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Social Media Case Law

Admissibility Of Social Media Evidence

The laws that surround social media as evidence are always evolving. You can learn more about social media case law below:

 

 

Case Law: Social Media Authentication

 

When admitting social media into court as evidence, proof of content authenticity and authorship are necessary to avoid having your evidence thrown out. In the court cases below, social media authenticity became main concerns in the case and impacted the overall results:

 

In this case, a federal district court ruled Facebook screenshots as inadmissible when the defendant in a trademark infringement action offered the screenshots without supporting circumstantial information. Moroccanoil referenced Internet Specialties W., Inc. v. ISPWest, 2006 WL 4568796 in which the court ruled: “Defendant’s argument, that [web pages] could be ‘authenticated’ by the person who went to the website and printed out the home page, is unavailing.” Applying this same rule to Facebook screenshots, the screenshots were dismissed. (Referencing Moroccanoil v. Marc Anthony Cosmetics, 57 F.Supp.3d 1203 (2014)). You can read more about this case on our blog.

Eleck was involved in an altercation in which two people were wounded. Eleck claimed certain admissible evidence had been excluded and so he was found guilty. If the evidence had not been excluded, it would have exonerated him. To prove that evidence had been excluded, he provided copies of Facebook comments made by the State’s witness. The State’s witness admitted it was her Facebook account, but she argued that her account had been hacked and she did not write the comments. The court upheld to exclude the Facebook printouts adhering to Federal Rule of Evidence 901, which requires that evidence provides proof of authorship. (Referencing State of Connecticut vs. Eleck, 23 A.3d 818 (2011), 130 Conn.App. 632))

In an appeals court, Rene, the defendant in a child abuse case, argued that prejudicial evidence obtained from Myspace had been introduced to his case. He claimed the Myspace account was not under his name. In regard to the photos obtained from the page, his defense attorney argued:

The photos lacked proper predicate;
There was no evidence that the appellant created or posted the pictures;
There was no evidence that the photos were not altered;
There was no evidence that the photos were taken after the conviction;
The unfair prejudice created by their admission outweighed their relevance.
Ref.: See Mike G Law for Tampa attorneys.

The appellate court ruled that there was more relevant and compelling evidence in the case that showed Rene to be a gang member. Therefore, the admission of the pictures was not prejudicial. If there had not been other evidence showing he was a gang member, then the Myspace pictures would have had to fulfill the burden of proof being argued by the defense. (Referencing Rene v. State of Texas, 49 So.3d 248 (2010))

During the trial of a criminal court case, prosecutors introduced pictures and comments obtained from a Myspace account attributed to Tienda. The defendant objected to the admission of these materials, arguing that their authenticity and his authorship had not been established.

 

The prosecution argued that authenticity was shown by the distinctive characteristics of the materials (under the state equivalent of Federal Rule of Evidence 901(b)(4)). The trial court agreed. The defendant raised the issue again on appeal, but cited the first appellate decision in Griffin v. State of Maryland, 419 Md. 343 (2011) approving admission. The Texas Fifth Court of Appeals affirmed the admission of the materials and the resulting conviction.

 

The Court of Criminal Appeals was not persuaded and ruled that although many scenarios existed where a great conspiracy took place to create a page under the defendant’s name, all the circumstantial facts taken together were so compelling as to make them admissible. Thus, the Myspace evidence was admitted. (Referencing Tienda v. State of Texas, No. PD–0312–11 (2012))

In this case, the defendant was convicted on a single count of unlawful transfer of false identification documents. He appealed the conviction. At trial, Vladyslav Timku, a Ukrainian citizen living in Brooklyn, NY testified that the defendant provided him with a forged birth certificate showing that Timku was the father of a made-up infant daughter. Timku used the birth certificate to avoid mandatory military service in Ukraine.

 

Toward the end of the trial, Special Agent Robert Cline with the State Department’s Diplomatic Security Service introduced a printout of a web page which the government claimed was the defendant’s profile page on VK.com (described as the Russian version of Facebook).

