A challenge with using social media data in court is authenticating the author and the information.

Clifford C. Histed is a partner at K&L Gates LLP in its Chicago office. He is a member of the firm’s Trial Academy and is a member of its Steering Committee. Prior to joining the firm, he was a prosecutor in the U.S. Attorney’s Office for the Northern District of Illinois, where he was a deputy chief in its Securities and Commodities Fraud Section and Financial Crime and Special Prosecutions Section. He has also been a supervisory enforcement attorney with the U.S. Commodity Futures Trading Commission, a state criminal prosecutor, and a federal agent.

Desiree Moore is a partner in the Chicago office of K&L Gates. She is the co-chair of the firm’s social media practice group and co-founder of the firm’s digital crisis planning and response client solution. Ms. Moore has nearly 15 years’ experience as a litigator in both state and federal court.

Daniel-Charles (“DC”) Wolf is an associate at K&L Gates LLP in its Seattle office. He is a member of the firm’s appellate litigation and complex commercial litigation and disputes practice groups and focuses on litigation arising from corporate transactions and on constitutional law and government enforcement.

1 See Colorado v. Glover, 363 P.3d 736 (Colo. Ct. App. 2015).

2 See Allen v. Zonis, No. 76768-2-I, 2018 WL 6787925, at *11 (Wash. Ct. App. Dec. 24, 2018) (unpublished).

3 See United States v. Farrad, 895 F.3d 859 (6th Cir. 2018).

4 United States v. Carpenter, 585 U.S.—, 138 S. Ct. 2206 (2018).

5 See, e.g., Onur Varol et al., Online Human-Bot Interactions: Detection, Estimation, and Characterization, ARXIV:1703.03107v2 [cs.SI] (Mar. 27, 2017). 

6 See generally Hon. Paul W. Grimm et al., Authentication of Social Media Evidence, 36 AM. J. TRIAL ADV. 433, 437–38 (2013).

7 United States v. Fluker, 698 F.3d 988, 999 (7th Cir. 2012); see also United States v. Jones, 107 F.3d 1147, 1155 n.1 (6th Cir. 1997) (“The [authentication] rule requires only that the court admit evidence if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification. The rest is up to the jury.”) (quoting 5 Jack B. Weinstein et al., WEINSTEIN’S EVIDENCE ¶ 901(a), at 901–19 (1996)).

8 United States v. Browne, 834 F.3d 403, 412 (3d Cir. 2016).

9 Griffin v. State, 19 A.3d 415, 423 (Md. 2011).

10 See, e.g., id.

11 See, e.g., Tienda v. State, 358 S.W. 3d 633, 634–35 (Tex. Crim. App. 2012).

12 See Grimm, supra note 6, at 455–56 (describing these two approaches and concluding that the latter—which lets the party opposing authentication rebut the proponent’s showing and lets the court admit the evidence conditionally if a reasonable jury could find either way—is superior).

13 United States v. Blanchard, 867 F.3d 1, 6 (1st Cir. 2017) (district court did not abuse its discretion by admitting into evidence prostitution ads from Backpage.com; although there were discrepancies between image metadata and witness testimony regarding date and location at which ads were posted, witness’s testimony about creating and posting the ad, as corroborated by other testimony, was sufficient to authenticate them, and discrepancies went to weight, not admissibility).

14 FED. R. EVID. 104(b) (“Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.”); FED. R. EVID. 403 (“The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”).

15 See, e.g., Allen v. Zonis, No. 76768-2-I, 2018 WL 6787925, at *11 (“. . . Zonis’s argument that Allen also wrote e-mails in a similar manner, specifically using all caps, is contrary evidence that goes to weight, but not authentication or admissibility.”).

16 See, e.g., Richardson v. State, 79 N.E.3d 958, 962–64 (Ind. Ct. App. 2017) (affirming exclusion of evidence even though messages came from Facebook Messenger app on password-protected phone recovered from victim’s body; state’s authenticating witness admitted not knowing who wrote the message and that Facebook messages could be sent through another device logged into the same account).

