The Authentication of Social Media Postings
By David I. Schoen – May 17, 2011
Social media sites, including Facebook, LinkedIn, MySpace, Plaxo, Twitter, and others, have literally hundreds of millions of subscribers who use their services daily. These sites are used by businesses and private parties for commercial and personal purposes. Uses vary, but include setting up a profile page and posting personal information on one’s own site; using the services for their “chat rooms,” sometimes anonymously; advocating a position on a matter of private or public interest; advertising; blogging; instant messaging; and more. See Independent Newspapers, Inc. v. Brodie, 407 Md. 415, 966 A.2d 432 (Md. 2009) for a full discussion of the various forms of social media uses.
The widespread use of social media and the variation in practices among sites give rise to concerns about the reliability of such evidence. On February 10, 2011, for example, the New York Times reported that a series of comments attributed to Rahm Emanuel appeared on a Twitter feed reflecting profanity and substantively offensive thoughts. However, as the Times reported, it turned out that the Twitter feed did not actually originate from Emanuel but was the product of a parallel account, known in the industry as a “parody account,” reflecting the comments of someone else who was posing as Rahm Emanuel. See, e.g., Ashley Parker, “You Wouldn’t Believe What Rahm Emanuel Is Saying on Twitter. Neither Does He.” New York Times, Feb. 10, 2011.
Notwithstanding the increasing frequency with which issues relying on the evidentiary value and admissibility of social media evidence are finding their way into the courtroom, there are still relatively few reported decisions discussing these issues, and only recently have commentators begun to address the evidentiary factors surrounding such material in an organized fashion.
With increasing frequency, social media postings, including words, pictures, and other images, are becoming sources of evidence in a variety of cases. The relevance and uses to which social media postings, friend lists, or chat room subjects and the like must be considered by every litigator in any kind of civil or criminal case are limited only by one’s imagination and creativity. In commenting on the importance of coming to terms with these kinds of issues in the context of litigation, at least one study concluded that given the widespread use of social networking and its implications for litigation, it should be considered a matter of “professional competence” for attorneys to investigate relevant social networking sites.” See Sharon Nelson et al., “The Legal Implications of Social Networking,” 22 Regent U.L. Rev. 1, 1–2 (2009/2010). See also Edward M. Marsico Jr., “Social Networking Websites: Are MySpace and Facebook the Fingerprints of the Twenty-First Century?” 19 Widener L.J. 3, 967 (2010); Andrew C. Payne, “Twitigation: Old Rules in a New World,” 49 Washburn L.J. 3, 841 (Spring 2010); Katherine Minotti, “Evidence: The Advent of Digital Diaries: Implications of Social Networking Web Sites for the Legal Profession,” 60 S.C. L. Rev. 1057 (Summer 2009); Grossman, “No, Don’t IM Me—Instant Message, Authentication, and the Best Evidence Rule,” 13 Geo. Mason L. Rev. 1309 (2006); Authenticating MySpace Evidence, CYB3RCRIM3 (Nov. 16, 2009), http://cyb3rcrim3.blogspot.com/2009/11/authenticating-myspace-evidence.html; John S. Wilson, “MySpace, Your Space, or Our Space? New Frontiers in Electronic Evidence,” 86 Or. L. Rev. 1201 (2007).
In terms of the evidentiary implications arising from this new forum for communications, the problems and the solutions are a mix of the old and the new. Traditional evidentiary principles provide a starting place for analysis. Preliminary questions of admissibility turn, for the most part, on traditional analysis, based on familiar frameworks for considering authenticity, the best-evidence rule, hearsay, hearsay exceptions, party admissions, co-conspirator relationships and statements, non-hearsay proffers, and more. However, some factors specific to social media networking can complicate the application of those traditional concepts, and we must be prepared to deal with these complications.
Differences peculiar to social media posting evidence (and some other computer-generated evidence) vary from simple to quite complex. For example, handwriting analysis will not avail either the proponent or the opposing party on the matter of the attribution of a social media posted “writing” as it might for a traditional writing. The anonymity afforded by chat rooms and multiple users of a password further complicate the matter of attribution in ways not contemplated in traditional “writing” inquiries. These kinds of variables are why efforts to admit social media evidence are often met with a sense of “judicial skepticism” about reliability, similar to the concerns that arose when other kinds of computerized evidence began to regularly appear in courtrooms in the mid-1990s. Gregory P. Joseph, 5-Four, Federal Rules of Evidence Manual II (2010).
