Now it may be harder for opponents to use social media posts against you in court

Filed under: Criminal Law, Litigation by Contributor @ October 22, 2018

Can your social media posts be used against you in court? The simple answer is yes, but only if the posts are properly authenticated. In light of recent hacks to social media sites like Facebook, authenticating social media posts in court is becoming more challenging.

There are two basic questions that need to be answered before a social media post is admissible in court.

First, is the post actually from the site it reflects? Essentially, if it was a Facebook post, does the information on the proffered post appear exactly the same on Facebook ?

According to David Schoen in his article for the American Bar Association, “The second, more complicated, question is whether the posting can be satisfactorily shown to have arisen from the source (the particular person or entity) that the proponent claims.”

There are several ways to lay a foundation for a social media post in court. First, the author of the post could testify that they made the post or recognize it. Alternatively, a forensic computer expert could testify they examined the hard drive and retrieved the post from the hard drive of the particular computer.

Relevant factors in authenticating these posts include:

  • username shown on the profile page
  • shared social media password with other people
  • photograph on the profile page that identifies the person
  • personal information on the profile page:  birthday, unique name, or other information that corresponds to known information for the person

However, with recent hacks to social media websites, such as the recent Facebook hack to the “View As” feature, which allows users to see their own Facebook page the way someone else would, opponents in court may not be able to authenticate Facebook posts in court. Facebook does not know if accounts were misused or if the hackers gained access to personal information. Facebook Login, which allows users to access other popular sites with their Facebook profile, was also affected. Therefore, sites where you login to Facebook such as Instagram, might have been affected.

Consequently, opponents in court are facing increasing authentication challenges with regard to Facebook posts. The increasing number of hacks makes it more likely someone else could have access to you account and post from your social media account. Opponents will have a harder time proving you wrote the social media post they wish to be authenticated. Therefore, social media posts are becoming more suspect and less likely to be authenticated.

For more information on authenticating social media posts in court:

https://fairlielaw.net/pa-superior-court-holds-that-social-media-must-be-authenticated-to-be-admissible-evidence/

Also:

https://apps.americanbar.org/litigation/committees/trialevidence/articles/051711-authentication-social-media.html

 

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