Admissibility of Social Media Evidence

Cases RE: Authentication


A Federal district court explicitly ruled that Facebook screenshots were inadmissible as the defendant in a trademark infringement action merely offered the screenshots without supporting circumstantial information. The Moroccanoil court cited Internet Specialties W., Inc. v. ISPWest, 2006 WL 4568796 in which the court ruled: “Defendant’s argument, that [web pages] could be ‘authenticated’ by the person who went to the website and printed out the home page, is unavailing.” The Moroccanoil court applied the same rule to Facebook screenshots.

STATE OF CONNETICUT V. ELECK, 23 A.3d 818 (2011), 130 Conn.App. 632

Defendant was involved in an altercation where two people were wounded. Eleck claimed some evidence that was admissible had been excluded and thus he was found guilty. To prove that evidence had been kept out which would have exonerated him, he produced copies of Facebook comments made by the State’s Witness. The State’s witness however, while admitting it was her Facebook account, argued that her account was hacked and that she did not write the comments. The court upheld to exclude the Facebook printouts adhering to Federal Rule of Evidence 901 which requires that the evidence provides information which shows that the evidence was in fact authored by the alleged author.

Maryland Approach: Must affirmatively disprove the existence of a different creator in order for the evidence to be admissible.

Texas Approach: Must provide enough evidence for a “reasonable juror” to conclude that an alleged creator did create the evidence.

RENE V. STATE OF TEXAS, 49 So.3d 248 (2010)

In an appeals court, the defendant in a child abuse case argued that evidence obtained from Myspace had been introduced that was prejudicial to his case. He argued the account was not even under his name. In regards to the Myspace pictures his defense attorney argued that:

  1. They lacked proper predicate.
  2. There was no evidence that the appellant created or posted the pictures.
  3. There was no evidence that the photos were not altered.
  4. There was no evidence that the photos were taken after the conviction.
  5. Relevance of pictures was outweighed by the unfair prejudice created by their admission.

Ref.: See Mike G Law for Tampa attorneys.
The Appellate court ruled that there was more relevant evidence in the case that showed the same thing as the Myspace pictures, but in a more compelling manner, therefore the admission of the pictures was not prejudicial (There was stronger evidence showing appellant was a gang member than the Myspace pictures).

Had there been no other evidence showing the appellant was a gang member, the Myspace pictures would have had to fulfill the burden of proof being argued by the defense.

TIENDA V. STATE OF TEXAS, No. PD–0312–11 (Feb. 8, 2012)

During the trial of a criminal court case, prosecutors introduced pictures and comments obtained from a Myspace account attributed to Defendant.

The Defendant objected to the admission of these materials, arguing that their authenticity and his authorship had not been established. The Prosecution argued that authenticity was shown by the distinctive characteristics of the materials (under the state equivalent of Federal Rule of Evidence 901(b)(4)), and the trial court agreed. The Defendant raised the issue again on appeal, but citing the first appellate decision in Griffin v. State of Maryland, 419 Md. 343 (2011) (the one approving admission). The Texas Fifth Court of Appeals affirmed the admission of the materials and the resulting conviction.

The Court of Criminal Appeals was not persuaded and ruled that although many scenarios existed where a great conspiracy took place to create a page under the defendant’s name, all the circumstantial facts taken together were so compelling as to make them admissible. Thus the Myspace evidence was admitted.

UNITED STATES V. VAYNER, 2014 WL 4942227 (Oct. 3, 2014 2d Cir.)

Defendant was convicted on a single count of unlawful transfer of false identification documents and appealed the conviction. At trial, Vladyslav Timku, a Ukrainian citizen living in Brooklyn, NY testified that the defendant provided him with a forged a birth certificate showing that Timku was the father of a made up infant daughter. Timku used the birth certificate to avoid mandatory military service in Ukraine.

Toward the end of the trial, Special Agent Robert Cline with the State Department’s Diplomatic Security Service introduced a printout of a web page which the government claimed was Defendant’s profile page on (described as the Russian version of Facebook).

Defendant objected, arguing that the page had not been properly authenticated and was therefore inadmissible under Federal Rule of Evidence 901. The district court overruled the objection and concluded that the VK page was Defendant’s Facebook page. This decision was later appealed.

Judge Debra Ann Livingston with the U.S. Court of Appeals for the Second Circuit noted that the government did not provide a “sufficient basis” upon which to conclude that the printout was the VK page of Defendant. The court held that while it was “uncontroverted” that information about Defendant appeared on the VK page, there was no evidence that Defendant had created the page or its contents himself. The court further noted that “The mere fact that a page with [the defendant’s] name and photograph happened to exist on the Internet at the time of [the investigator’s] testimony does not permit a reasonable conclusion that this page was created by the defendant or on his behalf.” The Second Circuit analogized the digital account to a printed handbill. If the prosecution had introduced “a flyer found on the street that contained [defendant’s] Skype address and was purportedly written or authorized by him” the Second Circuit reasoned “the district court surely would have required some evidence that the flyer did, in fact, emanate from [defendant].”

