The Admissibility of Social Media Evidence: Overcoming the Authentication Requirement

The use of social media and social networking sites has exploded. A 2015 Pew Research Center study revealed that amongst those who use the Internet in the United States, 74 percent use some form of social media. Popular sites and apps include Facebook, Twitter, LinkedIn, Instagram, and Snapchat, to name a few. Given that social media is now frequently used on our mobile devices, we create content through these sites and apps in one form or another almost everywhere we go, generating a vast digital trail of evidence.

Such content, in the form of public posts, private messages, pictures, videos, and tweets, is a valuable source of evidence that can alter the outcome of a trial. For example, a plaintiff in a slip-and-fall personal injury case seen dancing in a social media video or picture could sink their case. As attorneys are increasingly seeking to use social media evidence in trial, the issue becomes whether, and under what circumstances, such evidence is admissible. While all the traditional rules of evidence apply, the greatest challenge to admitting social media evidence will usually be the authentication requirement.

The primary concern that courts have expressed in admitting social media evidence is the potential for such evidence to be fraudulent, fabricated, or manipulated. Anyone familiar with social media sites can understand these concerns. Accounts can be hacked, fake accounts can be created, and fraudulent messages and photos can be sent or posted through such accounts. Such concerns are addressed by the authentication requirement. As one federal district court noted, "electronically stored information, without any indication of its creator, source or custodian may not be authenticated. . ."

To satisfy the authentication requirement, parties introducing social media evidence should be prepared to establish that: 1) the evidence is actually from the social media site it purports to be from; and 2) the evidence originated from the individual that the proponent claims.

In order to satisfy the first requirement, the social media evidence (a printout of a webpage, a video, or a picture), a witness could testify that he or she: 1) printed or downloaded the content; 2) recalls the appearance of the printout or download that he or she made from the social media website; and 3) recognizes the exhibit as that printout or download. For instance, in State v. Gibson, an Ohio state appellate court decision, the requirement was satisfied where the detectives who created printouts of Facebook profile pages testified at the trial that the printouts accurately reflected Facebook profile pages they had viewed on their computer screens.

The second requirement – establishing who owns a social media account or who authored some content linked to that account is often more difficult. Unlike face-to-face conversations, we generally cannot know with the same certainty who is on the other end of a social media interaction. There is a real threat that an individual's account has been "hacked" or is being used by a person who doesn't own the account. Further, fake accounts can be created by individuals impersonating someone else.

In United States v. Vayner, the Second Circuit reviewed a printout of a web page alleged to be the defendant's profile page from a Facebook-type social media site. The trial court had admitted the evidence, accepting at face value that it was the "defendant's Facebook page." The Second Circuit found that the printout was erroneously admitted due to the absence of any foundation establishing that the account was actually the defendant's. The court noted that the social media site did not require verification of one's identity in order to create a profile page – which is common with many social media platforms. Accordingly, even though the page had the defendant's name and photograph, the court recognized that the defendant may not have created the account. Accordingly, the evidence could not be authenticated and was not admissible.

In such situations, the use of circumstantial evidence will be needed to establish authenticity. This might be done by demonstrating that the distinctive character of a social media account corresponds to other known information about the alleged owner, and/or testimony of a witnesses regarding communication with the owner through that account. Additionally, establishing who had access to a social media account is important in demonstrating authorship of evidence. Accordingly, litigators seeking to introduce social media evidence should collect and track as much information as they can about where the social media originated, who authored it, and that individual's general social media presence. The more information a proponent of such evidence can offer to authenticate the evidence, the more likely they will succeed in having the evidence admitted.