Writing for the Superior Court in F.P., Judge Kate Ford Elliott said Pennsylvania Rule of Evidence 901 must govern the introduction of electronic communications as evidence.
F.P., the juvenile appellant, argued that the instant messages introduced in his adjudication proceeding were not properly authenticated. The electronic messages were purportedly sent by F.P. to the victim of the assault, threatening him with physical harm.
F.P. told the court it is impossible to say with any degree of accuracy whether electronic messages traced to a particular computer actually came from the person suspected of sending them.
But Ford Elliott said “the same uncertainties exist with traditional written documents,” as well as electronic communications.
“Essentially, appellant would have us create a whole new body of law just to deal with e-mails or instant messages,” Ford Elliott wrote. “The argument is that e-mails or text messages are inherently unreliable because of their relative anonymity and the fact that while an electronic message can be traced to a particular computer, it can rarely be connected to a specific author with any certainty.”
Ford Elliott reasoned this concern is not limited to electronic communications. In written materials, she wrote, a “signature can be forged; a letter can be typed on another’s typewriter; distinct letterhead stationary can be copied or stolen.”
E-mail and other electronic messages, therefore, are no different from written documents when a court is called on to ascertain the authenticity of such evidence, the court said, finding “no justification for constructing unique rules for admissibility of electronic communications such as instant messages.”
Such communications, Ford Elliott wrote, “are to be evaluated on a case-by-case basis as any other document to determine whether or not there has been an adequate foundational showing of their relevance and authenticity.”
In a footnote, Ford Elliott observed that no published Pennsylvania case law exists addressing the authentication of e-mail or instant messages. However, she said, published rulings from appellate courts in California, Mississippi and Texas, as well as opinions from the 9th and 11th U.S. Circuit Courts of Appeals, support the panel’s decision here.
“In all of these cases,” Ford Elliott wrote in the footnote, “the court examined the electronic messages within the framework of existing jurisprudence/rules of evidence to determine whether or not they had been properly authenticated.”
The court affirmed F.P.’s May 2004 adjudication for aggravated assault in Allegheny County Common Pleas Court.
According to the opinion, F.P. was accused of attacking another juvenile, Z.G., after he stepped off a school bus on Sept. 25, 2003. F.P. approached Z.G. from behind and struck him several times on the head and face.
According to Ford Elliott, F.P. was angry with Z.G. because he suspected the boy had stolen a DVD from him.
On appeal, F.P. challenged the trial court’s decision to admit evidence of threatening instant messages he supposedly sent to Z.G.
F.P. argued that prosecutors should have authenticated the instant messages — several of which threatened harm to Z.G. for supposedly stealing a DVD — by introducing evidence attesting to the source of the messages from an Internet service provider or the testimony of a computer forensics expert.
Ford Elliott, who was joined by Judge Debra M. Todd and Senior Judge Peter Paul Olszewski, did not find anything improper about introduction of the instant messages.
Under Rule 901, documents may be verified by direct proof or circumstantial evidence. In this case, Ford Elliott wrote, there was enough circumstantial evidence to show that the messages — which were sent by username “Icp4Life30″ to “WHITEBOY Z 404″ — actually came from F.P.
“Clearly, there was sufficient evidence that appellant was ‘Icp4Life30′ and sent the threatening messages to Z.G.,” Ford Elliott wrote. “He referred to himself by his first name. He repeatedly accused Z.G. of stealing from him, which mirrored testimony that appellant was angry about a stolen DVD.”
The messages also referred to Z.G.’s decision to approach high school authorities about the threat, indicated that the two used to be friends, and directed several vile names and threats to Z.G.
“All of this evidence, taken together, was clearly sufficient to authenticate the instant message transcripts as having originated from appellant,” Ford Elliott wrote.
Victoria H. Vidt, an assistant public defender in Allegheny County, said her client is considering whether to appeal.
“Since there is hardly any case law in this area, I thought we had a pretty good chance the Supreme Court would take the appeal,” she said.
Vidt was concerned by the court’s refusal to take extra steps to verify that the instant messages actually came from F.P.