 

The defendant objected, claiming that the page had not been properly authenticated and was therefore inadmissible under Federal Rule of Evidence 901. The district court overruled the objection and concluded that the VK page was the defendant’s Facebook page. This decision was later repealed.

 

Judge Debra Ann Livingston with the U.S. Court of Appeals for the Second Circuit noted that the government did not provide a “sufficient basis” upon which to conclude that the printout was the VK page of the defendant. The court held that while it was “uncontroverted” that information about the defendant appeared on the VK page, there was no evidence that the defendant had created the page or its contents himself.

 

The court further noted that “the mere fact that a page with [the defendant’s] name and photograph happened to exist on the Internet at the time of [the investigator’s] testimony does not permit a reasonable conclusion that this page was created by the defendant or on his behalf.” The Second Circuit analogized the digital account to a printed handbill. If the prosecution had introduced “a flyer found on the street that contained [defendant’s] Skype address and was purportedly written or authorized by him” the Second Circuit reasoned “the district court surely would have required some evidence that the flyer did, in fact, emanate from [defendant].”

 

The court offered no opinion as to the kind of evidence that would be necessary to authenticate the page. However, the court noted that although the VK page was being used to corroborate Timku’s testimony that it was the defendant who used email ID “Azmaduez” to send the forged birth certificate, “Rule 901 required that there be some basis beyond Timku’s own testimony on which a reasonable juror could conclude that the page in question was not just any Internet page, but in fact Defendant’s profile.” The court held that no such showing was made and excluded the evidence. (Referencing United States v. Vayner, 2014 WL 4942227 (2014 2d Cir.))

A Massachusetts appellate court ruled that a Facebook post submitted by the prosecution in a criminal case to be inadmissible as evidence. The State introduced the Facebook post in the form of a screenshot printout without any additional circumstantial evidence to establish authenticity. The court explained that further information beyond the screenshot itself was required to establish a proper foundation for the Facebook post.

 

The court adhered to the opinion in Commonwealth v. Purdy, 459 Mass. 442, 447 (2011), which held “evidence that . . . originates from an e-mail or a social networking website such as Facebook or Myspace that bears the defendant’s name is not sufficient alone to authenticate the electronic communication as having been authored or sent by the defendant” and Commonwealth v. Williams, 456 Mass. 857, 869 (2010), where the Court held that evidence that “a message was from an individual’s Web page was not sufficient to authenticate that the individual wrote the message. Evidence of additional confirming circumstances is needed to authenticate the message.”

 

Similarly in State of Connecticut v. Eleck, 2011 WL 3278663 (Conn.App. 2011), a Connecticut appellate court noted that while the emergence of social media evidence does not necessarily require new rules of evidence, “circumstantial evidence that tends to authenticate a communication is somewhat unique to each medium.” (Referencing Commonwealth V. Banas, 2014 WL 1096140 (2014))

Case Law: Requests for Production

When obtaining information for a case, the involved parties may ask for a request for production. In the court cases below, these requests for production pertained to the individual’s social media accounts. The individual’s right to privacy became a pivotal concern.

 

In this case, the plaintiff was involved in a motor vehicle accident. During the trial, the defense lawyer asked for a “complete” copy of her Facebook page, but only received 51 heavily redacted pages and eight pictures. The defense’s request to videotape a browsing of the site was denied. The court ruled that a lawsuit was not grounds for perusing through someone’s “entire” life. Then, the defense used a limited scope and only requested the plaintiff to produce all Facebook and Myspace information dating back to the day of the accident. (Referencing Thompson V. Autoliv ASP, Inc., No. 2:09-CV-01375-PMP-VCF (2012))

After a personal injury where the plaintiff sued the airport, the defense asked for a complete copy of the plaintiff’s Facebook account. The court denied the request, indicating that it was too broad and that the defense did “not have a generalized right to rummage at will through information that [the plaintiff had] limited from public view.”

