Authenticating Social Media Evidence (Part II): Federal Rules of Evidence 901(b)(1)
By Elana Harris
As mentioned in Part I of this series, Federal Rules of Evidence (FRE) 901 deals with authentication. FRE 901(a) requires that each item of evidence be authenticated by producing “evidence sufficient to support a finding that the item is what the proponent claims.” Rule 901(b) provides a list of suggested ways to authenticate evidence. Several of the enumerated methods are particularly relevant to social media evidence and other webpage evidence such as blogs and corporate websites. In Part II of this series, we will discuss the challenges of authenticating social media evidence under Rule 901(b)(1). In particular, we will examine the issues that arise when the testifying witness presents printouts of a third party’s social media page to show that the party owns the profile and authored the content. Establishing the page’s authorship in such cases can be an obstacle. Under Rule 901(b)(1), a witness with knowledge of the webpage content can provide testimony “that an item is what it is claimed to be.” The authenticating witness is usually (1) the author, owner and/or sponsor of the social media page or (2) the individual who captured the social media page on a particular date and time.
Witness as the Author/Owner/Sponsor
Case law suggests that courts are more likely to find that the witness has personal knowledge sufficient to authenticate social media evidence under Rule 901(b)(1) when the authenticating witness is the author, owner or sponsor of the webpage. For example, the witness in such cases may testify that he or she created the social media profile or tweeted a message from his or her Twitter account. As the person who owns, maintains and controls the webpage, the witness has personal knowledge of its content. Accordingly, the witness may testify that (1) he or she created the proffered webpage; (2) he or she authored the content in question; and (3) the captured webpage accurately reflects his or her webpage on the date of capture.
Case Illustration: Griffin v. State
In Griffin v. State, 419 Md. 343 (Md. 2011), the defendant in a homicide case alleged on appeal that the trial court abused its discretion by admitting printouts from his girlfriend’s MySpace profile without proper authentication under Md. Rule 5-901. This rule is materially similar to FRE 901. During the trial, the State sought to introduce defendant’s girlfriend’s alleged MySpace profile to demonstrate that the girlfriend threatened a State witness prior to trial. When the girlfriend took the stand, she was not questioned about the pages allegedly printed from her MySpace profile, i.e., she was not the authenticating witness. Instead, the state sought to authenticate the printouts, as belonging to the girlfriend, through the testimony of the lead investigator in the case. The investigator testified that he knew it was the girlfriend’s page because of her birthdate, the photograph of her with defendant, the reference to defendant and the use of his nickname. Discussing the different ways to authenticate social media evidence, the court noted that “[t]he first, and perhaps most obvious method would be to ask the purported creator if she indeed created the profile and also if she added the posting in question, i.e. ‘[t]estimony of a witness with knowledge that the offered evidence is what it is claimed to be.’ Rule 5-901(b)(1).” Agreeing with the defendant, the court ruled the State failed to authenticate the MySpace printouts where they did not provide any extrinsic evidence describing how the investigator obtained the page linking the profile and the posting to defendant’s girlfriend. The court further held that the photograph, personal information and references to defendant were insufficient to enable the factfinder to conclude that the printed MySpace pages were indeed the girlfriend’s. The court emphasized “[t]he potential for abuse and manipulation of a social networking site by someone other than its purported creator and/or user.” As a result, the court concluded that a printout from a social media site “requires a greater degree of authentication than merely identifying the date of birth of the creator and her visage in a photograph on the site” to determine that the person is both the creator of the profile and author of the post. Nevertheless, while it may be sufficient to have the webpage’s creator serve as the testifying witness under Rule 901(b)(1), more often than not, the author of the proffered webpage is the opposing party or a hostile witness. Griffin illustrates this issue clearly as the State did not even attempt to authenticate the Myspace printouts through the purported author, defendant’s girlfriend, when she took the stand. Therefore, unless undisputed and cooperative witness testimony is available, the proponent may have to rely on other methods under Rule 901(b) to authenticate web evidence.