The court offered no opinion as to the kind of evidence that would be necessary to authenticate the page. However, the court noted that although the VK page was being used to corroborate Timku’s testimony that it was Defendant who used email id “Azmaduez” to send the forged birth certificate, “Rule 901 required that there be some basis beyond Timku’s own testimony on which a reasonable juror could conclude that the page in question was not just any Internet page, but in fact Defendant’s profile.” The court held that no such showing was made and excluded the evidence.

COMMONWEALTH V. BANAS, 2014 WL 1096140 (March 21, 2014)

A Massachusetts Appellate Court ruled that a Facebook post submitted by the prosecution in a recent criminal case to be inadmissible as evidence. In Commonwealth v. Banas, 2014 WL 1096140 (March 21, 2014), the State introduced the Facebook post in the form of a printout of a screenshot without any additional circumstantial evidence to establish authenticity. The court explained that further information beyond the screenshot itself was required to establish a proper foundation for the Facebook post.

The court adhered to the opinion in Commonwealth v. Purdy, 459 Mass. 442, 447 (2011), which held that “evidence that . . . originates from an e-mail or a social networking website such as Facebook or Myspace that bears the defendant’s name is not sufficient alone to authenticate the electronic communication as having been authored or sent by the defendant” and Commonwealth v. Williams, 456 Mass. 857, 869 (2010), where the Court held that evidence that “a message was from an individual’s Web page was not sufficient to authenticate that the individual wrote the message. Evidence of additional confirming circumstances is needed to authenticate the message.” Similarly in State of Connecticut v. Eleck, 2011 WL 3278663 (Conn.App. 2011), a Connecticut appellate court noted that while the emergence of social media evidence does not necessarily require new rules of evidence, “circumstantial evidence that tends to authenticate a communication is somewhat unique to each medium.”

Cases Cited in the Foregoing Section/Additional Cases of Interest:

Commonwealth v. Purdy, 459 Mass. 442, 447 (2011)

Commonwealth v. Williams, 456 Mass. 857, 869 (2010)

Griffin v. State of Maryland, 419 Md. 343 (2011)

Internet Specialties W., Inc. v. ISPWest, 2006 WL 4568796 (2006)

Motet v. Bank of America 2015 WL1775219, at *8 (Cal ct. app. Apr. 16, 2015)

Linscheid v. Natus Medical Inc., 2015 WL 1470122, at *5-6 (N.D. Ga. Mar. 30, 2015)

State v. Hannah, Docket No. A-5741-14T3, (N.J. App. Div. Decided December 20, 2016)

Information RE: Stored Communications Act (SCA) (18 U.S. Code 2701

The SCA prohibits ISP’s from knowingly disclosing information about their clients and protects their client’s personal information being stored. The SCA was originally written as applying to Internet Service Providers (ISP’s), but has been universally defined to apply to all social media platforms, search engines, email providers, and most other online services that store information about their clients as ISP’s. The SCA applies even when a civil subpoena has been issued, however it does allow for the release of client’s name, address, IP address, length of service, and telephone number when a proper subpoena has been submitted.

Generally speaking, ISP’s fight every subpoena “tooth and nail” and will find any excuse to reject it. Even with a civil subpoena, actual content from the account will NOT be produced. There are exceptions available for releasing information to government agencies in conjunction with criminal cases when several requirements are met.

Cases RE: Requests for Production

THOMPSON V. AUTOLIV ASP, INC., No. 2:09-CV-01375-PMP-VCF, (D. Nev. June 20, 2012), 2012 WL 2342928

Plaintiff was involved in a motor vehicle accident in 2007. During the trial, the Defense Lawyer asked for a “complete” copy of her Facebook pages, but only got 51 heavily redacted pages and eight pictures. The Defense’s request to video tape a browsing of the site was denied.

The court ruled that a lawsuit was not grounds for perusing through some one’s “entire” life. Thus, he used a limited scope and only requested the plaintiff to produce all Facebook and Myspace information dating back to the day of the accident.

TOMPKINS V. DETROIT AIRPORT, 278 F.R.D. 387, 388 (2012)

After a personal injury where Plaintiff sued the airport, the defense asked for a complete copy of the plaintiff’s Facebook account. The court denied the request, indicating that it was too broad and that defense did “not have a generalized right to rummage at will through information that [the plaintiff had] limited from public view.”

The court referenced Romano v. Steelcase Inc., 30 Misc.3d 426, 907 N.Y.S.2d 650 (2010), another injury case where plaintiff refused to turn over Facebook contents. In this case, the defense filed a Motion to Compel to Produce and the court upheld it, indicating that not doing so could:

1) Keep important evidence from the defense and thus put them at a disadvantage.

