Social Media Evidence – Authentication

By Hayes Hunt and Brian Kint

shutterstock_140089948.jpgDespite the relative freedom law enforcement officials have to gather evidence, prosecutors and defense counsel alike are limited as to what information they can introduce into evidence at trial. Perhaps the biggest hurdle attorneys face when attempting to admit this information into evidence is authentication.

The openness of social networking sites and the anonymity of the Internet make the introduction of information from social networking sites ripe for authentication challenges. One court in refusing to admit into evidence paper printouts of a MySpace page noted, “[A]nyone can create a fictitious account and masquerade under another person’s name or can gain access to another’s account by obtaining the user’s username and password.”

Consequently, anyone wishing to introduce social networking data into evidence must first establish a foundation through circumstantial evidence. A wealth of authenticating information can be found in metadata fields. Metadata, commonly described as “data about data,” is descriptive information that is associated with substantive content. There are over 20 unique metadata fields associated with individual Facebook posts and messages — unique ID of a user’s account, the author’s display name, when a post was created, message recipients, etc. Similarly, the two dozen metadata fields associated with each tweet include the poster’s ID, the user’s screen name, and the username of anyone who retweeted. This metadata is an important source of authenticating information. 

For example, in State v. Tienda the court overruled the defendant’s authentication objection and allowed into evidence computer printouts of certain MySpace pages. The prosecution was able to overcome the defendant’s authentication objection by introducing subscriber reports with metadata showing that the accounts were registered to the defendant’s email address, the zip code listed on the accounts was the same as the zip code in which the defendant resided, and one of the pages was titled with the defendant’s nickname. The court found that this information “sufficiently linked [the content] to the purported author so as to justify submission to the jury for its ultimate determination of authenticity.”

shutterstock_167423942.jpgUnfortunately, most social networking sites do not have means by which users can download their own metadata. While sites may allow users to download content, it usually does not capture metadata, and as mentioned earlier, simple printouts of screen captures are unlikely to be admissible without additional authenticating information. Therefore, it is best to hire an outside consultant or subpoena the information directly from the social networking site.

Originally published in the December 2013 issue of The Champion

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About the Editor
Hayes Hunt concentrates his practice in the representation of individuals, corporations and executives in a wide variety of federal and state criminal law and regulatory enforcement matters as well as complex civil litigation. Hayes is a partner in the firm's Commercial Litigation Department as well as its Criminal Defense and Governmental Investigations Group.
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