A Prolific Landscape: The Admissibility of Social Media Postings
As of the third quarter of 2017, 2.07 billion people actively used the social networking site Facebook on a monthly basis.1 Instagram, the mainly mobile photo-sharing network, serves 800 million active monthly users.2 Snapchat users view more than 10 billion videos on the mobile application every day.3 Statista reports that WhatsApp, a smartphone messaging app, has more than one billion monthly active users.4 These statistics serve to illustrate the monumental influence digital networking wields upon contemporary society.
Although some digital evidence is self-destructing because of the nature of the technology employed, innovative forensic investigators are able to recover seemingly transient data for use in later court proceedings. Digital evidence is often critical in proving or disproving a material issue. Thus, a court determination regarding the admissibility of such evidence can create profound consequences on the outcome of a case. Although the proliferation of recovered digital evidence has created a burgeoning body of caselaw, the courts are not always unified in their approach to determining the admissibility of such evidence. Considering this landscape, and as the digital revolution continues to engulf the world, many legal practitioners struggle to formulate workable guidelines to assist them in admitting internet posts and messages at trial.
This article focuses on the use of traditional evidentiary principles in establishing a sufficient foundation for the admission of internet postings and messages under Florida law by 1) establishing relevance; 2) proving authenticity; and 3) demonstrating that the posting or message falls within a recognized exception to hearsay.
Relevance
The Florida Evidence Code is devoid of specific provisions governing the authentication of social media posts or text messages. However, at least one legal scholar has noted that “ the emergence of social media such as email, text messaging, and networking sites like Facebook may not require the creation of new rules of authentication with respect to authorship. ”5 In Florida, the general rule is that “[a]ll relevant evidence is admissible, except as provided by law.”6 Further, “[r]elevant evidence is evidence tending to prove or disprove a material fact.”7 Lastly, “[r]elevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.”8 Thus, as with any other evidence, the threshold issue for the admissibility of social media posts or messages is relevance.
The pragmatic impact of multiple sources contributing to data is illustrated by the following hypothetical Facebook post. A Facebook user, Lisa Smith, “checks in” at a local restaurant and posts a photograph of her and several friends at the venue. The post reflects a geotag confirming the location of the restaurant. Additionally, a time and date stamp appears on the post. Smith has posted the following description of her observations: “The avocado toast is scrumptious.” She tags her companions. Several of her Facebook “friends” immediately post comments, including: “My cousin is working and just saw you there!” Smith later claims food poisoning and sues the restaurant. A review of her post yields information regarding what she consumed that day, input by her, witnesses present that day, tagged by her, and confirmed by them, her location, tracked by geotag, and a comment confirming a server saw her, input by a third party. Although each of these quantities could serve to prove or disprove a material fact, each discreet piece of information will require a different analysis for admissibility.
In determining relevance, discreet pieces of information discernible from a single post must be isolated to determine whether they have bearing on a material fact. Succinctly stated, the proponent must identify which piece of data is relevant to prove or disprove the fact that is at issue in the case. In light of this consideration, a significantly different analysis should be used to determine admissibility of Smith’s statement, “The avocado toast is scrumptious,” as compared to demonstrating exactly the location at which the post was made, who was present at the venue, who viewed Smith’s post, or a viewer’s articulated reaction to the post.