2) Be a means for plaintiff to hide relevant information.

FLAGG V. CITY OF DETROIT, 252 F.R.D. 346 (2008)

When Plaintiff issued two subpoenas to defendant’s third-party service provider in an effort to obtain applicable discovery, the defense and provider both moved to quash this request under the protection of the Stored Communications Act (SCA). The court held that SCA did not preclude discovery of Defendant’s relevant, non-privileged text messages stored by their non-party service provider. Defendant had “control” over the text messages pursuant to contract between Defendant and their provider. Court established a discovery protocol by which magistrate judges would make initial review of produced emails. Court held that plaintiff could get the information but must use Rule 34 request directed at the defendant to do so. Other courts agreed with the Flagg Court. See, e.g., Barnes v. CUS Nashville, LLC, 2010 WL 2196591 (M.D. Tenn. May 27 2010).

Cases Cited in the Foregoing Section:

Barnes v. CUS Nashville, LLC, 2010 WL 2196591, (M.D.Tenn. May 27 2010)

Romano v. Steelcase, Inc., 30 Misc.3d 436, 907 N.Y.S.2d 650 (2010)

Cases RE: Expectation Of Privacy

RICHARDS V. HERTZ, 100 A.D.3d 728 (2012), 953 N.Y.S.2d 654 (2012)

Plaintiff alleged personal injuries that limited enjoyment of life and physical activity. Defense saw pictures on Facebook showing otherwise (Plaintiff was shown skiing) and requested the court access to the site. The court denied the request and instead ordered Plaintiff to turn over pictures to defense. The defense then argued that the pictures proved there may be more information on Facebook relevant to the case. The court indicated that along with the possibility of more evidence, there would also be plenty of private material that was not relevant to the case. The court decided to video tape the site and then the court would decide what to turn over to the defense and what to exclude.

IN U.S. V. MEREGLIDO, 2012 WL 3264501, (2012)

As part of a grand jury investigation in the Southern District of New York, the Government applied for a search warrant for the contents of Defendant’s Facebook account. Magistrate Judge Frank Maas found probable cause existed to obtain the contents of Defendant’s Facebook account and issued the warrant. Defendant did not contest the magistrate judge’s finding of probable cause. Instead, he attacked the propriety of the Government’s method of collecting evidence to support that probable cause determination. More specifically, Defendant presented a Fourth Amendment challenge to the Government’s use of a cooperating witness, who was one of Defendant’s Facebook “friends” which gave Government access to Defendant’s Facebook profile.

The court refers to Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) in noting that “a person has a constitutionally protected reasonable expectation of privacy when they have both a subjective expectation of privacy and that expectation is one that society recognizes as reasonable.” See. Additionally, the court references United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir.2004) stating that “generally, people have a reasonable expectation of privacy in the contents of their home computers”. The court continues its discussion by explaining that “this expectation is not absolute, and may be extinguished when a computer user transmits information over the Internet or by e-mail”. See Lifshitz, 369 F.3d at 190; see also Guest v. Leis, 255 F.3d 325, 333 (6th Cir.2001).

Again referencing Katz, 389 U.S. at 351-352, 88 S.Ct 507 (1967), the court decides that “when a social media user disseminates his postings and information to the public, they are not protected by the Fourth Amendment. However, postings using more secure privacy settings reflect the user’s intent to preserve information as private and may be constitutionally protected.” The Government viewed Defendant’s Facebook profile through the Facebook account of one of Defendant’s “friends” who was a cooperating witness. By that means, the Government learned that Defendant posted messages regarding prior acts of violence, threatened new violence to rival gang members, and sought to maintain the loyalties of other alleged members of Defendant’s gang. Access to Defendant’s Facebook profile formed the core of the Government’s evidence of probable cause supporting its application for the search warrant.

Where Facebook privacy settings allow viewership of postings by “friends,” the Government may access them through a cooperating witness who is a “friend” without violating the Fourth Amendment. Cf. United States v. Barone, 913 F.2d 46, 49 (2d Cir.1990). While Defendant undoubtedly believed that his Facebook profile would not be shared with law enforcement, he had no justifiable expectation that his “friends” would keep his profile private. Defendant’s legitimate expectation of privacy ended when he disseminated posts to his “friends” because those “friends” were free to use the information however they wanted—including sharing it with the Government. Cf. Guest, 255 F.3d at 333

Court found there was no Fourth Amendment violation in gaining access to defendant’s Facebook profile through one of his Facebook “friends.”

