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Essential Evidence and Adequate Authentication

We live in a world that is more connected today than ever before. A large part of that connectivity is thanks to social media. It is currently estimated that Facebook has 1.5 billion daily users, and 2.3 monthly users. In any given minute, there are an estimated 347,222 people scrolling through Instagram, and Twitter has approximately 326 million monthly active users.

The average amount of time spent daily by users in total on social media is 116 minutes. So really, it is no surprise that social media has revolutionized how we do business, how we engage with friends and family, how we share news, and how we learn about the world around us. Understandably then, it has also changed the practice of law. Indeed, as the American Bar Association recently noted:

“In addition to pervading most of our lives, the social media phenomenon is having a profound effect on every stage of litigation and in virtually every area of practice. Social media ha[s] become a big part of the way litigators do business, and they pose problems in the litigation process from the first-time lawyers meet with their clients until after judgment is rendered. They affect criminal, civil, and family law litigators alike. They are brimming with potential and fraught with danger for both the unwary lawyer and client.” [1]

Regardless of your area of practice then, social media has likely already been a very valuable source of evidence for you, and if not yet, then chances are high that it soon will be. As any attorney knows, however, evidence is only as valuable as your ability to actually use it. If you can’t adequately authenticate your evidence, then you may as well not have it at all. The question that seems to arise again and again as of late in the legal world is how best to go about doing that?


Adequate Authentication

In theory, authentication rules for social media, as with any type of evidence, should be straightforward. And in principle, they are. In practice, however, they seem to be anything but straightforward. As social media is still a relatively new player on the evidentiary stage, some seem to hold to the belief that a different set of rules should apply, and indeed, it is true that jurisdictions have split in the past as to the precise level of foundational proof required for admittance. From the more rigorous standard employed in United States v. Vayner [2] , and Griffin v. State [3] which held that a printout from a social networking site “requires a greater degree of authentication” due to the potential for fabrication or alteration, to the more lenient standard set forth in Tienda v. State [4] , under which the party offering the evidence only need make a prima facie showing of authentication – that is, present enough circumstantial evidence allowing a reasonable juror to conclude the evidence is what he or she claims it is.

Clearly, jurisdictions across the country have been divided on exactly what is – or is not – required for proper authentication. This can leave attorneys trying to provide the best service to their clients in a bit of a quandary, trying to keep up with the standards set by differing precedents in different jurisdictions, and attempting to make sure that the evidence you need to have admitted for your case passes the test. Attorneys have been trying to meet these standards with screenshots, and affidavits, and countless billable hours wasted printing, gathering, and organizing enough circumstantial evidence to pass the evidentiary hurdle in their particular jurisdiction. This begs the question – from the standpoint of best utilizing valuable time and saving unnecessary expense – what if there was a better way? The good news is, that thanks to recent amendments to the Federal Rules of Evidence, there is.


Filtering through the Federal Rules of Evidence

Generally, we know that per Federal Rule of Evidence 901(a) , authentication is “satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims,” and that the proponent offer a foundation from which a jury could reasonably find that the evidence is what the proponent says it is. See United States v. Long , 857 F.2d 436, 442 (8th Cir. 1988).

Certainly, there are multiple ways in which to authenticate evidence – testimony from a witness with knowledge, the comparison of the item to be introduced with an authenticated specimen by either an expert witness or the trier of fact, or by establishing the distinctive characteristics of the evidence as set forth under the guidance of FRE 901 to demonstrate that the item in question is, in fact, what it purports to be.

These traditional methods of authenticating evidence, while certainly valid, are perhaps no longer the ideal solution for social media evidence, simply by virtue of its very nature. As anyone who has used social media likely understands, without the right protections, digital files can be easily deleted, edited, altered, and or even fabricated entirely. The goal of most attorneys is to provide the best possible service to their clients in the most efficient and effective way possible. Doing this means authenticating the evidence you intend to provide in such a way that questions of deletion, falsification, and fabrication cannot be raised.

