Sen “Alex” Wang, MJLST Staff Member
In Volume 13 Issue 1 of the Minnesota Journal of Law, Science & Technology, Ira P. Robbins called for special attention for social-networking evidence used in civil and criminal litigation and proposed an authorship-centric approach to the authentication of such evidence. In recent years, social-networking websites like Facebook, MySpace, and Twitter have become an ingrained part of our culture. However, at least as it appears to Robbins, people are stupid with regard to their online postings since they document their every move no matter how foolish or incriminating on social-networking sites. The lives and careers of not only ordinary citizens, but also lawyers, judges, and even Congress members have been damaged by their own social-networking postings.
Social-networking sites are designed to facilitate interpersonal relationships and information exchanges, but they have also been used to harass, intimidate, and emotionally abuse or bully others. With no effective check on fake accounts or false profiles, the anonymity of social-networking sites permits stalkers and bullies to take their harmful conduct above and beyond traditional harrying. The infamous Lori Drew and Latisha Monique Frazier cases provide excellent examples. Moreover, hackers and identity thieves have also taken advantages of the personal information posted on social-networking sites. Thus, Robbins argued that the growth in popularity of social-networking sites and the rising number of fake accounts and incidents of hacking signal that information from social-networking sites will begin to play a central role in both civil and criminal litigation.
Often unbeknownst to the social-networking user, postings leave a permanent trail that law-enforcement agents and lawyers frequently rely upon in crime solving and trial strategy. Robbins argued that the ease with which social-networking evidence can be altered, forged, or posted by someone other than the owner of the account should raise substantial admissibility concerns. Specifically, Robbins stated that social-networking postings are comparable to postings on websites rather than e-mails. Thus, the authentication of social-networking evidence is the critical first step to ensuring that the admitted evidence is trustworthy and, ultimately, that litigants receive a fair and just trial.
Robbins, however, further argued that the current judicial approaches to authentication of such evidence have failed to require rigorous showings of authenticity despite the demonstrated unreliability of information on social-networking sites. In the first approach, the court effectively shirks its gate-keeping function, deflecting all reliability concerns associated with social-networking evidence to the finder of fact. Under the second approach, the court authenticates a social-networking posting by relying solely on testimony of the recipient. The third approach requires testimony about who, aside from the owner, can access the social-networking account in question. With the fourth approach, the court focuses on establishing the author of a specific posting but failed to provide a thorough framework.
As a solution, Robbins proposed an authorship-centric approach that instructs courts to evaluate multiple factors when considering evidence from social-networking websites. The factors fall into three categories: account security, account ownership, and the posting in question. Although no one factor in these categories is dispositive, addressing each will help to ensure that admitted evidence possesses more than a tenuous link to its purported author. For account security, the inquiry should include at least the following questions: (1) Does the social-networking site allow users to restrict access to their profiles or certain portions of their profiles? (2)Is the account that was used to post the proffered evidence password protected? (3) Does anyone other than the account owner have access to the account? (4) Has the account been hacked into in the past? (5) Is the account generally accessed from a personal or a public computer? (6) How was the account accessed at the time the posting was made? As to account ownership, a court should address, at a minimum, the following key questions: (1) Who is the person attached to the account that was used to post the proffered evidence? (2) Is the e-mail address attached to the account one that is normally used by the person? (3) Is the alleged author a frequent user of the social-networking site in question? Finally, the court should ask at least these questions regarding the posting in question: (1) How was the evidence at issue placed on the social-networking site? (2) Did the posting at issue come from a public or a private area of the social-networking website? (3) How was the evidence at issue obtained from the website?
This authorship-centric approach properly shifts a court’s attention from content and account ownership to authorship, it underscores the importance of fairness and accuracy in the outcome of judicial proceedings that involve social-networking evidence. In addition, it fit within the current circumstantial-evidence authentication framework set out by Federal Rules of Evidence 901(b)(4) and will not require the courts to engage in a more exhaustive inquiry than is already required for other types of evidence.