UNITED STATES V. HAMBRICK, 2000 WL 1062039 (4th Cir. Aug. 3 2000)

On March 14, 1998, J.L. McLaughlin, a police officer with the Keene, New Hampshire Police Department, connected to the Internet and entered a chat room called “Gay dads 4 sex.” McLaughlin’s screen name was “Rory14.” In this chat room, Detective McLaughlin encountered someone using the screen name “Blowuinva.” Based on a series of online conversations between “Rory14” (Det. McLaughlin) and “Blowuinva,” McLaughlin concluded that “Blowuinva” sought to entice a fourteen-year-old boy to leave New Hampshire and live with “Blowuinva.” Because of the anonymity of the Internet, Detective McLaughlin did not know the true identity of the person with whom he was communicating nor did he know where “Blowuinva” lived. “Blowuinva” had only identified himself as “Brad.”

To determine Blowuinva’s identity and location, McLaughlin obtained a New Hampshire state subpoena that he served on Blowuinva’s Internet Service Provider, MindSpring, located in Atlanta, Georgia. The New Hampshire state subpoena requested that MindSpring produce “any records pertaining to the billing and/or user records documenting the subject using your services on March 14th, 1998 at 1210HRS (EST) using Internet Protocol Number” MindSpring complied with the subpoena.

The question before this court, therefore, was whether the court must suppress the information obtained from MindSpring, and all that flowed from it, because the government failed to obtain a proper subpoena.

When Defendant surfed the Internet using the screen name “Blowuinva,” he was not a completely anonymous actor. It is true that an average member of the public could not easily determine the true identity of “Blowuinva.” Nevertheless, when Defendant entered into an agreement to obtain Internet access from MindSpring, he knowingly revealed his name, address, credit card number, and telephone number to MindSpring and its employees. Defendant also selected the screen name “Blowuinva.”

As this court has found that the MindSpring materials are not so protected, the predicate for this motion to suppress the materials seized from the defendant’s home failed.

CINETEL FILMS, INC. V. DOES 1-1,052, 853 F.Supp.2d 545, 555-56 (2012)

On August 30, 2011, Plaintiffs CineTel Films, Inc. (“CineTel”) and Family of the Year Productions, LLC (“Family”) filed a complaint against 1,052 John Doe defendants alleging that defendants used a file-sharing protocol called BitTorrent to illegally obtain plaintiffs’ copyrighted pornographic motion picture I Spit on Your Grave.Attached to the complaint is a chart listing the Internet Protocol addresses (“IP addresses”) of the 1,052 Doe defendants — the only identifying information provided to this court — together with the date and time each defendant allegedly accessed the torrent network for the purpose of downloading unlawful copies of plaintiffs’ copyrighted motion picture.

The court ruled that an Internet subscribers’ First Amendment right to speak anonymously is not enough to bar discovery of their subscriber identity information. (By sharing the identity information with the ISP, the subscriber loses his/her reasonable expectation of privacy).

Cases Cited in the Foregoing Section:

Katz v. United States, 389 U.S. 347, 88 S.Ct.507, 19 L.Ed.2d 576 (1967)

Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001)

United States v. Barone, 913 F.2d 46, 49 (2d Cir. 1990)

United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004)

Miscellaneous Cases of Interest

BLAND V. ROBERTS, No. 12-1671 (4th Cir. Sept. 18, 2013)

Employees of the Sheriff’s Department were fired for “liking” a political opponent of the current Sheriff. They argued that their firing was a breach of their 1st Amendment rights. The trial court found in favor of the Sheriff and ruled that “liking” something on Facebook did not amount to “speech”.

The Fourth Circuit Court of Appeals reversed the decision, indicating that whether it is holding a placard, saying something out loud, or using the click of a mouse, it is all “speech” and therefore constitutionally protected. A “like” on Facebook can be construed as if the person had actually said “I like this”, “I support this”, “I am in favor of this”, and so forth.

In summation: “likes” are speech.

MUNSTER V. GROCE, 2005 WL 1364662, (Ind.App., June 8, 2005)

One of the issues in the recent Indiana case of Munster v. Groce was whether the plaintiff had exercised due diligence in locating the missing defendant. In concluding that the plaintiff had not done his part, the court noted that the plaintiff had neither conducted a public records search nor hired a skip-trace service.

Moreover (and perhaps more shockingly), the plaintiff hadn’t even done a Google search. The court seemed to chastise this failure: “[W]e discovered, upon entering “Joe Groce Indiana” into the Google search engine, an address for Groce that differed from either address used in this case, as well as an apparent obituary for Groce’s mother that listed numerous surviving relatives who might have known his whereabouts.”

If a lawyer fails to properly utilize the internet and social media in legal proceedings and discovery, then an acceptable level of care is not met.

*Bosco Legal Services, Inc. is a licensed Private Investigation agency and Certified Experts in the area of Social Media and Internet investigations. We have prepared these case summaries as a free resource to our clients; however we are not attorneys and the information provided should not be construed as legal advice.