The simple truth of the matter is that is ultimately inefficient and ineffective to remain stuck in the past, using antiquated, costly, and unnecessary methods of preserving and authenticating social media evidence. While these methods - methods like taking and printing screenshots, calling in outside witnesses, and gathering affidavit after affidavit to attempt to prove authenticity may at times ultimately succeed in having the evidence authenticated, the truth is that this is not always the case. Moreover, to state simple facts, these methods are outdated, inefficient, and costly.

It can often take an incredible amount of time it takes to print out social media content – Because of the scrolling and expandable nature of most of the content, printing out screenshots of a person’s entire Facebook account (or even several months of their account if a frequent poster) can take an inordinate amount of time. That’s time better spent on other tasks – particularly when the evidence you took so much time to print and organize may be thrown out anyway. Why pursue these outdated methods when there is an easier, more reliable method of authentication available?


Social Media Records: Are They Self-Authenticating?

It has long been true that under FRE 902, some types of evidence are considered “self-authenticating,” thus requiring no extrinsic evidence of authenticity for admission. Indeed, for quite some time, FRE 902 listed 12 types of self-authenticating records. The good news for those seeking to authenticate social media evidence is that recently, and in clear recognition of the fact that digital evidence is here to stay, the Federal Rules of Evidence were amended effective December 1, 2017 to make it easier to authenticate data from electronic sources.

In adding two new subsections to FRE 902, the amendments describe a process for authenticating records “generated by an electronic process or system”, in particular:

Rule 902(13) :
This amendment provides for the self-authentication of: “A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12) ….”

Rule 902(14) :
This amendment provides for self-authentication of: “Data copied form an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of rule 902(11) or (12) …”

Such records include, for example, a printout from a webpage, or a document retrieved from files stored in a personal computer. The rules also provide for using a “process of digital identification” such as hash values to authenticate that electronic data is what it purports to be.

Prior to these amendments to the rule, social media evidence was not considered to be self-authenticating, and as a result, all of the conflicting standards set forth above made it somewhat confusing to know exactly what would be sufficient to meet the authentication hurdle. The new allowance for self-authenticating evidence now means that no longer will the introduction of social media evidence routinely require the testimony of a forensic or technical expert for purposes of authentication. Instead, this electronic evidence can now be certified through a written declaration attesting to a verified hash value of the proffered piece of electronic evidence, and that it was identical to the original.

Indeed, according to the American Bar Association,

When there is no dispute as to authenticity of ESI, 902(13) and (14) should help achieve the laudable goal of reducing the expense of litigation. Rather than present live testimony of a foundation witness, the proponent establishes authenticity under 902(13) and (14) by presenting a certification containing information that would be sufficient to establish authenticity if the information were provided by testimony at a hearing or trial [5] .

This news regarding the authentication of ESI is excellent for those attorneys wishing to truly continue to propel their professional practice forward into a future where digital and social media will remain predominant and critical sources of evidence.


Why WebPreserver?

As a legal professional who cares about your clients and your reputation for professional excellence, we know that you want to support your cases and claims with the best evidence possible. A significant part of that is being able to rely on not only gathering evidence, but being able to easily authenticate it when necessary.

WebPreserver generates forensic reports with a SHA256forensic hash and HTML source code. All online preservations include key identifying Metadata such as the timestamp, the URL, IP address, date, and time, and use a certified Stratum-1 atomic clock in compliance with the eSign

Act. Moreover, the WebPreserver plugin can capture evidence on any device that allows plugins compatible with Chrome and Edge. Anytime, anywhere, without having to rush to your office or call a vendor and hope they preserve it quickly (assuming they have technology that can). It doesn’t matter how many affidavits you produce, or how much human testimony you have as ESI requires technology to demonstrate it was not altered, edited, or doctored.

Say goodbye to manually collecting metadata and relying on outdated and antiquated collection methods, restricted API tools, and utilizing screenshots with affidavits that may risk easy rejection. Call us today to discuss adopting the WebPreserver Plug-in as soon as possible, so your firm can gain the capability of gathering duly authenticated online evidence when required, at a moment’s notice.

[2] 769 F.3d 125
[3] 19 A.3d 415 (Md. Ct. App. 2011) .
[4] 358 S.W.3d 633 (Tex. Crim. App. 2012).

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