17 United States v. Vayner, 769 F.3d 125, 131 (2d Cir. 2014). But see Burgess v. State, 742 S.E. 2d 464, 467 (Ga. 2015) (reaching a different result under similar facts by holding that screenshots from a Myspace profile were properly authenticated where officer testified he had confirmed with defendant’s sister that defendant went by the nickname shown on the profile, and where photos on Myspace were consistent with other photos of defendant).

18 Commonwealth v. Mangel, 181 A.3d 1154, 1162 (Pa. Super Ct. 2018) (citing Vayner, 769 F.3d at 131).

19 See, e.g., Stout v. Jefferson Cnty. Bd. of Educ., 882 F.3d 988, 1008 (11h Cir. 2018) (Facebook posts were properly authenticated when alleged authors admitted to creating them).

20 Mangel, 181 A.3d at 1162.

21 See Allen v. Zonis, No. 76768-2-I, 2018 WL 6787925, at *10–12.

22 Burgess, 742 S.E. at 467.

23 See Cotton v. State, 773 S.E. 2d 242, 245 (Ga. 2015) (incriminating Facebook messages were properly authenticated where witness testified, inter alia, that she had seen videos depicting the defendant on YouTube under the same screen name associated with the messages and saw that the defendant’s friends and family were Facebook friends with an account under the same alias).

24 See Commonwealth v. Foster F., 20 N.E. 3d 967, 971 (Mass. App. Ct. 2014) (where the juvenile defendant “appeared on January 28 to play a dating game with the victim . . . exactly as the person sending messages from the Juvenile’s Facebook account had proposed,” Facebook messages sent after the July 28 sexual assault, which contained incriminating admissions, were properly authenticated).

25 See United States v Blanchard, 867 F.3d 1, 6 (1st Cir. 2017).

26 For instance, virtual private network, or “VPN,” services can be used to make it appear as though one’s computer is located somewhere other than its true location. Likewise, sending emails across different time zones can sometimes affect the accuracy of the times listed in the email chain.

27 See supra note 26.

28 See United States v. Farrad, 895 F.3d 859, 865–66 (6th Cir. 2018).

29 Id. (citing United States v. Browne, 834 F.3d 403, 410–11 (3d Cir. 2016)).

30 See Commonwealth v. Mangel, 181 A.3d 1154, 1163 (Pa. Super Ct. 2018).

31 See John G. Browning, With “Friends” Like These, Who Needs Enemies? Passwords, Privacy, and the Discovery of Social Media Content, 36 AM. J. TRIAL ADVOC. 505 (2013) (discussing courts’ differing approaches in addressing motions to compel social media login credentials).

32 United States v. Lewisbey, 843 F.3d 653, 658 (7th Cir 2016).

33 See Brief of Appellee at 4–5, United States v. Allen, 605 F.3d 461 (7th Cir. 2010) (No. 09-2539).

34 Naffe v. Frey, 789 F.3d 1030, 1037 n.2 (9th Cir. 2015) (“Twitter ‘verifies’ certain accounts to ‘establish authenticity of identities of key individuals and brands on Twitter.’ FAQs about verified accounts, Twitter.com, (last visited May 26, 2015). In other words, verification is Twitter’s method of ensuring at least some of its users are who they say they are. Twitter identifies verified users by displaying a blue check symbol next to the user’s Twitter handle.”).

35 See, e.g., Matt Elliott, Two-factor authentication: How and why to use it, CNET (Mar. 28, 2017, 3:51 PM PDT)  (explaining two-factor authentication).

36 Supasorn Suwajanakorn et al., Synthesizing Obama: learning lip sync from audio, ACM TRANS. GRAPH. 36, 4, Article 95 (July 2017). 

37 James Vincent, Watch Jordan Peele use AI to make Barack Obama deliver a PSA about fake news, THE VERGE - TL;DR (Apr. 17, 2018 1:14 PM EDT). 

38 James Vincent, ThisPersonDoesNotExist.com uses AI to generate endless fake faces, THE VERGE - TL;DR (Feb. 15, 2019, 7:38 AM EST). 

