Pennsylvania Superior Court Establishes Authentication Standards for Social Media: Defendant’s Links to Facebook Account Insufficient
Civil Litigation Update, a publication of the Pennsylvania Bar Association
By: Erin K. Aronson, Esq.
Social media serves many distinct purposes for different people. For some, it is a benign means to share family vacation pictures or remain connected to the Class of 1975. For others, it is a forum for endless political debate. But for litigators, social media can simply be a gold mine. Increasingly, reviewing a party’s social media presence is considered one of many routine steps taken during litigation; no different than completing the conflict check, issuing a litigation hold notice, or deposing your opponent. Many litigators know the unparalleled glee of stumbling upon that perfect, incriminating picture, or the critical admission that is buried deep on an opponent party’s social media page. Too many may also know the gut-wrenching anxiety of nearly “liking” a post, or otherwise announcing their presence on an opponent party’s social media platform, while trying to remain incognito. Whether they are from Twitter, Facebook, or another platform, social media posts are increasingly playing a role in litigation, and being offered as exhibits in the courtroom.
The proliferation of social media and electronic communications is requiring our jurisprudence to evolve as well. Recently, in Commonwealth of Pennsylvania v. Mangel, Craft, 2018 WL 1322197 (Pa. Super. March. 15, 2018) (Musmanno, J.), the Pennsylvania Superior Court, as a matter of first impression, considered what showing is necessary to authenticate social media evidence, including Facebook posts and communications.
In Mangel, a graduation party went awry after a series of fights broke out, culminating in criminal charges against two defendants for the alleged aggravated assault, simple assault and harassment of the same victim. Although the victim did not see his alleged attackers, he later identified them after reviewing pictures which were posted on Facebook.
At trial, the commonwealth sought to introduce a number of screenshots of Facebook pages that the commonwealth alleged belonged to the two defendants. The trial court denied the commonwealth’s motion in limine to that effect, and the commonwealth appealed. On appeal, the Pennsylvania Superior Court affirmed the trial court’s denial of the motion, and affirmed that the commonwealth did not properly authenticate the social media content under Pennsylvania Rule of Evidence 901.
To authenticate evidence, Rule 901 requires that its proponent produce evidence to show that the item is what the proponent claims it to be. Pa.R.E. 901(a). Subsection (b) of Rule 901 provides a number of means to accomplish that task, including through the testimony of a witness with knowledge or through circumstantial evidence.
In Mangel, the court considered whether social media evidence can even be considered under the umbrella of Rule 901, or whether this relatively new form of evidence requires its own set of authentication rules. Initially, the court conceded that social media evidence presents unique authentication challenges. Citing its prior rulings in In the Interest of F.P., a Minor, 878 A.2d 91 (Pa. Super. 2005) and Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. 2011), the court acknowledged the inherent unreliability of electronic communications. For example, in In re F.P., the court considered the authentication of online instant message conversations and noted that “anybody with the right password can gain access to another’s email account and send a message ostensibly from that person.” Mangel, 2018 WL 1322197, at *5 (citing In re F.P., 878 A.2d at 95). The Koch court also noted that “establishing authorship” is inherently difficult for electronic communications, a concern which the Mangel court echoed. The court noted that social media accounts can be fabricated, accounts are routinely hacked, and email addresses are sometimes used by multiple individuals.
Notwithstanding those challenges, the court ultimately affirmed that the “existing framework of Pa.R.E. 901 and Pennsylvania case law” is sufficient, eschewing a complete overhaul of existing authority. The court likened social media evidence to documentary evidence and noted that writings can also be forged, creating similar authorship concerns. Just as Rule 901 is routinely used to authenticate documentary evidence, the court concluded that it is also applicable to social media evidence.
While the framework of Rule 901 does apply generally, Mangel counsels that particular considerations do apply to social media evidence. First, admissibility must be considered on a case-by-case basis. Next, “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.” Mangel, 2018 WL 1322197, at *6.
What type of evidence is enough to corroborate the author’s identity? In Mangel, the commonwealth attempted to authenticate the Facebook pages with the testimony of a detective who testified as an expert in computer forensics. The detective stated that one of the Facebook accounts in question included demographic information that matched that of one of the defendants. The account reported the same name, hometown, and high school of the defendant. The phone number associated with the account was owned by the defendant’s mother, and the email addresses associated with the account included portions of the defendant’s name.
None of those details, however, was sufficient. Due to the inherent authorship concerns discussed above, the court concluded that “the mere fact that an electronic communication, on its face, purports to originate from a certain person’s social networking account is generally insufficient, standing alone, to authenticate that person as the author of the communication.” Id. (citing, e.g., U.S. v. Vayner, 769 F.3d 125, 131 (2d Cir. 2014)). By comparison, the Superior Court credited United States v. Browne, 834 F.3d 403 (3d Cir. 2016), as an example of the types of evidence that can be used to authenticate social media, beyond simple demographic information. There, the evidence included testimony from participants involved in the communications; the defendant’s admission that he owned the accounts and phone number; and a certification from Facebook confirming a chain of possession. Id.
Set against the high bar of Browne, the court suggested that the commonwealth could have introduced additional evidence in Mangel. In particular, the court suggested that the commonwealth could have introduced username and password information, or dates and timestamps that linked the pages to the date of the alleged assault. Finally, content which more specifically related to the events would have been compelling.
For counsel, Mangelprovides a veritable catalog of methods to have social media evidence deemed admissible. Although Mangelinvolved the admissibility of Facebook pages, the court crafted its decision as a broader discussion of social media evidence generally, suggesting that it will apply equally to other social media platforms and electronic communications. In civil matters, counsel should factor the authenticity of social media evidence into his/her discovery planning. Although Pennsylvania courts are reluctant to permit discovery of a user’s username and password, counsel may need to obtain usernames, passwords, mobile device data and testimony from corroborating witnesses if the user does not admit to ownership and/or authorship of the electronic communications. A frank discussion with your client about his/her social media use should also figure prominently in your discovery planning. While an account holder can avoid cross examination in a criminal proceeding such as Mangel, no such safeguards are available during a civil proceeding and carefully crafted lines of questioning may result in key admissions.
The pursuit of social media evidence is not without its perils, however. Counsel and clients alike may face significant sanctions for the spoliation of posts, pictures or other evidence, so clients should be instructed to preserve all posts and electronic communications. In addition, the Stored Communications Act, 18 U.S.C. §§ 2701 et seq. (“Act”) generally prohibits the unauthorized access of electronic communications so counsel and clients should not access any account without permission. Social media platforms also sometimes invoke the Act to decline discovery requests, so careful planning may be required to obtain information directly from a provider.
While the demographic information advanced by the commonwealth appears compelling at first glance, Mangel affirms that more is required, and opines, at length, about what that might include. Although Mangel discusses Facebook pages, the court crafted its decision as a broader discussion of social media evidence generally, suggesting that it will apply equally to Twitter, Instagram, and evidence from any number of other social media platforms, as well as electronic communications. Practically, the search for corroborating evidence required by Mangel may effectively require counsel to spend even more time down the “rabbit hole” that is social media.