Several Florida appellate opinions address the relevance of electronic evidence in the context of discovery disputes. In Root v. Balfour Beatty Const. LLC, 132 So. 3d 867 (Fla. 2d DCA 2014) , the Second District Court of Appeal considered the propriety of an order compelling the production of Facebook pages.9 T he trial court required the plaintiff, who was claiming loss of consortium following injury to her three-year-old son, to produce electronically stored information relating to her mental health, alcohol use, and relationships with friends and family members. The appellate court considered whether the order was overly broad, and began by noting that “trial courts around the country have repeatedly determined that social media evidence is discoverable.” As the plaintiff’s claim was premised upon loss of consortium, the court stated that discovery should have been limited to evidence related to the impact of the child’s injury upon his mother. As such, the compelled production was irrelevant and the discovery order was quashed. The court did conclude with the following caveat: “Should further developments in the litigation suggest that the requested information may be discoverable, the trial court may have to review the material in camera and fashion appropriate limits and protections regarding the discovery.”10
In a later opinion, Nucci v. Target Corp., 162 So. 3d 146 (Fla. 4th DCA 2015), the Fourth District Court of Appeal conducted certiorari review of a lower court order compelling the discovery of photographs from a personal injury plaintiff’s Facebook account. In the underlying suit, the plaintiff claimed she slipped and fell on a foreign substance on the floor of a Target store. Following the plaintiff’s deposition, Target sought production of photographs from the plaintiff’s Facebook page, alleging that it was entitled to view her profile, as her lawsuit placed her physical and mental condition at issue. The plaintiff responded by asserting that disclosure violated her reasonable expectation of privacy and contended that Target’s motion amounted to a fishing expedition. Target narrowed down its requests, and the plaintiff raised objections, including relevance. The trial court ordered the plaintiff to provide copies or screenshots of all of the photographs associated with her social networking account for two years prior to the alleged fall. The appellate court rejected the privacy claims, finding that social networking site content is neither privileged nor protected and found that the discovery order was narrowly tailored in scope, thus, reasonably calculated to lead to admissible evidence relating to the plaintiff’s physical condition.11 T hus, the holding in Nucci supports the position that a personal injury plaintiff has no privacy interest in social media content and discovery of the same is relevant to prove or disprove injury.
Finally, in Antico v. Sindt Trucking, Inc., 148 So. 3d 163 (Fla. 1st DCA 2014), the First District Court of Appeals exercised certiorari jurisdiction to review a lower court order granting a defendant in a wrongful death suit, arising out of a fatal automobile accident, access to the decedent’s cellular telephone. The defendant, below, had sought to allow its expert to analyze the decedent’s phone in order to demonstrate whether the decedent had been using her telephone at the time of the accident, specifically alleging:
“With GPS enabled phones, such as [the decedent’s] iPhone, there is a very high probability that if the GPS feature were enabled, we can look at the data and figure out conclusively what happened in the moments leading up to the accident, i.e., whether she stopped at the stop sign or not and whether she was texting, Facebooking, Tweeting, or nothing at the time of the accident.”12
The administrator of the decedent’s estate objected to inspection, citing privacy rights under the Florida Constitution. In determining whether the examination should be permitted, the appellate court noted, “It’s long been true that ‘[t]he more relevant and necessary the desired information is to a resolution of the case, the greater the state’s interest in allowing discovery of the information.’”13 Balancing privacy interests with the need for disclosure, the court concluded that the information sought was reasonably calculated to lead to admissible evidence and that the trial court order was narrowly tailored, thus, certiorari was ultimately denied.
In consideration of these three decisions, one seeking disclosure of social media data should first address the threshold issue of whether the data has bearing on material issues in the case. Areas of relevance may include the location of a tortfeasor, as evidenced by social media “check in,” geotag, or GPS, use of social media at the time of a catastrophic event, giving rise to fault or comparative fault, evidence of injury, or lack thereof, social affiliation, use of stimulants, or bias. After relevance has been identified, any order compelling disclosure should be narrowly tailored to permit dissemination of only that articulated to have bearing on material issues.
Authentication
After relevance has been properly demonstrated, the proponent of digital evidence must next establish authenticity. Under Florida law “[e]vidence is authenticated when prima facie evidence is introduced to prove that the proffered evidence is authentic.”14 & #x201c;The authentication of social media poses unique issues regarding what is required to make a prima facie showing that the matter is what the proponent claims.”15 I t stands to reason that one can easily impersonate another for the purpose of opening a social media account. Thus, to prove authorship, it is necessary to present evidence beyond simply identifying the name appearing on a social media account.16
While o nly slight confirming circumstances are necessary to prove authentication, contrary evidence can be offered to diminish the weight of any digital evidence. 17 T hus, in the absence of a specific rule of evidence governing the admissibility of electronic correspondence, entries, or pages must be authenticated through proper foundation. There are three recognized methods for authenticating a piece of electronic evidence: 1) a witness with firsthand knowledge; 2) extrinsic evidence; and 3) the silent witness theory.
