As we move towards the third decade of the 21st century, we find ourselves more rooted in the ever-changing landscape of digital information: be it the plethora of social media platforms and other web components of our ‘internet of things’ reality. Nevertheless, social media evidence has become a vital feature in modern litigation cases.
Those who are looking to leverage and properly collect digital evidence in their cases need to be informed of the intricacies of gathering the right data for their case. First and foremost, one must be aware of the Federal Rules of Evidence, especially as it pertains to authentication and identifying evidence.
While Social Media may help tell the story of what happened, before and after, authentication of its evidence is a complex challenge. Social Media evidence is uniquely problematic as it is vulnerable to being tampered, manipulated, forged, and altered. Not to mention that the ease through which a social media account may be falsified, hacked, and accessed by an imposter. The strictness through which authentication of social media evidence will depend on the court in question. But in general, it’s best to be over-prepared to ‘over-authenticate’ the evidence, thus laying down the foundation that erases the possibility of questioning the validity of the authenticity of the evidence.
Authentication of social media evidence must cover these three topics:
1. Circumstantial evidence of authorship or account creation;
2. Identification and verification of evidence (i.e. “chain of custody”); and
3. How the social media platform provides indicia of reliability of its evidence.
1. Circumstantial Evidence of Authenticity
The witness can testify from personal knowledge about contextual clues in the communication that could assert who the author is. Does it show how the person writes, speaks, or behaves?
But they are also looking at how the asserted author’s behavior offline corresponds with the activities shown on social media. Social media posts often show timestamps and geolocation data, so it becomes easier to gather information indicating the date, time, and location of activity.
2. Chain of Custody Evidence
The information gathered needs to have an established chain of custody, showcasing how the data was identified and verified to be included in the exhibit. The testimony needs to show how the evidence was accessed (i.e., screenshot.) One must keep in mind that social media companies can also provide certification of authenticity, but this has its limitations. This type of certification only establishes that the communication depicted took place in a particular social media account on such a date and time, but that may not be enough to fully authenticate the content of a social media post and its specific author. There’s still the danger of the information having been manipulated.
To counter this issue, to the extent possible, it’s best to obtain the login credentials for a social media account, which, at least in theory, only the account’s true owner should possess. This is one of the reliable means to authenticate a social media account.
3. Technological Information as an Authenticity Safeguard
Not all social media platforms are created equal, and each has its operational complexities. Accessing background information about how it operates, primarily how it seeks to protect its account holders from fraudulent content, is one way towards proving the authenticity of the evidence. These are the times when a representative of the social media company may be required to testify.
It’s important to cover what are the social media platform’s terms of service and its policies around false and invented profiles. What are the platform’s requirements for the creation of accounts and its safeguards around login credentials? Does the platform require two-factor authentication or any other security layers? How does the platform handle issues of fraudulent accounts, and how frequent is it?
These are just some starter questions to help one think of how to make sure that their social media evidence will qualify and not be dismissed. The speed at which technology and digital information morphs it requires those on the side of the law to be creative and thorough in ascertaining that they are up to par with the latest technological developments.
It soon may be commonplace for experts who understand the digital landscape and are adept at identifying authentic from fake digital evidence to present testimony on the authenticity of the evidence.
Knowledge is not just about power; it’s also about being responsive and accountable in our service to our clients. At T-Scan, we strive to stay up-to-date with the shifting digital landscape and how it affects litigation cases. We have our eyes on the horizon while staying present to what is unfolding now, and we can best serve our clients. That’s the T-Scan way.