The Admissibility of Social Media Evidence in California State Courts

• Publication year: 2017
• Author: By Mark E. Jackson

THE ADMISSIBILITY OF SOCIAL MEDIA EVIDENCE IN CALIFORNIA STATE COURTS*

By Mark E. Jackson^**

Introduction

In this Digital Age, where technology continues to advance rapidly and reach billions of people around the globe, social media has become a popular form of communication. Through the use of various social media platforms, people can communicate by posting information, sharing photos or videos, sending messages, blogging, microblogging and rating services. Some go as far as revealing the intimate details of their lives, such as personal relationships, political viewpoints or activities of the day.

As a result, social media evidence can play a significant role in determining the outcome of litigation in both the civil and criminal arena. The content of one's posts can shed light on motive, intent, identity, gang affiliation or any other relevant issue in a case. While Facebook, Twitter, Instagram and LinkedIn are some of the most popular websites, the universe of social media is massive and attorneys should familiarize themselves with the entire landscape.

Where Is It and How Do You Get It

Counsel should give careful thought to where the social media evidence is located and how it can be obtained in a case. Frequently, social media evidence can be obtained from digital devices that the account holder or recipient used to access the social media site, such as a smartphone, tablet or laptop computer. Additionally, the evidence may be obtained directly from the social media website, such as Facebook or Instagram.

The more challenging question is how to obtain the desired information in light of various digital privacy laws. In cyberspace, these laws seek to protect citizens against unreasonable searches and seizures of personal information. On the Federal level, electronic communications including social media evidence is protected while in transit and subsequently when stored in cyberspace by the Electronic Communications Privacy Act of 1986, 18 U.S.C. §2510 et seq. and the Stored Communications Act, 18 U.S.C. §2701 et seq. In 2015, California enacted its own version of the Electronic Communications Privacy Act, which extended digital privacy rights to digital devices possessed by citizens. (See Cal. Penal Code § 1546) While a detailed discussion of these statutes is beyond the scope of this article, it should be noted that law enforcement agencies can obtain social media content-based evidence with a valid search warrant. For non-law enforcement agencies and...