 

The court referenced Romano v. Steelcase Inc., 30 Misc.3d 426, 907 N.Y.S.2d 650 (2010), another injury case where a plaintiff refused to turn over Facebook content. In this case, the defense filed a motion to compel production of the content and the court upheld it. The court indicated that not upholding it could keep important evidence from the defense, which would put them at a disadvantage and allow the plaintiff to hide relevant information. (Referencing Tompkins v. Detroit Airport, 278 F.R.D. 387, 388 (2012))

When the plaintiff issued two subpoenas to the defendant’s third-party service-provider in an effort to obtain applicable discovery, the defense and provider both moved to quash this request under the protection of the Stored Communications Act (SCA).

 

The court held SCA did not preclude discovery of the defendant’s relevant, non-privileged text messages stored by their non-party service provider. The defendant had “control” over the text messages pursuant to the contract between the defendant and provider. The court established a discovery protocol by which magistrate judges would make initial review of produced emails. The court held that the plaintiff could get the information but must use a Rule 34 request directed at the defendant. Other courts, like in Barnes v. CUS Nashville LLC, 2010 WL 2196591 (2010), agreed with the Flagg Court. (Referencing Flagg v. City of Detroit, 252 F.R.D. 346 (2008))

Case Law: Expectation of Privacy

An individual’s online privacy rights continue to be a point of debate in the country today. In the court cases summarized below, privacy concerns were prevalent in determining the admissibility of social media evidence.

 

In Richards v. Hertz, the plaintiff alleged personal injuries that limited enjoyment of life and physical activity. However, the defense saw pictures on Facebook showing the plaintiff skiing and requested the court to allow access to the site. The court denied the request and instead ordered the plaintiff to turn over pictures to the defense. The defense argued that the pictures proved there may be more information on Facebook relevant to the case. The court indicated that along with the possibility of more evidence, there would also be private material that was not relevant to the case. The court decided to videotape the site and then decide what to turn over to the defense and what to exclude. (Referencing Richards v. Hertz, 100 A.D.3d 728 (2012), 953 N.Y.S.2d 654 (2012))

As part of a grand jury investigation in the Southern District of New York, the government applied for a search warrant for the contents of the defendant’s Facebook account. Magistrate Judge Frank Maas found probable cause existed to obtain the contents of the defendant’s Facebook account and issued the warrant. The defendant did not contest Magistrate Judge’s finding of probable cause. Instead, he attacked the propriety of the government’s method of collecting evidence to support that probable cause determination. More specifically, the defendant presented a Fourth Amendment challenge to the government’s use of a cooperating witness. The witness was one of the defendant’s Facebook “friends” and gave the government access to the defendant’s Facebook profile.

 

The court referred to Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) in noting that “a person has a constitutionally protected reasonable expectation of privacy when they have both a subjective expectation of privacy and that expectation is one that society recognizes as reasonable.” Additionally, the court referenced United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir.2004) stating that “generally, people have a reasonable expectation of privacy in the contents of their home computers”. The court continued its discussion by explaining that “this expectation is not absolute, and may be extinguished when a computer user transmits information over the Internet or by e-mail.”

 

Again, referencing Katz v. United States, the court decided that “when a social media user disseminates his postings and information to the public, they are not protected by the Fourth Amendment. However, postings using more secure privacy settings reflect the user’s intent to preserve information as private and may be constitutionally protected.” The government viewed the defendant’s Facebook profile through the Facebook account of one of the defendant’s “friends” who was a cooperating witness. By that means, the government learned that the defendant posted messages regarding prior acts of violence, threatened new violence to rival gang members, and sought to maintain the loyalties of other alleged members of the defendant’s gang. Access to the defendant’s Facebook profile formed the core of the government’s evidence of probable cause supporting its application for the search warrant.

 

Where Facebook privacy settings allow viewership of postings by “friends,” the government may access them through a cooperating witness who is a “friend” without violating the Fourth Amendment. Cf. United States v. Barone, 913 F.2d 46, 49 (2d Cir.1990). While the defendant undoubtedly believed that his Facebook profile would not be shared with law enforcement, he had no justifiable expectation that his “friends” would keep his profile private. The defendant’s legitimate expectation of privacy ended when he disseminated posts to his “friends” because those “friends” were free to use the information however they wanted—including sharing it with the government. Cf. Guest v. Leis, 255 F.3d 325, 333.

