In an era of NSA revelations, it’s easy to make jokes that the government has a copy of every phone call or email.
But it is actually close to the truth. The National Security Administration is tracking social media connections, and according to Facebook’s recent report on government requests, the company received 11,000-12,000 requests from American agencies in first six months of 2013. The government clearly believes that social media is a vital piece of any digital investigation.
Unfortunately, many attorneys fail to perform forensically accurate discovery for social media. Thankfully, the past two years have delivered a handful of important social media cases that have established the parameters of any investigation.
There is a Rule for That
As noted in one commonly cited case, Griffin v. Maryland, there is always, “potential for abuse and manipulation of a social networking site by someone other than its purported creator and/or user.” In that case, the court concluded that a printout from a social media site, “requires a greater degree of authentication than merely identifying the date of birth of the creator and her visage in a photograph on the site,” to determine that if a person was the person who published a post.
One of the most commonly cited cases is Lorraine v. Markel American Insurance Co. In this case, Judge Paul Grimm identified the issues a lawyer must consider in determining admissibility of digital evidence, which include the same standards applied to other types of evidence – relevance, authenticity, hearsay, the original writing rule, and probative value as compared with possible unfair prejudice.
One important wrinkle in social media law is that digital evidence like social media will often be entered into the record conditionally. For example, in Lorraine v. Markel American Insurance Co,, the court said that to enter social media evidence into litigation parties do not need to completely authenticate it. As Judge Paul Grimm, the judge in that matter wrote, “the court need not find that the evidence is necessarily what the proponent claims, but only that there is sufficient evidence that the jury might ultimately do so.’”
Lorraine offered some sensible steps to find out if a social media posting is likely authentic:
1. Ask the purported creator if she indeed created the profile and also if she added the posting in question.
2. Search the computer of the person who allegedly created the profile and posting and examine the computer’s internet history and hard drive to determine whether that computer was used to originate the social networking profile and posting in question.
3. Obtain information directly from the social networking website that links the establishment of the profile to the person who allegedly created it and also links the posting sought to be introduced to the person who initiated it.
Of course, Judge Grimm, did not invent those steps – they come from the Federal Rule of Evidence Rule 901. (We have a more detailed explanation of the specific rules here.) While social media is an important new and vital piece of evidence in almost any kind of matter today, the rules that govern discovery and authentication are the same as for any other type of evidence. Lawyers need to study the rules and understand how social media works in order to make proper use of social media in litigation.
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