39 Allyson Chiu, Facebook wouldn’t delete an altered video of Nancy Pelosi. What about one of Mark Zuckerberg?, WASH. POST (June 12, 2019, 6:32 AM); see also Hannah Denham, Another fake video of Pelosi goes viral on Facebook, WASH. POST (Aug. 3, 2020 1:52 PM). 

40 The doctored video of Nancy Pelosi was not an AI-created “deepfake,” but merely a slowed, pitch-altered video clip in which Ms. Pelosi appeared to be drunkenly slurring her words, illustrating how misleading evidence can be created easily and distributed quickly even without sophisticated technology. See Ian Bogost, Facebook’s Dystopian Definition of ‘Fake’, THE ATL. (May 28, 2019). 

41 Varol et al., supra note 5.

42 United States v. James, No. 17-184 (RJL), 2019 WL 2516413, at *4 (D.D.C. June 18, 2019) (“The Government . . . has not offered sufficient extrinsic corroboration to establish the necessary reliability of its social media evidence. . . . [T]he Government would need to establish that the images and videos that do include James’s image have not been doctored to give the illusion that James possessed firearms he never actually had.”).

43 Id. at *3 (“Snapchat is similarly problematic as some of its ‘key function[s]’ give users the ability to edit images before sharing them.”) (citing Agnieszka McPeak, Disappearing Data, 2018 WIS. L. REV. 17, 34 (2018) (“A key function within Snapchat is the use of Filters, which allows users to add multiple overlays to their images. Lenses also allow ‘real-time special effects and sounds’ to be added to images.”)).

44 See, e.g., Christine Fisher, Facebook fact checkers will soon review Instagram posts, ENGADGET (May 6, 2019). 

45 See Jonathan Mraunac, The Future Of Authenticating Audio And Video Evidence, LAW360 (July 26, 2018, 12:57 PM EDT), (discussing the idea that video and audio recording devices could encode uneditable encrypted digital signatures on recordings, “similar to the ballistic markings left on a bullet by the barrel of a firearm”); Jennifer Langston, Lip-syncing Obama: New tools turn audio clips into realistic video, UW NEWS (July 11, 2017), (discussing Suwajanakorn et al., supra note 36, and stating that “[b]y reversing the process—feeding video into the network instead of just audio—the team could also potentially develop algorithms that could detect whether a video is real or manufactured”).

46 939 F.3d 365, 373-74 (1st Cir. 2019).

47 Id.; accord Zen Design Grp., Ltd. v. Scholastic, Inc., No. 16-12936, 2019 WL 2996190, at * (E.D. Mich. July 9. 2019) (stating that for purposes of summary judgment motion in patent case, YouTube videos depicting reviews of allegedly infringing product were properly authenticated because videos “clearly display the Top Secret UV Pen, identifiable by its name, packaging, appearance, and operation”).

48 No. 1:18-CV-00912, 2020 WL 1016203, at *6 (M.D. Pa. Jan. 22, 2020).

49 Id.

50 Compare People v. Beckley, 185 Cal. App. 4th 509, 516 (2010) (holding that, absent expert testimony, Myspace photo had not been doctored, and precluding possibility that page had been hacked, photo was not adequately authenticated), with People v. Cruz, 46 Cal. App. 5th 715, 730 (2020) (distinguishing Beckley because “[h]ere, we are not concerned with the authentication of a photograph of a person doing something . . . [r]ather, we are concerned with whether . . . the Facebook messages . . . were sent by defendant”).

51 No. 2:15-cv-05642-CAS (JCx), 2019 WL 2992007, at *17 (C.D. Cal. July 5, 2019).

52 Id.

53 Matt Reynolds, Courts and lawyers struggle with growing prevalence of deepfakes, ABA J. (June 9, 2020). 

54 Travis Hartman & Raphael Satter, These Faces Are Not Real, REUTERS GRAPHICS (July 15, 2020).  (discussing telltale indicators that an image of a face is digitally generated)

55 The California Court of Appeals has suggested that this is a formal requirement in certain scenarios. See Beckley, 185 Cal. App. 4th at 516 (trial court erred in admitting Myspace photos absent expert testimony to rule out risks of hacking or digital manipulation).

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