In the recently published opinion of Commonwealth v. Mangel, 2018 Pa. Super. 57 (March 15, 2018) the Superior Court of Pennsylvania addressed the standard for admissibility of social media posts and ultimately disallowed into evidence a social media post presented by the prosecution as a simple screen shot. In Mangel, the State charged the defendant with aggravated assault and harassment and sought, in a pre-trial hearing, to introduce evidence of an image of bloody hands posted to Facebook, as well as messages allegedly authored by the defendant. The Facebook account at issue bore the defendant’s name, hometown and high school, which the prosecution argued was sufficient to authenticate the proffered evidence.
Both the trial court and the appellate court found that merely presenting evidence that the posts and messages came from a social media account bearing the Defendant’s name was not enough to allow the evidence in. Instead, the social media posts must be properly authenticated with direct or circumstantial evidence that corroborates the identity of the author. Such evidence may include testimony from the person who sent or received the communication or contextual clues in the communication tending to reveal the identity of the sender. The State’s computer forensics expert acknowledged that type of substantiation is the only way to determine with a reasonable degree of certainly that the actual user authored the communication in question given that social media accounts are easily hacked or falsified. Although this decision was rendered in the criminal context, its extension to civil admissibility also would be instructive.
The court, in its opinion, noted that “authenticating social media evidence is to be evaluated on a case-by-case basis to determine whether or not there has been an adequate foundational showing of its relevance and authenticity,” and that “authentication of electronic communications, like documents, requires more than mere confirmation that the number or address belonged to a particular person. Circumstantial evidence, which tends to corroborate the identity of the sender, is required.” Metadata is a key form of circumstantial evidence, and the Mangel court noted the absence of two key metadata items: the date the post was created, and account ID:
“A thorough review of the Facebook posts and messages themselves raises specific issues. First, the evidence presented by the Commonwealth does not indicate the exact time the posts and messages were made. The incident which brought about the instant criminal charges occurred allegedly on June 26th, 2016, according to the Criminal Information. The lack of a date and timestamps raises a significant question regarding the connection of the posts and messages to the alleged incident on June 26th, 2016. Furthermore, the ‘Tyler Mangel who allegedly authored the Facebook posts and messages does not specifically reference himself in the incident on June 26th, 2016; rather, other individuals, many of them who are not directly involved in the instant criminal case, reference a “Tyler Mangel” in response to a post made and in subsequent conversations about an alleged assault.”
So with a solution like X1 Social Discovery, both the date of the post and the account ID would have been collected and preserved, which would have addressed these specific problems the court had with the Facebook evidence offered by the prosecution. By using print screen instead, the evidence was thrown out.
Mangel is yet another case illustrating that 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 social media evidence than for any other.
One of the many benefits of X1 Social Discovery is its ability to preserve and display all the available circumstantial evidence 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 social media posts and general web pages 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.
Additionally, when an examiner merely relies on print screen, they also severely limit the scope and thoroughness of the social media and internet collection. Employing more automated means, such as X1 Social Discovery, enables the examiner to quickly collect entire web pages and publically available social media accounts, which can be hundreds of pages long. This allows the examiner to build a much stronger case for authentication by building timelines, drawing more connections between witnesses and their various posts, collecting more collaborating metadata, and a litany of other means to build a compelling circumstantial case to authenticate the social media or web page evidence in question.
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 case disallowed by the court. The prosecutors in Mangel just learned this lesson the hard way.