• Firsthand Knowledge — The first method of authentication is timeless and elementary. The proponent produces a witness with firsthand knowledge of the creation of a social media post. The proponent may elicit testimony from the author of the post that he or she created the post. Likewise, the proponent may produce another witness who saw the author create the post, thus, possesses direct knowledge of authorship.18
Although a multitude of Florida appellate cases address the relevance of social media posts, the federal courts have been more prolific in addressing authenticity. In U.S. v. Barnes, 803 F.3d 209 (5th Cir. 2015), the Fifth Circuit Court of Appeals considered whether the government sufficiently authenticated certain text and Facebook messages through a witness with firsthand knowledge during a drug trafficking trial. The government sought to introduce Facebook posts and text messages attributed to the defendant by presenting a witness who testified that she had seen the defendant use Facebook, recognized his Facebook account, and that the Facebook messages “matched his method of communicating.”19 T he witness also testified the defendant would send text messages from his cell phone, she had spoken to him on the phone number that was the source of the texts, and the contents indicated that he had authored the texts.20 T he defendant disputed authenticity. The court noted that
“
[t]he standard for authentication is not a burdensome one,
” and concluded “conclusive proof of authenticity is not required for the admission of disputed evidence.”21 Finding that the judge was merely charged with determining sufficient foundation and the jury bore the penultimate responsibility of evaluating the reliability of the evidence, the lower court ruling was affirmed. Barnes stands for the proposition that the proponent of digital evidence does not need to present a witness who saw the digital evidence penned. Instead, the witness may discuss having seen prior postings by the author to the account at issue and stylistic and content cues indicating authorship.
• Extrinsic Evidence — In the absence of a witness with firsthand knowledge, the proponent of digital evidence may rely upon extrinsic evidence to establish authenticity. Some practitioners may contend that digital evidence is self-authenticating. Sections 90.803 and 90.902 of the Florida Evidence Code allow for the admissibility of self-authenticating business records upon presentation of a sufficient custodian of records affidavit. Florida courts have allowed the entry of some
electronic records into evidence based upon these provisions.22 However, social media presents unique hurdles to authentication.
In order to effectively use extrinsic evidence in proving authenticity, it is important to distill the manner in which social media posts are created. Social media posts differ from traditional business records in that they are created by the personal “user,” or his or her “friends,” as opposed to an employee or other designate of an entity. Thus, a practitioner must determine whether she intends to admit evidence to demonstrate authorship or for another purpose. If the purpose of introduction is the latter, the use of records from the hosting platform may be sufficient to establish authenticity. For example, Facebook records may confirm that a post was publicly available. Similarly, they may attest that the post was viewed by 200 people or that the post was made at 9 a.m. EST. Under these circumstances, the information sought was captured by the hosting entity, authorship is irrelevant, and no corroboration of the records combined with a custodian affidavit is necessary.
The analysis differs significantly if authorship is disputed. Although Facebook, Google, Yahoo, or some other hosting platform may provide records to a subpoenaing party, the responding entity did not create the posts promulgated for admission into evidence.
Thus, in order to prove the evidence is what it purports to be, the proponent of the evidence must endeavor to link the digital evidence to its author.23
The issue of authenticating social media posts to demonstrate authorship was squarely addressed by the Fourth Circuit Court of Appeals in United States v. Hassan, 742 F.3d 104 (4th Cir. 2014). There the court considered whether screenshots of Facebook pages depicting commentary and links to YouTube videos were properly admitted against two defendants in a terrorism trial. The lower court concluded that the presentation of a records custodian affidavit was sufficient to render the screenshots self-authenticated business records under the Fed. R. Evid. 902, mirrored by F.S. §90.902. Noting that the affidavit of the custodian complied with the requirements imposed under the federal rules, and that the prosecution had further tracked the Facebook pages and Facebook accounts to the defendants’ mailing and email addresses via internet protocol (IP) addresses, the appellate court concluded that the combination of testimony was sufficient to prove authenticity.
The Third Circuit Court of Appeals employed a similar approach in United States v. Browne, 834 F.3d 403 (3d Cir. 2016), wherein the prosecution in a child pornography case sought a determination that certain Facebook posts were self-authenticating. The lower court was presented with an affidavit from the website’s records custodian. Determining that the records were self-authenticating business records, the trial judge admitted Facebook chat logs into evidence. The appellate court determined that the records were not self-authenticating because although the affidavit established communication occurred between the various Facebook accounts, the prosecution was still required to introduce enough evidence that the jury could reasonably find that the defendant and his victims authored the Facebook messages at issue.24 T he court then analyzed the existing record to determine if there was sufficient evidence to justify the authentication of the posts.
