IPLJ BLOG FEATURE: From the Desk of the Editor - Fordham Intellectual Property, Media & Entertainment Law Journal
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IPLJ BLOG FEATURE: From the Desk of the Editor

IPLJ BLOG FEATURE: From the Desk of the Editor

Each month, Editor-in-Chief Jacqueline McMahon weighs in on topics and legal issues covered in the IPLJ

It’s an Impersonator, I swear!

The difficulty of using social media evidence in today’s courtroom

The first words out of any recruiter’s mouth are often “Google yourself” or “have you cleaned up your Facebook page?”  To any job-seeker, these are familiar commands readily followed.  Nothing could be worse than an employer stumbling upon that “oops” picture from three years ago with what’s-his-name from never-never-land.  In the world of potential employment, these types of slip-ups are treated as fact, with no room for excuses or explanations.

These indiscretions also have major implications in the courtroom—useful for impeaching witnesses, verifying alibis, confirming associations.  The possibilities are endless.  But lawyers are having a much harder time getting judges to pay attention to (and allow in) this type of “evidence.”  Because of the “possibility of impersonation and digital fabrication in the online world,” the images presented may not be what they seem.  For that reason, judges are sticking with what they do know—the Federal Rules of Evidence—and requiring authentication of social media evidence before allowing its admittance.

More than 30 billion pieces of content are shared on Facebook each month.  This content can be anything from photos to links to blog posts.  If an attorney finds one of these pieces relevant to her case, whether civil or criminal, and wishes to produce printouts of this content for use in court, corroboration is required.  Federal Rule of Evidence 901 mandates that the proponent of the evidence show that the material is what “its proponent claims,” which can sometimes prove more difficult than it seems.

For most social media users, the photo they snapped last Friday night is the same one they uploaded to their Facebook page on Saturday morning.  But tampering, or at least the potential for tampering, is more prevalent than many would guess and is cause for serious concern.  Anyone can masquerade as someone else online.  For example, nothing would prevent someone from creating an e-mail address using my name, establishing a Facebook account using that e-mail address and pretending to be me.  Moreover, and particularly prevalent with students on University campuses, people often leave their accounts logged on at public computers, open to manipulation by the next person to sit at the terminal.  Finally, more technical avenues of tampering are also available to hackers or those willing to purchase digital photo-altering software.

Due to these concerns, the proponent of the social media evidence must prove authorship and timeliness through either direct or circumstantial proof in order to meet the admissibility standard of Rule 901.  First, the proponent has to prove who posted the material.  This may be established through testimony from the author (i.e. “I took the picture and posted it onto my Facebook page”) or a witness or recipient who can testify that the Facebook (or other social media site) page belongs to a certain individual based on the use of a nickname or other identifying information.  Next, the proponent has to show when the information was posted or viewed.  Not all photographs, status updates, blog posts or other content is time-stamped on the site.  So, timeliness may be established by witness testimony as well.

Courts take these rules seriously, too.  In considering the authenticity of social media evidence, courts may consider various factors including:

(1) the consistency of the offered message with another message or posting made by the alleged author; (2) the author’s awareness of the conduct in question as shown in the details of the message; (3) the message’s inclusion of similar requests that the alleged author had made via phone or other communication during the relevant time period; and (4) the message or posting’s reference to a little-known nickname or other intimate piece of knowledge.

Even given evidence of the above four factors, courts may still refuse to allow in the evidence.  In Griffin v. State, for example, the court refused to allow in evidence of a MySpace profile, despite the fact that the state introduced evidence that the profile contained an image of the defendant’s girlfriend, her correct birthdate, and her location.  The court reasoned that an impersonator could have created the page.  Similarly in State v. Eleck, the court refused to allow printouts of Facebook messages on the defendant’s page because the witness claimed that her account had been hacked.  All things considered, it seems once a witness claims “impersonator,” the court is incredibly unlikely to allow the evidence, no matter how relevant (or perhaps accurate) it may be.  If the proponent cannot prove authenticity, the evidence is out. 

So what’s an attorney to do?  One thing is sure: attorneys need to focus not only on making the discovery request for social media information, but also on what or who they will need to present to the court in order to introduce the social media content obtained in discovery at trial.

Or, an attorney can simply avoid the rules altogether and keep the fight out of court.  To avoid the difficulties of introducing this evidence at a trial and the added work involved, some parties and their attorneys have turned instead to using these memorialized errors in judgment as a bargaining chip in negotiations, particularly in family court proceedings.  One survey noted that Facebook was the “unrivaled leader for online divorce evidence.”  Moreover, harassing material posted on social media sites is also being used by courts to grant restraining orders, preventing the posting of more harassing material.

Applying the traditional rules of evidence to modern methods of communication seems to be working okay right now, but the increasing use of social media, e-communication, online phone service, and other alternatives to traditional face-to-face conversations, may soon force courts to reevaluate how they evaluate this type of evidence.

Disclaimer: While official courts may not pay much attention to social media evidence, employers certainly do.  Nothing in this blog should be used to argue with an employer that the person in the picture is not, in fact, you.  Listen to the recruiters and do yourself a favor, Google yourself.

 

Jacqueline P. McMahon

Jacqueline McMahon is a third year law student at Fordham and the current Editor-in-Chief of the IPLJ. Her primary interests include cybercrimes, information privacy, and First Amendment issues. She is also an avid animal lover and enjoys baking in her free time.