The discussion of the authenticity requirements for the admission into evidence of social media evidence—using the most basic model: an exhibit that purports to be a printout of a website posting—starts with the premise that the social media evidence at issue meets a basic threshold of relevance. One can easily conceive of social media postings being relevant for the purposes of offering a party admission, a declaration against interest, a friendship or an association reflected on one’s website and “friends” list, etc. Similarly, one might readily imagine a posting being substantially relevant to a central question in the matter being litigated in such contexts as libel, false advertising, fraud, and much more, or in a criminal case one could conceive of a social media posting, with the assistance of an expert witness, providing an alibi or other defense for the criminal defendant, as well as affirmative evidence of guilt, a conspiracy or other criminal relationship, threats, corroboration for other evidence, and so on.
Evidence proffered as information allegedly drawn from social media websites, whether offered simply for the fact that such information appeared on a given website or for some other purpose, in the form of a “writing,” a photograph, or some other form of data, must be authenticated as a matter of first course.
Laying the Foundation for Authentication
There are at least two primary authentication questions that a proponent of a printout from a social media site must be prepared to address. On the face of them, they are no different from normal authentication requirements for any proposed written or printed evidence; however, there are some peculiarities attending the authentication of social media evidence for reasons that become apparent when we examine the nature of such evidence more closely.
The first and more basic question is simply whether the exhibit is actually a printout from the social media site from which it purports to be. Did the information in the exhibit appear on the website, and does it accurately reflect it as it appeared on the website? The second, more complicated, question is whether the posting can be satisfactorily shown to have arisen from the source (the particular person or entity) that the proponent claims.
The court will look to Rules 104 and 901 of the Federal Rules of Evidence (or the state analog for matters litigated in state courts) in its consideration of authentication questions, just as it would for the authentication of exhibits outside of the social media realm. The authentication standard guiding the court generally requires the proponent to establish sufficient evidence to allow a rational trier of fact to conclude that the proposed evidence is what the proponent claims it to be.
The foundation to satisfy whether the exhibit is actually a printout from a given social media site is rather straightforward. There is no need to call a representative from the social media company at issue to satisfy this element of the foundation, just as a similarly situated witness would not be required in other settings. Assuming the proponent is not the person whose website posting is at issue, the most straightforward manner of laying a sufficient foundation would be to simply have a witness testify that he or she is the person who printed out the posting, that he or she recalls the appearance of the printout that he or she made from the social media site, and that he or she recognizes the exhibit as that printout.
If such a person is not available, the proponent could also have a witness testify that he or she visited the social media site at issue, read the information there that is reflected in the proposed printout exhibit, remembers the contents of the social media site, and can identify the proposed printout exhibit as accurately reflecting the posting that he or she saw and remembers from the social media site. This, of course, is similar to the method routinely used for authenticating a photograph or other demonstrative exhibit. Here, as with other such evidence, this ought to be enough to satisfy the rather liberal threshold for Rule 901(a).
However, given the ability that exists for hackers to alter or manipulate a website or even for a website to be unintentionally altered from when the owner of the site made his or her post, the court must be open in this foundational inquiry to rebuttable evidence that raises a genuine issue about the reliability of the evidence as an accurate depiction of what actually appeared on the website. These possibilities increase the need to carefully consider all relevant circumstances in evaluating admissibility under Rule 104(a). Similarly, the court must explain to the trier of fact his or her job under Rule 104(b), ensure that the jury understands that the question of how much weight to give the admitted exhibit is for it to determine, and that this is especially critical where the possibility of alteration or manipulation is adduced. See Foundation Requirements for Computer-Based Evidence,” 5–900 Weinstein’s Federal Evidence § 900.6 (2010).
The second element of the foundation for authentication is more complicated. Courts have differed in this relatively new field as to what foundation for authentication purposes should be required to prove that the social media posting is attributable to a certain person or entity. It is clear, however, that courts will take a totality-of-the-circumstances approach to determining whether this element of the authentication foundation has been met and will rely on a combination of circumstances, many of which have been articulated in various cases and by commentators in the field, to determine whether a sufficient showing has been made to attribute the social media posting to the person or entity to which the proponent wishes it attributed.
Perhaps the most simple and straightforward method for laying this element of the foundation, assuming that the proponent is not the author of the posting, would be to have a forensic computer expert testify that he or she had examined the hard drive of a computer used exclusively by a particular person and was able to recover the posting from the hard drive of that computer, thereby providing strong evidence that the exclusive user of that computer was, indeed, the source of the posting.
However, assuming that such expert evidence is not available (and it certainly is not required), there are several factors that a court will consider relevant in analyzing whether there has been a sufficient showing of authentication. The analysis is made within the context of Rules 104 and 901.