Drawing upon the analyses employed in Hassan and Browne, and recognizing that “the authentication of electronically stored information in general requires consideration of the ways in which such data can be manipulated and corrupted,” a prudent practitioner should not only obtain a custodian records affidavit from the hosting platform provider, but should also strive to identify independent extrinsic evidence to prove authorship identity.25 A s was discussed in Hassan, this may exist in the form of IP addresses or mailing addresses. Each time a user activates a social media account, “registration data” is input and retained. Platform hosts may record the IP address of the computer from which the account is created. Typically, an IP address will be assigned by an internet service provider, such as Comcast or AT&T, to the user for a specific time and date range . As such, a subpoena served upon the ISP will yield the user’s account information associated with the IP address for the requested date range. Moreover, a hosting platform provider may retain additional information, including the user’s name, phone number, and recovery email address. A provider may record the dates, times, and IP addresses each time a user logs in.26
Considered in isolation, such information is not dispositive of authenticity. Nonetheless, as fully explored in Browne, each piece of information, including IP address, user information, registration information, the location from which posts were initiated, concessions as to authorship, and circumstantial evidence relating to previous drafts may be utilized, in combination with hosting platform provider records to satisfy the requisite standard of admissibility.
• The “Silent Witness” Theory — The final methodology for authentication of social media posts is the “silent witness” theory. Under the “silent witness” theory, evidence may be authenticated upon a presentation of proof of the reliability of the process that produced the evidence.27 F or example, a digital photograph may be admitted into evidence upon a showing of installation and view of the camera.28 Moreover, a piece of evidence may itself reflect sufficient indicia of reliability for authentication.29
In United States v. Thomas, No. 16-1592 (6th Cir. June 30, 2017), the Sixth Circuit Court of Appeals reviewed a lower court decision admitting Facebook and Instagram photographs against a defendant charged with armed robbery, absent witness testimony that the photographs depicted the defendant. The robber was wearing a Detroit Tigers hat. At trial, two law enforcement officers testified that they searched for social media accounts under the defendant’s name. Instagram and Facebook accounts were located. The user profiles reflected that the defendant was employed two miles away from the robbery location. Moreover, photographs, purported depicting the defendant in Detroit Tigers garb, were recovered from the social media sites. The photographs were introduced into evidence to demonstrate identity, including affinity for the Detroit Tigers. The appellate court concluded the photographs were properly admitted because the content of the photographs had independent significance that could be properly evaluated by the trier of fact.
Thus, all three methods, firsthand knowledge, extrinsic evidence, and the “silent witness” theory, rest upon demonstrating indicia of reliability, and often are not mutually exclusive. Most effective for the practitioner is to present all evidence of authentication that may be derived, so as to support admissibility and protect the appellate record.
Hearsay
The final hurdle to admissibility is the satisfaction of a hearsay exception. As with the prior analyses relating to relevance and authenticity, the proponent must determine the purpose of the evidence. Some digital evidence is not subject to hearsay analysis. Photographs and silent video mined from a social media account are not statements, thus, do not constitute hearsay. However, a photograph or video may contain a statement, requiring the application of a hearsay exception.30 Likewise, statements offered for reasons other than proving the truth asserted therein are not hearsay. A statement may be offered to show that it was viewed, not for the contents, to demonstrate notice or motive.31 Finally, those statements that are hearsay may fall into one of the enumerated exceptions contained in F.S. §90.803.
Most reported social media cases involve the admission of evidence against the author. It is well-established that statements contained within traditional correspondence constitute admissions of a party opponent, rendering such statements admissible.32 T his rationale has been extended by the courts to emails and other electronic correspondence.33 Similarly, a Facebook posting by an employee of a party could be deemed admissible as an admission of a party opponent, provided a proper foundation is established.34
In a reported administrative hearing opinion, Polk County School Board v. Coe, 2013 WL 3367400 (Fla. Div. Admin. Hrgs. 2013), involving the termination of a Polk County School Board employee, the presiding administrative law judge analyzed whether Facebook posts were properly admitted as admissions of a party opponent under Florida’s Evidence Code. A witness testified that he did a public search of the employee on Facebook, identified the employee from photographs on the social media account, and viewed comments between the employee and another school employee.35 T he comments bore reference to a student at the school.36 T he court concluded that this circumstantial evidence was sufficient to establish that the employee posted the comments, thus, the postings fell under the admission of a party opponent exception to the hearsay rule.