 

The court found there was no Fourth Amendment violation in gaining access to the defendant’s Facebook profile through one of his Facebook “friends.” (Referencing U.S. v. Mereglido, 2012 WL 3264501, (2012))

On March 14, 1998, J.L. McLaughlin, a police officer with the Keene, New Hampshire Police Department, connected to the internet and entered a chat room called “Gay dads 4 sex.” McLaughlin’s screen name was “Rory14.” In this chat room, Detective McLaughlin encountered someone using the screen name “Blowuinva.” Based on a series of online conversations between “Rory14” (Det. McLaughlin) and “Blowuinva,” McLaughlin concluded that “Blowuinva” sought to entice a fourteen-year-old boy to leave New Hampshire and live with “Blowuinva.” Because of the anonymity of the internet, Detective McLaughlin did not know the true identity of the person with whom he was communicating nor did he know where “Blowuinva” lived. “Blowuinva” had only identified himself as “Brad.”

 

To determine “Blowuinva’s” identity and location, McLaughlin obtained a New Hampshire state subpoena that he served on “Blowuinva’s” internet service provider, MindSpring, located in Atlanta, Georgia. The New Hampshire state subpoena requested that MindSpring produce “any records pertaining to the billing and/or user records documenting the subject using your services on March 14th, 1998 at 1210HRS (EST) using Internet Protocol Number 207.69.169.92.” MindSpring complied with the subpoena.

 

The question before this court, therefore, was whether the court must suppress the information obtained from MindSpring, and all that flowed from it, because the government failed to obtain a proper subpoena.

 

When the defendant surfed the internet using the screen name “Blowuinva,” he was not a completely anonymous actor. It is true that an average member of the public could not easily determine the true identity of “Blowuinva.” Nevertheless, when the defendant entered into an agreement to obtain internet access from MindSpring, he knowingly revealed his name, address, credit card number and telephone number to MindSpring and its employees.

 

As the court found that the MindSpring materials were not so protected, the predicate for this motion to suppress the materials seized from the defendant’s home failed. (Referencing United States v. Hambrick, 2000 WL 1062039 (4th Cir. 2000))

On August 30, 2011, plaintiffs CineTel Films, Inc. (“CineTel”) and Family of the Year Productions, LLC (“Family”) filed a complaint against 1,052 John Doe defendants alleging they used a file-sharing protocol called BitTorrent to illegally obtain their copyrighted, pornographic motion picture I Spit on Your Grave. Attached to the complaint was a chart listing the Internet Protocol addresses (“IP addresses”) of the 1,052 Doe defendants — the only identifying information provided to the court — together with the date and time each defendant allegedly accessed the torrent network for the purpose of downloading unlawful copies of the plaintiffs’ copyrighted motion picture.

 

The court ruled that an internet subscribers’ First Amendment right to speak anonymously is not enough to bar discovery of their subscriber identity information. By sharing the identity information with the ISP, the subscriber loses his/her reasonable expectation of privacy. (Referencing Cinetel Films, Inc. v. Does, 1-1,052, 853 F.Supp.2d 545, 555-56 (2012))

In the case, Vasquez-Santos v. Mathew, a central point at issue was whether private social media information was discoverable/allowable in court. The plaintiff in the case was at one point, a semi-professional basketball player. He claimed he became disabled as a result of a car accident and could no longer play basketball.

 

Through an extensive social media investigation, the defendant found contradicting evidence. They submitted social media pictures of the plaintiff playing basketball after the accident. In these pictures, the plaintiff was “tagged” by friends.

 

The plaintiff claimed these were old photos and were thus inadmissible. In response, the defendant requested an order to have a third-party data mining company be given access to the subject’s private content to investigate these claims.

 

The trial court denied this request. However, the appellate court reversed that decision and allowed access to the plaintiff’s private content due to its probative value and the defense’s right to any content which would show the defendant performing physical activities.

