Pennsylvania court on social media evidence authentication

Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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Pennsylvania court on social media evidence authentication

Social media use is pervasive. People communicate online many times everyday. Importantly, those online interactions create digital footprints that can prove to be invaluable - and sometimes detrimental to - litigation.

Of course, the somewhat transient and unverifiable nature of online engagement can present problems for lawyers seeking to use social media evidence during litigation. Because it’s so easy for people to interact anonymously or to impersonate others online, lawyers sometimes encounter difficulties when attempting to authenticate social media evidence at trial.

The Superior Court of Pennsylvania recently provided some guidance in this regard in Commonwealth v. Mangel, 2018 PA Super 57 (2018). In this case, the court was tasked with determining what proof was required to authenticate “social media evidence, such as Facebook postings and communications.”

In reaching its decision, the Court reviewed Pennsylvania appellate court cases that addressed the level of proof needed to authenticate other types of electronic evidence, such as text messages and emails. The Court acknowledged that although social media information is similar to other electronic evidence, it also poses unique challenges “because of the great ease with which a social media account may be falsified, or a legitimate account may be accessed by an imposter.” For that reason, the authentication process for social media evidence must necessarily address those issues and provide a level of certainty regarding account ownership and authorship issues.

Of course the issue then becomes: What level of certainty is required to sufficiently eradicate any doubts regarding those issues? The prosecution asserted that the trial court applied the incorrect standard in this regard when it considered whether there was a “reasonable degree of certainty, reliability, scientific, technological certainty” that the Commonwealth had satisfied the requirements for authentication of the Facebook records.”

Notably, the Court disagreed with the prosecution, concluding that the trial court applied the correct standard: “(I)t is clear that the trial court…applied the proper standard in determining whether the Commonwealth had presented sufficient direct or circumstantial evidence that Mangel had authored the Facebook messages in question.”

Next, the court clarified how to apply that standard to social media evidence, and provided guidance for lawyers seeking to authenticate social media postings: “Initially, authentication…(of) social media evidence is to be evaluated on a case-by-case basis to determine whether or not there has been an adequate foundational showing of its relevance and authenticity…Additionally, the proponent of social media evidence must present direct or circumstantial evidence that tends to corroborate the identity of the author of the communication in question, such as testimony from the person who sent or received the communication, or contextual clues in the communication tending to reveal the identity of the sender.”

Finally, the Court applied that standard to the case at hand, upholding the trial court’s determination that the prosecution failed to properly authenticate the social media evidence at issue: “(T)he Commonwealth presented no evidence, direct or circumstantial, tending to substantiate that Mangel created the Facebook account in question, authored the chat messages, or posted the photograph of bloody hands. The mere fact that the Facebook account in question bore Mangel’s name, hometown and high school was insufficient to authenticate the online and mobile device chat messages as having been authored by Mangel. Moreover, there were no contextual clues in the chat messages that identified Mangel as the sender of the messages.”

So, whether you practice in Pennsylvania or elsewhere, the guidance provided by the Court in this case is instructive. If your client’s case hinges on a particular piece of evidence obtained online, the more proof you can offer to establish the identity of the person responsible for creating the online posting, the better. A multi-faceted approach to establishing authorship is advisable rather than relying on forensic or contextual evidence alone. Certainly forensic evidence alone will be enough in some cases, but not all - and as I always say, better safe than sorry.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. She can be reached at [email protected].