As technology continues to influence the practice of law, court cases are increasingly turning on social media. But unlike other forms of evidence, social media is fleeting – and, if you can get the data, questions of authenticity arise when you seek to admit it as evidence.
In a recent ABA CLE, “Acquiring, Preserving and Authenticating Websites and Social Media,” Jennifer Ellis of Lowenthal & Abrams PC, and Michael Maschke of Sensei Enterprises, Inc., share how you can obtain and use social media and other forms of digital evidence in your cases.
When it comes to using social media as evidence, all the usual standards apply, said Ellis, who is not only her firm’s go-to expert on digital evidence, but also a consultant with a focus on technology issues.
“Is it relevant? Is it more probative than prejudicial? Is there a hearsay problem or exception? And, is it authentic?” she told lawyers to ask themselves, referencing Federal Rules 401-402, 403 and 901-902.
But in order to get the material in the first place, should you just subpoena Facebook or Twitter?
Ellis said no, explaining that social media sites will likely claim that sharing the information violates the Stored Communications Act. “They won’t respond to a subpoena for the content itself,” she said. But “they do cooperate with authorities in regard to criminal cases.”
What you may be able to get is proof of ownership, which can be critical to the authentication of the evidence if the owner of the account lies and says it isn’t her account. “It’s not easy,” said Ellis, explaining that most of the social media sites are based in California and they will want a local subpoena. “It can be complex—but sometimes critically necessary.”
So, how do you get access to the specific posts you need?
“Trail v. Lesko really spells out where the law is going in terms of getting access to this stuff,” Ellis said of the case, which centered on accessing a Facebook account during discovery. According to Judge R. Stanton Wettick’s decision, a requesting party must show “sufficient likelihood” that such an account would include relevant information that is “not otherwise available” before being granted access to it.
“What it really comes down to is…can you legitimately access [the account] and show that it is contradictory to what the party is claiming? And is it relevant information? Then, you’re probably going to get discovery,” Ellis said. “But nobody is going to let you go on a fishing expedition – that simply doesn’t happen.”
Authentication is often the key to getting social media evidence admitted. “And that’s why research is so important and the discovery is so important. You have to somehow to be able to show not only that the person owns the account, but that they wrote the text [in question],” Ellis said.
She said recent case law provides two widely recognized approaches to authentication: the Maryland standard (Griffin v. State) and the Texas standard (Tienda v. State).
“In Texas, the judge is the gatekeeper for the evidence and the jury makes the final decision as to the reliability of that evidence,” Ellis said. “In Maryland, they want some more detailed evidence. It’s a higher standard and it’s a very difficult standard to meet.” Under the Maryland approach, social media evidence may only be authenticated through testimony from the creator of the social media post; hard drive evidence or internet history from the purported creator’s computer; or information obtained directly from the social media site itself.
The Texas standard is the one that seems most common, Ellis said. “So, in most cases, what you’re going to be looking at is providing appropriate extrinsic evidence.”
Ellis encouraged lawyers to look at the opinion from Pennsylvania’s 3rd Circuit Court of Appeals on U.S. v. Brown that was filed at the end of August. She said the court, like many around the country, used the Texas approach. “Social media evidence is not self-authenticating, even with a certificate from the site,” Ellis said of the court’s opinion. “You have to use extrinsic evidence and the standard is preponderance.”
Asking the right questions in interrogatories and during depositions can help with authentication. First, you will want to narrow the user down to admitting that he uses the social media account in question as well as the device used to post the content. Then, ask if the person posted the content.
“You’ll want to use discovery when you can to push the person into a corner to get them to admit that they wrote the content,” explained Ellis. “You’re going to ask all the questions [that may establish account ownership] before you pull out the social media posts and say, ‘Did you write this?’ Because you don’t want them to see it coming.”
Ellis warned lawyers to obey the law when building a case with online content. “Inappropriately accessing online content is a felony and often a violation of state law, as well,” she said, noting the Electronic Communications Privacy Act and other laws.
Pretending to be someone else online is another big no-no. Ellis cited the case of a lawyer who pretended to be a loved one of a defendant in order to break the defendant’s alibi. A subsequent complaint to the prosecutor’s office got the lawyer fired. “The police could have done this,” Ellis said. “They do things like that all the time. But a lawyer may not.”
The consequences of breaking the law can be huge. Ellis cited a case in Charlottesville, Va., that she called the “granddaddy” of Facebook spoliation cases.
“The deletion of a couple of photos and lying about the existence of a social media account cost this lawyer huge,” Ellis shared. “It cost him his career. It also cost him about $500,000 in sanctions and about $200,000 in sanctions for the client. He left the practice of law and was eventually suspended as well.”
“This stuff is serious – spoliation, attempted spoliation, lying about the existence of social media accounts – it’s just obviously ethically unwise and very costly.”
Your preservation tool box
“The more important the evidence, the more important that you ensure that you preserve it flawlessly – because you’re really going to have a fight over it,” attorney Jennifer Ellis said.
To help lawyers find the right preservation tools, CEO Michael Maschke of Sensei Enterprises had several recommendations.
Keeping a hard copy may be the easiest method of preservation, but it comes with limitations. “The programming language and code behind the scenes that actually makes up the content of the website does not get captured,” Maschke said, noting the exclusion of active content, such as scripts for a newsfeed.
But, if you do keep a hard copy, include the header and footers when printing it, which will generate a date and time stamp as well as record the website address of the printed document.
Free tools, such as Apple’s “grab” utility and Microsoft’s “snipping” function, provides several options to capture screen content. And, Adobe Acrobat Pro allows users to create searchable PDFs directly from website URLs. But again, these options do not capture source code or active content.
A digital forensics examiner, Maschke suggested several more sophisticated options.
Maschke recommended two open-source programs, GNU Wget and HTTrack, both of which can download complete websites and organize the information for the user, saving time and money. They are powerful tools, but there’s a steep learning curve because of the many available options for use, he said.
When using such programs, it can be difficult to view the material since “there’s no easy way to double click, open it and get it to display as it would in a browser,” Maschke said. However, HTTrack offers its own viewer, which can render the information as it appears online. “Unlike the Wget tool, you can navigate the site, click on menu links and view the page like you are actually browsing to it through your internet browser,” he said.
Developed specifically for web-content preservation, especially social media, X1 Social Discovery allows users to capture single pages or social sites in their entirety, and will even gather metadata, such as location information on where posts were made. Users can schedule ongoing collections. And, “you can run key word searches [on the collected content], tag a post or comment on a post and export single artifacts without having to export that entire Facebook account,” Maschke said. The product costs about $1,500 for a year license but users can take advantage of a 14-day trial.
Called a “pumped up” version of a snipping or grab tool, Snagit is another good option. It will capture video, as well as allow users to annotate captures, add notes and it does an especially good job in capturing sites with heavy content displayed vertically in a scrolling format. A license for use costs $50.
Lastly, among cloud-based tools, Maschke recommends the online subscription service Page Vault. “This service will go out behind the scenes, preserve data as it is displayed and make it available to you in a single interface,” he said, noting that it is particularly useful with high-volume captures, such as large company websites with hundreds of thousands of pages, because of the powerful servers that host the service. As an added bonus, the information is not stored on your local system, so you don’t have to worry about backing up the data. Prices start as low as $95 per month, and are based on the amount of storage needed for your captures.