In today’s world, anyone with internet access can find out where someone was, who they were with, and what they were doing after a 5-second social media search. With this in mind, you’d think every modern court case would rely heavily on the minute-by-minute record of activity that many folks willingly post on their accounts. But – this just isn’t the case. Why? Because social media evidence presents a few very unique challenges that make it difficult for the average investigator or legal professional to properly prepare it for admittance by a judge. As a result, social media content is often underused in court.
Can You Use Social Media Evidence in Court?
Yes, absolutely. However, it’s just not as simple as taking a few screenshots and calling it a day. Social media law is an emerging field, and digital content is always at risk of not meeting the authentication requirements used for all electronic evidence or not being preserved properly. Posts, photos, videos, and other social media content must be accessed and preserved using rigorous investigation methods that record various points of metadata that can prove ownership and/or authorship of the content.
How Do You Authenticate Social Media Evidence?
Authenticating and determining the admissibility of social media evidence depends on many factors, including how the evidence was retrieved, if it was ethically accessed, and whether it can be proved to be the property of a particular person (not a fake account). Let’s look at the top 5 reasons attorneys either fail to get social media content admitted into evidence or avoid attempting to use it in the first place.
1. Questions on Privacy Expectations for Social Media
Richards v. Hertz Corp. established the precedent that there is no reasonable expectation of privacy for social media content and as such the privacy settings for any particular account do not prevent the court from viewing social media content. While the privacy settings may play a role in determining how certain content on a private profile is accessed, they do not offer protection for a client in litigation. As we see again in Vasquez-Santos v. Mathew, private social media content is considered discoverable as long as it is relevant to the case.
As calls from social media users for increased data protection have increased, however, social media platforms have begun limiting the private information that can be gathered via an internet search. While researchers may have been able to find an account’s associated phone number or address to prove ownership in the past, we now must rely more heavily on coding and metadata to establish authenticity. The increasing restriction of access to private data can prevent a serious roadblock for litigators unfamiliar with gathering social media evidence.
2. Using “Catfishing” to Gather Social Media Evidence
Acting as a fictitious person on social media to engage in a relationship or solicit information from another user, known colloquially as “catfishing,” walks a very fine line between ethically questionable behavior and a permitted strategy to gather evidence. This topic remains a murky one when it comes to court cases involving social media, and there are ongoing legal and ethical questions surrounding the use of fake profiles to gain access to private social media content.
In some cases, law enforcement officers or investigators may be within their rights to use undercover operatives (in this case, undercover via a curated social media account) to access information. If a judge sees these actions as violating certain privacy or ethical standards, evidence gained by catfishing may not be admitted in court. This means social media evidence gained by covert means can be a gamble for attorneys.
Clients looking to use social media evidence in court should always turn to professional investigative services that understand the nuances, and know how to stay on the right side of the law.
3. The Ethics of Using Private Social Media Data As Evidence
As social media continues to evolve, so do the opinions of judges, attorneys, and juries on the ethics surrounding accessing “private” social media content. We put “private” in quotations because, as noted above, cases such as United States v. Meregildo have established that most social media posts or photos cannot be reasonably expected to remain private.
In short, social media evidence obtained must adhere to the same ethical standards as all evidence. If evidence spoliation occurs due to nefarious attempts at tampering or negligence, it could be denied by the judge. Those attempting to use social media in legal cases must be diligent about ensuring evidence is authenticated and admissible.
4. Verifying Authorship of Social Media Posts
Anyone submitting content from a social media profile in court must be prepared to verify its origin. First and foremost, you need to preserve metadata according to the standards established in FRE 902(14). Metadata is the coding information attached to any social media post or profile, and can be used to determine things like the user’s unique user ID, location, and time of posting.
This type of data is critical for proving authorship of content you’d like to introduce into discovery. For example, in Commonwealth v. Mangel, the court ruled that evidence from Facebook was not admissible due to lack of authentication. Though the profile in question shared the same name, location, and high school of the defendant, this information alone was not enough to sufficiently prove authorship of the content from the account. If the plaintiff had engaged the help of a social media investigator familiar with the regulations surrounding evidence verification, they may have been able to use this crucial evidence in court.
5. Lack of Proper Collection of Evidence
Collecting social media evidence for use in a legal case requires specific expertise. Whoever collected the evidence will often need to testify in court how they obtained the presented information. If an attorney relies on a client to provide screenshots or print-outs of electronic evidence, their collection method will not stand up to a judge’s scrutiny.
Considering the level of knowledge required to provide evidence of a piece of content’s origin with coding and hashing, an attorney may shy away from introducing social media evidence unless they’ve employed expert investigators to help them prepare their case. In addition to recording important data, professional social media investigators can assist in proving points such as a photo’s posting date vs. taken date, profile ownership based on username or other personal information, and more.
What Are the Best Practices for Using Social Media Evidence in Court?
When using social media content as evidence, you need to be sure you:
- Obtain it ethically
- Can verify its authenticity
- Record specific metadata and hash values
- Can testify to your collection methods
The bottom line is that most social media content goes unused as evidence because of a legal team’s lack of experience or knowledge preparing this type of evidence. This is a very specialized field, and most attorneys can’t be expected to know all of the nuanced ins and outs of obtaining, preserving, and evaluating social media evidence. A professional team of investigators can be a great asset to any case involving social media and help you win your case against those unfamiliar with preparing online content for use in court.