We socialize and we socialize. And that is not enough so we socialize on social media. In fact, if you think about it, we may be socializing more on social networking sites than in person. A 2015 Pew Research Center study revealed something mind-blowing: among those people who use the Internet in the US, 74% use some form of social media. So we go one, day after day, creating a digital trail of evidence of every thought we have, every move we make. If you are wondering, social media evidence can include photographs, status updates, people’s location at a certain time, and direct communications. Basically, everything we do on social media can one day be considered as evidence. Now the real question is, can you use social media as evidence in court?
Since we are talking about evidence, let me give you some evidence. Social media use in the US has increased by 356% since 2006. It is as if all we do is open new accounts in every possible social networking sites. Currently, the most used ones are Facebook, Twitter, LinkedIn, Instagram and so on. Moreover, according to the American Academy of Matrimonial Lawyers, more than eight in ten divorce lawyers have relied on social media evidence in their cases. That is why you should know about the dos and don’t of social media during divorce proceedings.
So court cases are increasingly turning on social media. However, social media evidence is not like other forms of evidence. It is fleeting. And even if you make the effort and get the needed data, the big question of authenticity arises. But I will say it up front: yes, you can use social media as evidence in court. There are some factors, however, that need to be considered.
Social media as evidence
Before getting into details let’s go over an example. The example is about Crowe v. Marquette Transportation Company Gulf-Inland, LLC. In January 2015 Louisiana case, an employee working for the company filed a workplace injury suit. But it all did not go smooth like butter on bread. Crowe’s employer found out that the employee had admitted in a Facebook message where he really hurt himself. And it was during a fishing trip. Shameful, right? And when Crowe was requested by his employer to produce his entire Facebook account, he deactivated it and claimed he did not “presently have a Facebook account.”
And it does not end here yet. Then the court forced Crowe to turn over the 4,000 Facebook achieve pages saying, “the Court is troubled by Crowe’s refusal to produce any responsive documents on the basis of the statement that he did not presently have a Facebook account. And the records show that he did not delete his account, but he only deactivated it.” So Crowe’s efforts to avoid producing this material have delayed these proceedings. He also wasted the time of the opposite side and the Court. This example explains how fleeting and in some sense unreliable social media evidence can be. The data is available for both sides in a case. It is only a matter of fact who will use it to their advantage first.
It can also be very easy
On the bright side, using social media as evidence in court can turn out to be very easy. Contents in forms of public posts, private messages, pictures, and videos are a valuable source of evidence. For example, a plaintiff filing a personal injury can lose the case because of a Facebook video, which shows how he slips and falls. The main concern that courts have in admitting social media evidence is the potential for such evidence to be fraudulent, fabricated or manipulated. For example, some of us know what it is like when they hack your account. Other examples are fake accounts, fraudulent messages, and photos. These are the concerns of authentication requirement. In fact, one deferral district court claimed, “Electronically stored information, without any indication of its creator, source or custodian may not be authenticated. ”
But not that easy
Since you understand what a big deal the authentication requirement is, you should prepare social media evidence to establish two important things. First, it should establish that evidence is actually from the social media site it purports to be from. And second, the evidence should originate from the individual that proponent claims. And now we are going to bet a bit technical.
To satisfy the first requirement and be able to use social media as evidence in court a witness could testify that he or she:
printed or downloaded the content
recalls the appearance of the printout or download that he or she made from the social media website
recognizes the exhibit as that printout or download
Satisfying the second requirement is usually much more difficult. Because let’s be honest, it would not be easy to find out who owns a social media account or who authored some content linked to that account. It is not like sitting in a fancy café and having a conversation while seeing and hearing the person. You cannot know who is on the other end of a social media interaction. We all know how easy it is to create a fake account and impersonate someone else.
Rules, rules, rules
Did you know about this rule? A piece of paper or electronically stored information, without any indication of its creator, source, or custodian may not be authenticated under Federal Rule of Evidence 901.” United States v. O’Keefe, 537 F. Supp. 2d 14, 20 (D.D.C. 2008). Since everything is so fleeting when the time comes to using social media as evidence, the authentication of the evidence should at least answer these questions.
How did you collect the evidence?
Where did you collect the evidence?
What types of evidence did you collect?
Who handled the evidence before you collected it?
When did you collect the evidence?
And let’s not forget that social media is a big part of our lives today. So like it or not, it is going to be used as evidence. The ABA Model Rules of Professional Conduct claims that attorneys are expected to utilize technology, including social media, to be able to provide competent and diligent representation to a client. The important thing is to never cross the line and break ethical rules. Generally, lawyers investigating a case can access the individual’s social media account only to review what is viewable to the public. It is inappropriate and not right to step on privacy settings or send a “friend request” only to gain access to whatever you want to.
One should treat Social media as evidence in court as any other type of evidence. However, for admission in court, you must show that the Electronically Stored Information (ESI) is relevant. You also have to authenticate it. Because without authentication your evidence is nothing.