Relevant factors include whether the person to whom the proponent of the exhibit wishes to attribute the printout has adopted the username shown on the profile page, whether the person has shared his or her social media password with other people, whether there is a photograph on the person’s or entity’s profile page that identifies the person to whom the proponent wishes to attribute the posting, and whether there is personal information on the profile page, such as a birthday, unique name, or other pedigree information that corresponds to known information for the person to whom the proponent wishes to attribute the posting.
The leading expert on evidentiary foundations, Professor Edward J. Imwinkelried, author of the treatise that should be by every trial lawyer’s side, Evidentiary Foundations, has been kind enough to share with me his thoughts on the necessary evidentiary foundations for a printout from a social media profile page. Much of what I have written in this section is taken from Professor Imwinkelried’s thoughts on the subject, which will appear in the next addition of his treatise on evidentiary foundations under Texas law.
Authentication in a Recent Case
A recent decision from the Maryland Court of Special Appeals provides a comprehensive and helpful discussion on the admissibility of a social media posting and the authentication problems that arise in the process. Griffin v. State of Maryland was a criminal case in which the defendant was charged with and ultimately convicted of murder. 192 Md. App. 518; 995 A.2d 791, cert. granted, 415 Md. 607, 4 A.3d 513 (2010); See also Tienda v. State of Texas, 2010 Tex. App. LEXIS 10031 (Tex. App., Dec. 17, 2010); People v. Goldsmith, 2011 Cal. App. LEXIS 309 (Cal. Sup. Ct., Feb. 14, 2011); People v. Beckley, 185 Cal. App. 4th 509; 110 Cal. Rptr. 3d 362 (Cal. Ct. App. 2010); Commonwealth v. Williams, 456 Mass. 857, 926 N.E. 2d 1162 (2010); Clark v. State, 915 N.E. 2d 126 (Ind. 2009); People v. Clevenstine, 891 N.Y.S. 2d 511, 68 A.D. 3d 1448 (2009); State v. Bell, 2009 Ohio 23351, 2009 Ohio App. LEXIS 2112 (Ohio Ct. App., May 18, 2009); Dockery v. Dockery, 2009 Tenn. App. LEXIS 717 (Tenn Ct. App., October 29, 2009); State v. Trusty, 322 Wis. 2d 573, 776 N.W. 2d 287 (2009).
The social media evidence at issue was a MySpace posting by the defendant’s girlfriend that read in pertinent part, “I HAVE 2 BEAUTIFUL KIDS . . . . FREE BOOZY!!!! JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!”
This MySpace posting was relevant because a primary witness in the first trial testified that Griffin was not at the scene of the crime. That trial ended in a mistrial. In the retrial, the same witness, in direct contradiction of his testimony at the first trial, directly implicated the defendant in the murder. In explaining the inconsistent testimony, the prosecution elicited testimony from the witness that, immediately prior to the previous trial, the defendant’s girlfriend, whose MySpace post was at issue, had threatened him by telling him that he “might catch a bullet if (he) showed up in court.” The MySpace post was offered expressly to corroborate the witness’s testimony that he was threatened by the defendant’s girlfriend.
The defendant raised an objection to the admission of the MySpace posting, arguing that the prosecution did not sufficiently authenticate the printed excerpt it claimed to have extracted from the MySpace website. The prosecution’s authentication testimony was simply that a police officer went onto the MySpace website and found a page that contained the name of the defendant’s girlfriend along with a photograph that could identify her as the defendant’s girlfriend. The site also contained other information that the officer knew related to the defendant’s girlfriend, including that she lived with the defendant, her date of birth as stated during her interview with law enforcement, and references to the defendant’s nickname, “Boozy.”
The police officer simply printed the posting from the website. However, on voir dire at trial, the police officer acknowledged that he had no way of knowing whether the defendant’s girlfriend had actually made the posting or not, nor could he determine when this or any other posting was made.
The court admitted into evidence the printout from the MySpace website over the defendant’s objection and gave a cautionary instruction, directing the jury that it should only give such weight to this printout as it felt it deserved and that it was only being offered for the limited purpose of purportedly corroborating the witness’s testimony about being threatened by the defendant’s girlfriend.
In analyzing the question of authenticity and ultimately admissibility, the court looked to Maryland’s equivalent of Rules 104(a) and 901(a) of the Federal Rules of Evidence to determine as a threshold matter whether the MySpace printout had been sufficiently authenticated.