 

Their ruling, along with many others, further shows that private social media evidence can be discoverable, so long as it “contradicts or conflicts with a plaintiff’s alleged restrictions, disabilities, and losses, and other claims” (Patterson v Turner Const. Co., 88 AD3d 617, 618 [1st Dept 2011]). In this case, the court granted the defendant the access to this private Facebook information to defend against the plaintiff’s claims of injury.

 

It is also of particular interest to note that in this case the plaintiff did not post the original photos in question himself, they were taken by a friend and he was only tagged in them. The court found it was “of no import” that the plaintiff did not personally take or post the photos, because “he was ‘tagged’ thus allowing him access to” the content.

Case Law: Miscellaneous Social Media Cases of Interest

For more case law pertaining to social media evidence, please see the following:

 

Employees of the Sheriff’s Department were fired for “liking” a political opponent of the current Sheriff. They argued that their firing was a breach of their First Amendment rights. The trial court found in favor of the Sheriff and ruled that “liking” something on Facebook did not amount to “speech.”

 

The Fourth Circuit Court of Appeals reversed the decision, indicating that whether a person holds a placard, says something out loud or uses the click of a mouse, it is all “speech” and therefore constitutionally protected. A “like” on Facebook can be construed as if the person had actually said “I like this,” “I support this,” “I am in favor of this” and so forth. In summation: “likes” are speech. (Referencing Bland v. Roberts, No. 12-1671 (4th Cir. Sept. 18, 2013))

One of the issues in this case was whether the plaintiff had exercised due diligence in locating the missing defendant. In concluding that plaintiff had not done his part, the court noted that the plaintiff had neither conducted a public records search or hired a skip-trace service.

 

Moreover (and perhaps more shockingly), the plaintiff had not done a Google search. The court seemed to chastise this failure: “[W]e discovered, upon entering “Joe Groce Indiana” into the Google search engine, an address for Groce that differed from either address used in this case, as well as an apparent obituary for Groce’s mother that listed numerous surviving relatives who might have known his whereabouts.”

 

If a lawyer fails to properly utilize the Internet and social media in legal proceedings and discovery, then an acceptable level of care is not met. (Referencing Munster v. Grove, 2005 WL 1364662, (Ind.App., June 8, 2005))

Isaiah Lester and his wife, Jessica, were involved in a tragic car accident when an Allied Concrete Co. truck lost control and flipped onto their vehicle. Jessica later passed away from her injuries. The driver of the truck pled guilty to manslaughter.

 

A year later, Lester filed a civil suit against Allied Concrete Co. seeking compensation for monetary and non-monetary losses following the death of his wife. An attorney for Allied Concrete issued a discovery request for Lester’s Facebook page, including photos, statuses, and messages. After notifying him of the discovery request, Lester’s attorney instructed him to “clean up” his Facebook page and delete certain photos that could “blow up” at trial. Lester proceeded to delete 16 photos from his profile, and later on deactivated his account entirely and claimed to have no Facebook profile in court. Allied Concrete received notice of this action and filed a motion to compel discovery. Even after Lester reactivated his Facebook profile, the 16 photos in question remained deleted (though most were ultimately produced in the course of litigation).

 

The court granted the defendant sanctions against both Lester and his attorney for spoliation of evidence. The jury received an adverse-inference instruction, allowing them to conclude that the Facebook content that the plaintiff deleted would have been damaging to his case. The court also found that Lester and his attorney had violated Rule 3.4(a) of the Virginia Rules of Professional Conduct in attempting to destroy or conceal evidence that had been subject to a discovery request by the defendant. In addition to the adverse-interference instruction, Lester and his attorney were instructed to pay the defendant $722,000 in expenses and attorney fees. Lester’s attorney was also subsequently suspended from practicing law for 5 years for instructing Lester to obstruct Allied Concrete’s access to evidence. (Read more about Lester vs. Allied Concrete Co.)

 

Bosco Legal Services, Inc. is a licensed Private Investigation agency and Certified Experts in the area of Social Media and Internet investigations. We have prepared these case summaries as a free resource to our clients; However, we are not attorneys and the information provided should not be construed as legal advice.

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