A man identified as Zimmerman (Zimmerman vs. Weis Markets, Inc) suffered an injury while operating a forklift in the course of his employment at a Weis Markets warehouse. Following the injury, he filed a suit against Weis Markets claiming that he lost wages and was now burdened with an emotionally traumatic scar that prevented him from wearing shorts in public. The defendant took a look at Zimmerman’s public social media profiles, and lo and behold found evidence that he enjoyed “bike stunts” alongside photos of him with a motorcycle and facial injuries around the time of his alleged forklift accident.
And as for the declaration that he was unable to wear shorts? The defense also found pictures on his public Facebook profile directly contradicting that claim. The court called for Zimmerman to turn over his social media login credentials, determining that his privacy interests did not outweigh the defendant’s right to obtain further relevant evidence.
What does Zimmerman’s case teach us? That social media evidence has its place in court, and its prevalence will only continue to grow as reportedly 70% of Americans use social media profiles on a least a monthly basis. Determining the admissibility of such evidence is unfortunately not always as straightforward as it may seem. This article will dive into the requirements for authenticating and submitting social media evidence into discovery.
What is Social Media Evidence?
Social media evidence may consist of posts, photos, profiles, and other information publicly – and in some cases privately – published on a social networking platform such as Facebook, Twitter, Instagram, TikTok, Snapchat, etc. In order for social media posts to be admissible, they must be authentic, relevant, and properly retrieved.
How Do you Retrieve Social Media Evidence?
If you plan on using posts or photos from social media to defend your position in court, you’ll first need to obtain that evidence appropriately. Some general laws pertaining to ethical evidence gathering apply directly to electronic evidence, and the Fourth Amendment can come into play when establishing a person’s reasonable expectation of privacy on the Internet. A person is also prohibited from destroying evidence that may be relevant to an ongoing investigation, and therefore deleting social media content can lead to claims of spoliation or sanctions.
The Stored Communications Act 18 U.S.C. §§ 2701 to 2710 (SCA) protects a person’s privacy interests regarding information stored electronically, and social media platforms are required to adhere to certain security standards when in possession of a user’s personal information. The SCA can not be used by an individual to refuse a subpoena for social media evidence, but the companies themselves can invoke it to avoid divulging privately held data.
If you don’t have a warrant or court order for obtaining private social media evidence, you may only be able to access and document a user’s public information. In most cases, a simple screenshot is no longer enough to convince a court of the authenticity of a piece of electronic evidence. Specialized social media investigation services play an important role in these instances, tracking and recording critical details such as metadata, creating hash values, and code language that can authenticate when, where, and by whom a post was made in the eyes of the law.
Guidelines for Retrieving Social Media Evidence:
- Capture everything. Record and document as much as possible surrounding the events and persons whom you are planning to face in court. Don’t just screenshot individual posts; make an effort to obtain full profile and metadata information, including timestamps, URLs, and IP addresses. This will also help preserve data evidence in the event that posts are deleted by the owner. Learn more about professional social media investigation and authentication.
- Provide context and maintain integrity. For any evidence to be admissible, it must be untampered with and appear in the exact condition in which it was found. Ensure that your documentation of social media activity presents a full and clear picture of any posts or photos – without any edits or manipulation. This will also provide context for a judge or jury as they determine whether your claims are valid.
- Use ethical methods. The ethics of social media evidence procurement can sometimes seem muddy due to the varying levels of privacy and security on diverse platforms. While providers are required to secure data under the SCA, it is often left up to users to determine the level of privacy for their own personal data.
For example, a Facebook user may have a public profile containing her name, birthday, and location, but choose to only allow “friends” on the platform to view her photos and status updates. Anyone may ethically access the public information, but the “friends only” information presents a quandary. If your legal team were to send a friend request to the user under false pretenses (i.e. their goal is to gather evidence, but they pretend to be a person who the subject knows interested in making a social connection), then that evidence could be called into question. If an existing “friend” of the user agrees to be a cooperating witness, however, they may provide access to the information at their disposal as per the user’s privacy settings. See: United States v. Barone, 913 F.2d 46, 49 (2d Cir.1990).
The variations in this situation are almost endless, which can present a challenge for understanding what is/is not ethical discovery of social media evidence. What if a third party posted an incriminating photo of a defendant? Or a case where a defendant claims they have no knowledge of the social media content and have been hacked? Even trickier – how do you establish the parameters of what content on a prolific account spanning years of a person’s life is relevant for a search warrant/court order? Here are a few key examples of social media case law regarding questions such as this.
Authenticating Social Media Evidence
Gathering your evidence is only step one; next, you’ll need to prove its authenticity. FRE 902(14) established the rules for electronic data (such as social media posts) that may be admissible in court.
However, different states and different courtrooms will vary in their requirements for introducing social media evidence into discovery. Due to the possibility of impersonation, false authorship, and fake accounts, some judges may require counsel to firmly eliminate the chance that any person other than the accused party could have created the posts or photos. On the other hand, some courtrooms may treat social media evidence more akin to traditional evidence and evaluate it on the basis that a “reasonable juror” would believe the supposed author created the content. Explore this article for a more in-depth look at this topic.
How Do You Authenticate Social Media Evidence?
Your best chance at being able to use social media evidence in court is enlisting a team of professional social media investigators to procure appropriate data, ensure chain of custody, and maintain the integrity of electronic information.
In general, the basis of establishing social media evidence’s authenticity includes three main principles:
- Proof of authorship or account ownership. This is circumstantial evidence that requires a thorough record of supporting documents or witnesses. What we mean is: one Facebook profile page does not prove that a certain person is responsible for the content of that account. Instead, you’ll need to have evidence such as:
- Metadata and digital signatures as established in FRE 902(14).
- Witness accounts that indicate a person is indeed the owner and author of certain posts. For instance, a witness could testify that a message from a certain account contained private information that only the defendant would know, or acknowledge consistent writing styles across various communications.
- Usernames or profile photos used consistently across multiple social media platforms that are positively associated with a particular person.
Take Pennsylvania Superior Court case Commonwealth v. Mangel. Facebook posts created by a user with the same name, location, and high school as the defendant were introduced as incriminating evidence. The court determined that social media evidence was not admissible and that those factors did not sufficiently prove authorship by the defendant. This case highlights how forensic preservation of electronic data, including recording back-end metadata, can be so crucial to your case’s success.
- Forensic preservation. As established above, the way you obtain and store electronic information matters. Full metadata should be preserved and it should undergo no alterations or changes, and all transcriptions or transfer of information must be properly documented. It is this chain of custody that allows relevant electronic data from social media platforms to be discoverable. You may also compel social media platforms to provide certain data (such as account information or IP addresses) that can further substantiate the time, location, or computer from which a post was made.
- Establishing reliability. The way in which a platform ensures the secure collection and storage of personal information can support authentication. If the company uses measures such as two-factor authentication, “verified” public accounts, and email confirmations, this can be a boost to your claim that the social media evidence you’ve gathered is reliably associated with a particular person.
The bottom line: over-authenticate as much as possible when it comes to social media. Before heading to court, research whether the presiding judge has heard social media cases in the past and what standard the evidence was held to in those instances. Remember that you may need a warrant/court order to legally obtain certain private information.
Tools for Social Media Investigation
There are a variety of avenues available for gathering and authenticating social media evidence, and your best investment will always be hiring a specialized service with extensive experience in this area that can provide the right kind of documentation for court. If you decide to do some digging yourself, be sure to do your homework.
Bosco Legal can help you prepare to litigate perpetrators of online harassment and more with our investigative services. Get in touch today to learn more about what you need to do before heading to court.