“I think you needed that additional level to prove that it is authentic,” Vidt said.
“I do think the court kind of missed the point,” she added. “I had cited in my brief some law review articles that talked about how easy it is to make up computer messages or e-mails, and how easy it is to tell where exactly they came from, what computer they came from. But in this case, they were just pieces of paper; they didn’t have the kids’ ISP numbers” on them.
James R. Gilmore, the Allegheny County assistant district attorney who represented the commonwealth in F.P., was away from the office last week and could not be reached for comment.
But Ohlbaum, the Temple law professor, said Ford Elliott’s opinion was “dead-on right.”
He said electronic communications require the same level of authentication as other types of documents, but no more.
“E-mail has become for many the communication method of choice,” he said. To create new rules “would impose burdens most folks wouldn’t be able to meet.”
Porn at Work
In Blicha, Commonwealth Court Senior Judge Jess S. Jiuliante explained that evidence of pornographic material on an employer-assigned laptop computer is enough to establish that the employee used the computer for that purpose.
John M. Blicha challenged the denial of unemployment compensation benefits after he was terminated from his employment with Bolsan Inc. for willful misconduct stemming from the discovery of pornographic images on his assigned laptop computer.
He claimed that he never viewed the images, noting that computer maintenance workers commonly used his laptop while he was away on sales calls, and that nobody actually testified to seeing him download any inappropriate material.
Jiuliante, who was joined by Judges Bernard L. McGinley and Doris A. Smith-Ribner, relied on Burchell v. Unemployment Compensation Board of Review, 848 A.2d 1082 (Pa. Commw. 2004), to resolve Blicha’s appeal.
The Burchell court held that evidence of files “containing pornographic material” on an employee’s computer was enough to show that the employee “was using employer’s computer to download pornographic material in violation of the employer’s written policy and in disregard of the standard of behavior which the employer has a right to expect of an employee.”
In Blicha, Jiuliante said, more than 150 pornographic images were downloaded over a 90-day period during work hours on Blicha’s assigned computer, which was logged into the employer’s network under his login name and password. Such use violated Bolsan’s computer and e-mail usage policy.
“[T]he fact that Employer failed to present any witness to testify concerning a visual sighting of Claimant using the computer in a way that violated a work rule is of no consequence,” Jiuliante wrote, citing Burchell.
Jiuliante also said in a footnote that the court found no merit to Blicha’s argument that he should have been given a chance to examine the computer at issue and obtain expert testimony.
The ruling upheld the Unemployment Compensation Board of Review’s denial of benefits.
Blicha originally received notice of termination from Bolsan in January 2004. According to the opinion, he was given six months notice of the termination pursuant to an employment agreement. But in February 2004, he was terminated immediately for willful misconduct because of the pornographic images discovered on his computer.
On appeal, Blicha argued that he was actually terminated in January 2004 when Bolsan had him removed from his position, even though he was informed he would continue to receive salary and benefits until July 2004. Blicha maintained that his initial removal was due to an economic downturn in the aerospace industry, the field in which he was employed.
But the court did not agree. Instead, Jiuliante found that Bolsan terminated Blicha in February 2004 for willful misconduct, meaning Blicha was not entitled to unemployment compensation benefits.
Judith Hajel Veres of Bassi McCune & Vreeland in Charleroi, Pa., represented Blicha with co-counsel Bradley M. Bassi.
Veres said an employee is defined by statute as “a person serving in return for remuneration.” In this case, Blicha was terminated in January 2004 and given what was, in effect, a severance package, she said. He was, therefore, not an employee when Bolsan decided to fire him for willful misconduct a month later.
Veres also said the court’s decision to credit evidence that pornographic material was downloaded on Blicha’s computer over his argument that he was not the culprit effectively removed any opportunity for him defend himself against these allegations.
“They’ve eliminated the possibility of a defense,” she said, especially given that other people had access to Blicha’s laptop computer while he was away from the office.
David J. Burton and Joseph P. McHugh of Reed Smith in Pittsburgh were the attorneys for Bolsan. They declined to comment.
