Evidentiary Authentication of Social Media Data

Although courts have called the Internet “one large catalyst for rumor, innuendo, and misinformation,” nevertheless, it provides large amounts of evidence that may be relevant to litigation matters. Increasingly, courts are facing presentation of, and challenges to, data preserved from various websites. According to a survey conducted by the X1ediscovery blog, there are over 320 published cases involving social media/web data in the first half of 2012.

Evidentiary authentication of web-based data, whether it’s Internet site data available through browsers, or social media data derived from APIs or user credentials, presents challenges. Given the growing importance of social media posts and data, businesses should be prepared to offer foundational evidence to authenticate any posts that are vital to a case.

Authentication of social media and web data is a relatively novel issue for many courts. Courts have been extremely strict in applying foundation requirements due to the ease of creating a profile or posting while masquerading as someone else. Therefore it is important to go beyond the surface of a social media profile or a post to provide the foundation necessary to authenticate what he evidence for use in court.

Regardless of the type of data, it must be authenticated in all cases. The authentication standard is found in Federal Rule of Evidence 901(a), “The requirement of authentication … is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” United States v. Simpson, 152 F.3d 1241, 1249 (10th Cir. 1998).

The foundational requirement of authentication is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. See US v. Tank, 200 F. 3d 627, 630 (9th Circuit 2000) (citing Fed.R.Evid. 901(a)). This burden is met when “sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity.” This burden was met where the producer of chat room web logs explained how he created the logs with his computer and stated that the printouts appeared to be accurate representations. Additionally, the government established the connection between the defendant and the chat room log printouts based on IP addresses.

See also, Perfect 10, Inc. v. Cybernet Ventures, Inc. (C.D.Cal.2002) 213 F.Supp.2d 1146, 1154, and Lorraine v. Markel American Insurance Company, 241 F.R.D. 534, 546 (D.Md. May 4, 2007) (citing Perfect 10, and referencing additional elements of “circumstantial indicia” for authentication of electronic evidence).

Clearly, there is an emerging trend in the use of social media and web data as evidence. As the use of this type of evidence increases, so too will the consistency and predictability of the foundational matters required by courts. Thus, businesses are well advised to include web collection and social media support in the investigation process so they are prepared to offer the necessary foundational evidence to authenticate any social media posts that may be vital to a case.

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Five Things To Know Now

Here are five interesting articles to look at this weekend.

1. Copyright Fair Use Gets a Boost. Last Friday, the federal district court in Nevada held that the non-profit organization Center for Intercultural Organizing’s posting of a copyrighted news article was a non-infringing fair use. The well-reasoned opinion sets a powerful precedent for fair use and against copyright trolling. http://www.eff.org/deeplinks/2011/04/righthaven-v-cio-it-s-hard-out-here-troll

2. Proper Authentication of Social Media “Evidence” Used at Trial. The Maryland Court of Appeals in the case of Griffin v. State examined a relatively new social media legal issue: determining the appropriate way to authenticate at trial electronically stored information printed from a social networking site. http://www.marylandinjurylawyerblog.com/2011/04/the_maryland_court_of_appeals_2.html

3. Commercial Privacy Bill of Rights Act of 2011 Does Not Spell Do Not Track. Although the proposed law requires disclosure of “clear, concise and timely notice” of a company’s privacy policies and practices regarding the collection, use and distribution of personally identifiable information, the bill does not include specific authorization for a do-not-track mechanism. http://www.itbusinessedge.com/cm/blogs/bentley/senators-formally-introduce-online-privacy-bill/?cs=46477

4. Is Your Web Site Eligible For Trade Dress Protection? While Copyright law protects certain original expression from unauthorized copying, Trade dress law protects commercial use of certain distinct features in connection with a product or service. When consumers associate such “look & feel” features with a product or service, trade dress protection exists. Protection has been extended to the packaging of a product, the décor of restaurant, the design of magazine covers, and even kiosk displays.

In Conference Archives v. Sound Images, 2010 WL 1626072 (W.D. Pa. Mar. 31, 2010), a federal district judge in the Western District of Pennsylvania suggested that under the concept of “look and feel,” trade dress law can reach beyond static elements on a website, such as photos, colors, borders, or frames, to include interactive elements and/or the overall mood, style, or impression of the site since a graphical user interface promotes the intuitive use of the website.” Conference Archives, 2010 WL 1626072 at *15.

5. Do We Need An Open Wireless Regime? See what the EFF has to say. http://www.eff.org/deeplinks/2011/04/open-wireless-movement

ABOUT THE AUTHOR

David M. Adler, Esq. is an attorney, author, educator, entrepreneur and founder of a boutique intellectual property law firm based in Chicago, Illinois. With over fourteen years of legal experience, Mr. Adler created the firm with a specific mission in mind: to provide businesses with a competitive advantage by enabling them to leverage their intangible assets and creative content in a way that drives innovation and increases the overall value of the business. Learn more about me HERE and HERE

David M. Adler, Esq. & Assoc.: Safeguarding Ideas, Relationships & Talent®