nationwide surrounding the admissibility of social media evidence.

Two key issues for courts and attorneys faced with social media evidence have been: (1) proper authentication of the evidence, and (2) access to that evidence in the face of digital privacy laws. As recently as a few years ago, authentication and access each proved to be a substantial hurdle for an attorney seeking to admit social network communications into evidence. Recent decisions, however, reveal a trend toward admission, with the cooperation of social media sites themselves necessary to both authentication and access.

Authentication

Does a name and photograph on a Facebook page authenticate the identity of the individual associated with the account’s activity? In an instance of what Judge Glenn T. Harrell Jr. of Maryland’s highest court has described as the “technological heebie jeebies,” several recent courts have required more, expressing concern with false profiles, account hacking, and “Photoshopping.”

The ability of technology to deceive, however, is counterbalanced by the indelible digital trail left by users of social media. Accordingly, standards for authentication are emerging. Evidence of a user’s Internet history, gleaned from an examination of their digital devices or obtained directly from the social media provider, now appears sufficient to establish, in the language of Federal Rule of Evidence 901, “that the [social media] item is what the proponent claims it is.”

The paradigmatic case arises from messages or postings whose authenticity is disputed by the apparent account owner. Several decisions of recent years—including Griffin v. State, 19 A.3d 415 (Md. 2011) and State v. Eleck, 23 A.3d 818 (Conn. App. Ct. 2011)—have been sympathetic to claims of falsely created accounts or “hacked” messages. The Griffin court held that “the date of birth of the creator and her visage in a photograph on the site” was insufficient to authenticate the purported owner’s authorship of a message. Similarly, Eleck held that authenticity was not established by “the fact that [the claimed author] held and managed the account.”

Nevertheless, as Eleck noted, “the circumstantial evidence that tends to authenticate a communication is somewhat unique to each medium”; both cases pointed to forensic examination of devices or validation by social media providers as potential means of authenticating such evidence. As use of these methods of authentication becomes more widespread, it seems likely that courts will not look favorably upon evidence put forth without forensic support.

At the same time, traditional means of authentication, such as the distinctive content of a statement, retain force in the world of social media. In Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012), Texas’s highest criminal court upheld a murder conviction that relied heavily on postings from several MySpace accounts attributed to the defendant—despite the lack of any forensic evidence or outside authentication. After describing in detail several dozen messages, photographs, and other details linking the profiles to the defendant, the court ruled that the remote possibility “that the [defendant] was the victim of some elaborate and ongoing conspiracy” went to the weight of the evidence, not its admissibility. The Tienda court did cite Griffin, however, for the suggestion that in future cases, proponents of social media evidence would be well advised to include extrinsic proof of authenticity.

Access