by John Patzakis
In yet another ruling highlighting the reckless practice of relying on mere screenshots to present social media evidence, a Massachusetts Appellate Court ruled a Facebook post submitted by the prosecution in a recent criminal case to be inadmissible as evidence. In Commonwealth v. Banas, 2014 WL 1096140 (March 21, 2014), the State introduced the Facebook post in the form of a printout of a screenshot without any additional circumstantial evidence to establish authenticity. The court explained that further information beyond the screenshot itself was required to establish a proper foundation for the Facebook post.
The court followed the case of Commonwealth v. Purdy, 459 Mass. 442, 447 (2011), which held that “evidence that . . . originates from an e-mail or a social networking Web site such as Facebook or MySpace that bears the defendant’s name is not sufficient alone to authenticate the electronic communication as having been authored or sent by the defendant.” And Commonwealth v. Williams, 456 Mass. 857, 869 (2010), where the Court held that evidence that “a message was from an individual’s Web page was not sufficient to authenticate that the individual wrote the message. Evidence of additional confirming circumstances is needed to authenticate the message.” Similarly in State of Connecticut v. Eleck, 2011 WL 3278663 (Conn.App. 2011), a Connecticut appellate court noted that while the emergence of social media evidence does not necessarily require new rules of evidence, “circumstantial evidence that tends to authenticate a communication is somewhat unique to each medium.”
Social media provides torrential amounts of evidence potentially relevant to litigation matters, with courts routinely facing proffers of data preserved from various social media websites. This evidence must be authenticated in all cases, and the authentication standard is no different for website data or chat room evidence than for any other. Under Federal Rule of Evidence 901(a), “The requirement of authentication . . . is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” United States v. Simpson, 152 F.3d 1241, 1249 (10th Cir. 1998).
Ideally, a proponent of the evidence can rely on uncontroverted direct testimony from the creator of the web page in question. In many cases, such as in the Banas case where incriminating social media evidence is at issue, that option is not available. In such situations, the testimony of the examiner who preserved the social media or other Internet evidence “in combination with circumstantial indicia of authenticity (such as the dates and web addresses), would support a finding” that the website documents are what the proponent asserts. Perfect 10, Inc. v. Cybernet Ventures, Inc. (C.D.Cal.2002) 213 F.Supp.2d 1146, 1154. (emphasis added) (See also, Lorraine v. Markel American Insurance Company, 241 F.R.D. 534, 546 (D.Md. May 4, 2007) (citing Perfect 10, and referencing MD5 hash values as an additional element of potential “circumstantial indicia” for authentication of electronic evidence).
One of the many benefits of X1 Social Discovery is its ability to preserve and display all the available “circumstantial indicia” or “additional confirming circumstances,” to borrow the Perfect 10 and Banas courts’ terms respectively, to the user in order to present the best case possible for the authenticity of social media evidence collected with the software. This includes collecting all available metadata and generating a MD5 checksum or “hash value” of the preserved data for verification of the integrity of the evidence. It is important to collect and preserve Tweets, Facebook, Instagram and LinkedIn entries in a thorough manner with best-practices technology specifically designed for litigation purposes. For instance, there are over twenty unique metadata fields associated with individual Facebook posts and messages. Any one of those entries or a combination of them contrasted with other entries can provide unique circumstantial evidence that can establish foundational proof of authorship. (We identify the nearly two dozen fields of unique Twitter metadata in our white paper available here).
When lawyers and their service providers rely on simple screen captures, printouts or even compliance archiving solutions that fail to collect and preserve all key metadata to admit social media into evidence, they run a significant risk of having key evidence in support of their client’s case disallowed by the court.