The court noted the rather liberal standard for the question of whether a document has been sufficiently authenticated and began a lengthy discussion of the nature of social media networking and the peculiar problems attending that forum. The court specifically noted the broad uses for social media and the tremendous popularity it has enjoyed throughout the world. Finally, the court also noted both the dearth of decisions fully analyzing the question of the admissibility of postings from social networking websites and the particular obstacle that the anonymous nature of social networking sites posed to authenticating messages posted on them. See also Paul W. Grimm et al., “Back to the Future: Lorraine v. Markel American Insurance Co. and New Findings on the Admissibility of Electronically Stored Information,” 42 Akron L. Rev. 357, 370–71 (2009).
Ultimately, the trial court concluded that, given the generally liberal standard for authentication and rules developed in what it considered to be the analogous situation of other forms of electronic communication, the requirements for authentication and admissibility were satisfied based on the content and context of the message—the indicia to the police officer that the website from which he printed the exhibit at issue was, in fact the girlfriend’s website.
Specifically, the court found the police officer’s testimony that he believed the profile on the MySpace page belonged to the defendant’s girlfriend based on a photograph of the defendant with the girlfriend, the birth date matching that which the defendant’s girlfriend gave to the police, and references to the defendant by his nickname were sufficient to authenticate the posting as having been made by the defendant’s girlfriend.
The court rejected cases from jurisdictions that require greater stringency for authentication. Such courts demand that the authentication be provided by either the author of the posting or expert technology-based information establishing more details about the posting. Although it admitted the evidence in this case, the court noted the very real problems raised by the anonymity permitted by social media websites like MySpace and the very real possibility that anyone who obtains the purported poster’s identifying information and password could easily make a posting on the purported owner’s page. As suggested above, the court in Griffin based its ultimate decision on authentication on the totality of the circumstances. Maryland’s highest court has agreed to review the decision.
Additional Developing Issues
It is not difficult to imagine the endless possibilities for legal issues to arise from this new means of communication. Many additional issues have already been the subject of recent important decisions and commentary around the country. For example, there are issues that arise with some frequency related to discovery disputes unique to social media implicating privacy, privilege, and other considerations (See, e.g., Romano v. Steelcase Inc., et al., 907 N.Y.S. 2d 650 (N.Y. Sup. Ct. Suffolk Co., 2010); McMillen v. Humingbird Speedway, Inc., et al., 2010 Pa. Dist. & Cnty. Dec. LEXIS 270 (Common Pleas Jefferson County, September 9, 2010); E.E.O.C. v. Simply Storage Management, LLC, et al., 270 F.R.D. 430 (S.D. Ind. 2010); Evan B. North, “Facebook Isn’t Your Space Anymore: Discovery of Social Networking Websites,” 58 Kan. L. Rev. 1279 (June 2010)), as well as issues peculiar to social media data that arise in the context of litigation over subpoenas. See, e.g., Muniz v. United Parcel Service, Inc., 2011 U.S. Dist. LEXIS 11219 (N.D. Cal., January 28, 2011); Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal., 2010). In the criminal context, recent cases and commentaries discuss possible Fourth Amendment search-and-seizure issues related to social media data. See, e.g., United States v. Werlein, 2010 U.S. Dist. LEXIS 70725 (D. Minn., June 24, 2010); Nathan Petrashek, “The Fourth Amendment and the Brave New World of Online Social Networking,” 93 Marq. L. Rev. 1495 (Summer 2010); Daniel Findlay, “Tag! Now You’re Really ‘It’: What Photographs on Social Networking Sites Mean for the Fourth Amendment,” 10 N.C. J.L. & Tech 171 (Fall 2008).
Finally, there are surveys or bibliographies of additional relevant and fast-developing issues related to social media and other electronic evidence that are useful for keeping current on this new and rapidly developing area of the law. See, e.g., Nancy Levit, “Electronic Evidence Annotated Bibliography,” 23 J. Acad. Matrimonial Law 217 (2010).
It is critically important to consider these new and developing issues related to social media postings. Questions like whether there is a duty to preserve social media postings and when such a duty is triggered may have serious implications depending on who the client is and in what context the issue arises. There are many other evidentiary principles that must be adapted to this rapidly growing field of communication, and the trial lawyer who fails to consider the impact social media has and will continue to have on all kinds of litigation does so at his or her client’s peril.
Keywords: litigation, trial evidence, authentication, social media
David I. Schoen, recipient of the ABA’s National Pro Bono Publico Award, is a solo practitioner with offices in Alabama and New York.
“The Authentication of Social Media Postings,” by David I. Schoen, 2011, Proof 19:3, p. 6. Copyright 2011 © by the American Bar Association. Reprinted with permission.