Understanding and Authenticating Evidence from Social Networking Sites

• Citation: Vol. 7 No. 3
• Publication year: 2012

Washington Journal of Law, Technology Arts Law, Technology and ArtsVolume 7, Issue 3 Winter 2012

Understanding and Authenticating Evidence from Social Networking Sites

Heather L. Griffith(fn*)

Abstract

Social networking is a popular form of online interaction that combines several types of electronic communication in a single user interface. An attorney working with evidence found on social networking sites should have a general understanding of how users create and access content on social networking platforms. Before such evidence may be presented to the jury, an attorney must make a showing of authenticity. The proponent of the evidence may need to use different authentication methods depending on the type of communication involved. This Article provides background information about social networks and explores how to authenticate common types of evidence available on social networking sites.

Introduction .............................................................................. 210

I. A Guide to Social Networking Sites ................................... 212

II. The Federal Standard for Authentication of Evidence

From Social Networking Sites ............................................ 214

III. Authentication of Profiles and Postings .............................. 217

A.Authentication by Distinctive Characteristics ................ 218

B.Corroborating Non-Distinctive Characteristics on Profile Pages or Posts with Additional Evidence ............ 220

IV. Authentication of E-mail and Chats from Social Networking Sites ................................................................ 221

V. Authentication of Photographs and Video from Social Networking Sites ................................................................ 222

Conclusion ................................................................................ 223

Practice Pointers ....................................................................... 223

Introduction

Social networking sites are rapidly becoming a standard method of communication for millions of users. Attorneys may find evidence of these communications useful during trial. Attorneys have sought to introduce evidence from social networking sites, including photographs to show gang affiliation,(fn1) posts to show witness int imidation,(fn2) and messages as evidence against a defendant accused of domestic violence.(fn3) Authentication, a prerequisite to the ad mission of evidence at trial, requires a showing that the evidence in question is what its proponent claims.(fn4)

Social networking sites present unique challenges for authentication. These sites are different than other types of electronic evidence because users create individual profile pages. Most users post identifying information on profile pages; however, social networks are pseudonymous-postings are linked to the person who posted them only through the information he or she has chosen to put on the profile. In addition, questions of who accessed and used the social networking site may arise at trial.(fn5) Often, the proponent must show that a particular person authored the communication, and not simply that it came from a specific social networking profile.(fn6)

As social networking sites become more prevalent , litigators must understand how to authenticate the various electronic formats presented by sites such as MySpace and Facebook. Evidence from these sites may take the form of profile pages, postings, chats, private messages, photos, or video. Authenticating evidence from these social networking sites may involve different methods, depending on the type of communication. Given the time and expense involved, the litigator must know how much foundational evidence a court will require for authentication.

Courts may authenticate evidence from social networking sites by use of distinctive characteristics, testimony of a witness with knowledge, or process testimony, such as testimony from a computer expert. Although users of these sites often fill their profile pages with individualized and distinctive content, the trend in the courts is to require more evidence than just a particularized profile page to authenticate a specific posting on the site. If the characteristics of the specific communication in question are genuinely distinctive, courts will allow circumstantial authentication based on content and context.(fn7) However, courts will require additional corroborating evidence if the characteristics are more general.(fn8)

This Article begins with a guide to understanding how users interact via social networking sites and description of the various forms of evidence on social networking sites. Next, the Article applies the standard for authenticating evidence to social networking sites. The discussion continues with methods of authentication for categories of evidence from social networking sites, including profiles and posts, e-mails and chats, and photographs and video.

I. A Guide to Social Networking Sites

Social networking sites are quickly becoming a common form of communication. MySpace and Facebook are among the most popular sites, and many other sites operate in a similar manner. This section discusses the basic setup for Facebook and MySpace and the ways users interact through these sites.(fn9) On traditional websites, the site's owner typically creates content and makes it available on the Web fo r others to view. On social networking sites, individual users create content inside a framework provided by the site's owner.

A user logs in to an account much like logging in to an e-mail account. Each user has a unique username and password that the user selects when setting up the account.(fn10) Most social networking sites do not verify the identity of the person creating the account.

A unique feature of social networking sites is the individual profile page.(fn11) This profile page is a Web page that the user maintains. Typically, profiles contain personal details, such as the user's name, birthday, gender, current city, interests, or other identifying information.(fn12) A picture, commonly called a "profile picture ," is usually attached to the profile. Sometimes users choose to use the social network pseudonymously and do not provide accurate information or their real name on the profile.(fn13)

After an individual creates a profile page, she establishes connections with other people on the social network. Users connect to one another by linking their profiles to others' profile through a process commonly referred to as "friending."(fn14) The virtual friendship is usually established by one user requesting to link to another user's page via a "friend request" and the second user confirming the friendship request.(fn15) Once the friendship is confirmed, a link appears on the profile page of both individuals. Some users only friend people they have met in person, while others will friend people they have met only through the online network. By establishing friendships, an individual creates a network of users with whom to interact.

There are many ways to interact with other individuals on a social networking site, including "posting" and "tagging." When "posting," users add information, links, pictures, or videos for others to see.(fn16) For example, John may post a link to an interesting online article, and Mary might comment on the post with her opinion of the article. Mary's comments are linked to her profile by her "profile picture" and the name on her profile page. Another type of interaction occurs when users upload content such as digital...