Likewise, in United States v. Brinson, 772 F.3d 1314 (10th Cir. 2014), the trial court admitted Facebook messages that were allegedly authored by the defendant, who was writing under a pseudonym. In considering the propriety of admitting the messages, the appellate court noted that the defendant had presented evidence that other individuals had access to the Facebook account and had previously posted messages. In considering whether the prosecution presented sufficient evidence to establish that the messages were admissions of a party opponent, the court considered five factors: 1) The account was registered to an email address reflecting the defendant’s first name; 2) the Facebook profile reflected the defendant’s first name; 3) a witness testified that the Facebook user identified himself by the defendant’s first name; 4) a phone bill on the bill of sale for the defendant’s vehicle matched the telephone number provided by the Facebook user; and 5) two witnesses testified that the Facebook username belonged to the defendant. Under these circumstances, the court concluded that one “could reasonably find by a preponderance of the evidence that [the defendant] had authored the messages.”37
The preceding decisions dictate that the proponent of social media posts must be prepared to present evidence similar to that required to establish authenticity in order to satisfy the admission of a party opponent exception to hearsay.38 Thus, many predicates of proof overlap. A thorough approach is required and all available resources should be garnered to corroborate authorship.
Conclusion
The widespread, nearly universal, use of social media platforms dictates that data mined from social media postings will be imperative to proof in a growing number of civil and criminal cases. Thus, familiarity with evidentiary standards governing the admission of electronic evidence is of paramount concern in the practice of law. Although the admission of digital evidence was not contemplated at the time many evidentiary requirements were drafted, evolving caselaw recognizes that traditional predicates may be well-utilized to support the admission of such evidence. Thus, as the bench, bar, and legislature work toward implementing evidentiary requirements narrowly tailored to address rapidly changing technology, the prudent legal practitioner will draw upon traditional predicates to support the admission of electronic evidence.
1 Number of Monthly Active Facebook Users Worldwide as of Third Quarter 2017 (in Millions), Statista, http://www.statista.com/statistics/264810/number-of-monthly-active-facebook-users-worldwide/.
2 Number of Monthly Active Instagram Users from January 2013 to September 2017 (in Millions), Statista, http://www.statista.com/statistics/253577/number-of-monthly-active-instagram-users/.
3 Sarah Frier, Snapchat User ‘Stories’ Fuel 10 Billion Daily Video Views, Bloomberg
( Apr. 28, 2016, 7:00 AM), http://www.bloomberg.com/news/articles/2016-04-28/snapchat-user-content-fuels-jump-to-10-billion-daily-video-views.
4 Number of Monthly Active WhatsApp Users Worldwide from April 2013 to February 2016 (in Millions), Statista, http://www.statista.com/statistics/260819/number-of-monthly-active-whatsapp-users/.
5 State v. Eleck, 23 A. 3d 818, 823 (Conn. App. Ct. 2011), aff’d on other grounds, 100 A. 3d 817 (Conn. 2014); see also In re F. P., 878 A. 2d 91, 95 (Pa. Super. 2005) (rejecting the need to “create a whole new body of law just to deal with [the admissibility of] e-mails or instant messages” and finding “e-mail messages and similar forms of electronic communication can be properly authenticated within the existing framework”).
6 Fla. Stat. §90.402 (2017).
7 Fla. Stat. §90.401 (2017).
8 Fla. Stat. §90.403 (2017).
9 Root, 132 So. 3d at 869-871.
10 Id. at 871.
11 Nucci, 162 So. 3d at 153-154.
12 Antico, 148 So. 3d at 167.
13 Id. (citing S. Florida Blood Serv., Inc. v. Rasmussen, 467 So. 2d 798, 803 (Fla. 3d DCA 1985)).
14 Fla. Stat. §90.901 (2016); Casamassina v. U.S. Life Ins. Co. in City of New York, 958 So. 2d 1093, 1099 (Fla. 4th DCA 2007) (citing ITT Real Estate Equities, Inc. v. Chandler Ins. Agency, Inc., 617 So. 2d 750 (Fla. 4th DCA 1993)).