Witness Captured the Webpage
Many courts have rejected social media evidence for failure to authenticate when the testifying witness simply printed a copy of the social media page claiming it belongs to another individual. The problem with authenticating social media evidence here is the court’s concern about altering the original contents of the webpage. This is particularly true when presenting a standard screenshot or printout with no supporting metadata such as time, date and url. Indeed, it is quite simple to manipulate a printout of a webpage with methods such as Photoshop or change the text or image of the html prior to capturing the webpage. Another issue is the witness’s ability to authenticate the social media page when the witness is not the owner of the profile. More and more courts continue to reject social media evidence where the testifying witness merely printed the webpage’s content and alleges the page was authored by another individual. Failure to Authenticate When Witness Prints Third Party’s Social Media Page The following cases demonstrate the challenges of authenticating social media evidence through the testimony of a witness who merely printed the social media page of a third party claiming authorship to that individual.
Linscheid v. Natus Medical Inc.
In Linscheid v. Natus Medical Inc., No. 3:12-cv-76-TCB, 2015 WL 1470122 (N.D. Ga. Mar. 30, 2015), the Northern District of Georgia considered social media evidence on summary judgment. Plaintiffs objected to the Court’s consideration of (1) a printout purporting to be a plaintiff’s resume from Indeed.com; and (2) a screen capture purporting to be another plaintiff’s Linkedln profile. Defendant testified that she located these documents on the Internet and that she printed the Linkedin profile and resume. Finding that defendant made no effort to authenticate the webpage evidence, the court held that these third-party documents were not properly authenticated under FRE 901.
United States v. Vayner
The Second Circuit in United States v. Vayner, 769 F.3d 125 (2d Cir. N.Y. 2014) rejected social media evidence and a copy of an email using similar reasoning as the court in Linscheid. In Vayner, defendant was charged with transferring a forged birth certificate. To prove the forgery, the government introduced a copy of an email with an attachment of the forged birth certificate. The government called as a witness Timku who testified pursuant to a cooperation agreement that defendant sent the forged birth certificate to Timku’s email address from defendant’s email account. To show the connection between defendant and the email account used to send the forgery, the government introduced a printout of a social media page purporting to be defendant’s profile on VK.com – a Russian social media site akin to Facebook. To authenticate the social media page, the government called as a witness a special investigator who testified that the VK profile contained information related to defendant (defendant’s picture, place of work, Skype name and email account) and was accessible on the Internet. Over the defense’s objections, the social media page was used to link the defendant to the email address from which the forged document was sent. On appeal, the Second Circuit vacated the judgment and ordered a new trial. The court found that the mere fact that a social media page existed with defendant’s name and photograph was insufficient to authenticate the printout under FRE 901(a). The court noted that the webpage was introduced to corroborate testimony that it was defendant who used the the email address to send the forged birth certificate. Given the purpose of introducing this evidence, the court held that Rule 901 required more than Timku’s testimony for a reasonable juror to conclude that the webpage was in fact defendant’s profile.
These recent cases suggest that when collecting a third party’s social media evidence to prove authorship of the content in question, it’s simply not enough to present a printout or screen capture under Rule 901(b)(1). More information is required to strengthen the captured social media pages for authentication purposes when the authenticating witness is not the page’s owner. To address the challenges to authenticating social media evidence under Rule 901(b)(1), attorneys should consider the following questions:
1. When, where and how was the evidence collected?
The court in Griffin noted that the proponent failed to provide evidence about how the social media evidence was collected. Recording the time, date, location and manner in which the webpage was captured is an effective way to address this issue. At a minimum, answering these questions prior to introducing the social media evidence in court can help attorneys handle authentication challenges from the judge and opposing counsel.
2. Who collected the evidence?
Interestingly, the individuals who collected the webpage evidence and/or served as the authenticating witnesses in Griffin, Linscheid and Vayner were either on the opposite side (party or witness) from the purported author of the page. This suggests that the witness’s competing interests may be a factor in authenticating social media evidence.
3. How was the evidence preserved?
Though not expressly discussed in this series, proper steps must be taken to preserve web evidence and maintain the chain of custody. Establishing clear protocols for preservation and documenting who took part of the chain may reduce concerns about altering the original webpage content.