This is the fourth and final installment of our social media and online investigations (SMI) series. Our first installment provided tips about how to locate social media accounts. Our second installment focused on the basics of account authentication and how to begin laying the foundation for internet-based evidence. Our third installment focused on how to locate content on the web. In this installment, we will discuss legal issues that could arise when using social media and online evidence in court.
Legal Issues That Could Arise in Court
Since social media use has exploded over the last two decades, people are posting more and more of their lives online. Through social media and online investigation, it is possible to find content to use as key evidence in your case. However, problems can arise when trying to admit social media and online evidence into court.
There have been numerous cases in which online screenshots and printouts have been found inadmissible as evidence. Generally, proof of authorship and authenticity are the main culprits in getting online evidence thrown out. Within the last year, a Pennsylvania Superior Court ruled Facebook posts inadmissible as evidence in criminal cases without proof of authorship (Commonwealth v. Mangel, 2018 PA Super 57).
In 2017, the Federal Rules of Evidence (FRE) gave us more insight into how to use social media and online evidence in court through FRE 902(14). The rule establishes that if data obtained from an electronic device is authenticated by a process of digital identification, then it is considered self-authenticating evidence.
How to Avoid Legal Issues: Authentication and Foundation
Forensic preservation is the best way to avoid social media and online authenticity issues in court. Throughout the series, we have hammered away at this topic because it is so important. Forensic preservation goes further than screenshots or printouts. Though they are needed too, online posts need to be backed up with the computer code behind them (metadata).
Each post’s metadata contains information about where and when the post was published, the author of the post’s account information and what the post looked like when it was published. The information from a post’s metadata can authenticate it as evidence by establishing its digital footprint, or digital identification.
This is key: In order to establish a foundation for evidence, information about who, when and how the evidence was obtained needs to be tracked and documented. This will establish a chain of custody and avert questions about investigative ethics or content authenticity.
In addition, the person collecting and documenting evidence should be eligible to testify in court if needed. Therefore, if you are an attorney on the case, you should be cautious about doing your own research or having one of your staff members do it.
If you have any questions about using social media or online evidence in court, or you would like to set up a training for your firm, visit us at https://www.boscolegal.org.
*This series was originally published in the San Bernardino County Bar Bulletin*
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