15 Smith v. State, 136 So. 3d 424, 432 (Miss. 2014).
16 Rhenals v. State, 18 FLW Supp. 973 (9th Cir. 2011) (citing Commonwealth v. Purdy, 945 N.E. 2d 372, 381 (Mass. 2011)); see also Casamassina, 958 So. 2d at 1099 (“Authentication by circumstantial evidence is permissible; ‘evidence may be authenticated by appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with the circumstances.’”) (quoting ITT Real Estate Equities, Inc., 617 So. 2d at 751)).
17 United States v. Smith, 481 F.3d 259, 265 (5th Cir. 2007).
18 Martsolf v. United Airlines, Inc., Civil Action No. 13-1581, 2015 U.S. Dist. LEXIS 163611, (W.D. Pa. Dec. 7, 2015), Flynn v. Flynn, 283 Ill. 206, 215, 119 N.E. 304, 308 (1918).
19 Barnes, 803 F.3d
at 217.
20 Id.
21 Id. at 217 (quoting U.S. v. Jackson, 636 F.3d 687, 693 (5th Cir. 2011)).
22 See, e.g., Morrill v. State, 184 So. 3d 541 (Fla. 1st DCA 2015) (under business records exception to hearsay rule, affidavit from records custodian was sufficient to lay foundation for admission of records from electronic record-keeping system that tracked purchases and attempted purchases of ephedrine and related compounds, even though custodian did not have personal knowledge of every transaction; custodian attested that database was kept in the regular course of business, and entries into database were made at or near time of transactions by persons with knowledge).
23 See U.S. v. Hassan, 742 F.3d 104 (4th Cir. 2014).
24 Browne, 834 F.3d at 403.
25 Id. at 437.
26 Id. at 621, 659.
27 Wagner v. State, 707 So. 2d 827, 830 (Fla. 1st DCA 1998).
28 Id. (discussing Fisher v. State, 643 S.W.2d 571 (1982); State v. Bunting, 455 A.2d 531 (App. Div. 1983)).
29 Hannewacker v. City of Jacksonville Beach, 419 So. 2d 308, 310 (Fla. 1982).
30 See Fla. Stat. §90.802 (2017); Gayle v. State, 216 So. 3d 656, 660 (Fla. 4th DCA 2017).
31 Blackwood v. State, 777 So. 2d 399, 407 (Fla. 2000); Hodges v. State, 595 So. 2d 929 (Fla. 1992).
32 See Chacon v. State, 937 So. 2d 1177 (Fla. 3d DCA 2006) (holding that defendant’s threatening letters fell under
Fla. Stat. §90.803(18)(a) (2005), thus, were exceptions to the hearsay rule).
33 See U.S. v. Holland, 214 F. App’x 957 (11th Cir. 2007)
(holding that statements in emails constituted admissions by a party and therefore were non-hearsay); Gusmao v. State, 48 So. 3d 93 (Fla. 5th DCA 2010) (admitting statements as admissions of a party opponent).
34 Grajales v. P.R. Ports Auth., No. 09-2075 (FAB), 2014 U.S. Dist. LEXIS 36202 (D.P.R. Mar. 18, 2014).
35 Coe,
2013 WL 3367400 at fn. 4.
36 Id.
37 Brinson, 772 F.3d 1314 (citing Bourjaily v. U.S., 483 U.S. 171, 175 (1987)).
38 See also Linscheid v. Natus Medical Inc., 2015 WL 1470122 (Mar. 30, 2015).
Bronwyn Miller is a circuit court judge in the 11th Judicial Circuit. She has been a member of the bench since 2005. Prior to her appointment, she served as the training director and a Felony Division Chief at the Miami-Dade County State Attorney’s Office.
Brian Barakat is a commercial litigator in Coral Gables, and his practice focuses on corporate and partnership disputes. He formerly served as an assistant state attorney in the Economic Crimes Unit at the Miami-Dade County State Attorney’s Office.
