One of the hot button topics of the social media and family law seminar I taught today with Judge Turgeon and Attorney Sandy Meilton, was on authentication and preservation of evidence. I was asked what steps I would take to help the judge be as certain as possible that the data I am showing on a Facebook profile is an unedited version of what I saw on Facebook and is true to what I claim it to be.
Most social media sites refuse to provide content from user accounts based upon the Stored Communications Act. For details on why please see my posts here and here. Facebook claims the information taken from a Facebook account can be authenticated by the owner or someone familiar with the account. The problem is, what might be on a Facebook wall the first time an attorney or investigator looks at it might not be what is on the wall the day counsel stands before the judge. So many attorneys, wisely, wish to preserve a record of what the Facebook wall looked like at the time she found the evidence harmful to the opposing client’s case. Most attorneys simply take a pdf or a screenshot of the wall and call it done. This might work with some judges, and according to Facebook should be acceptable as long as someone authenticates the account. Judge Turgeon mentioned that most of the time, when asked, “did you post this?” most witnesses in her courtroom have been honest and admitted responsibility for the post. But this won’t always be the case.
I like to actually take two steps when I am securing information from a Facebook wall. Especially if the case seems very acrimonious, or it is likely someone will delete information, lie or both. I use an application such as GoToMeeting or CamStudio or any of numerous programs that will capture both image and sound of what I am doing on my computer. This way I can speak and explain what I am doing as I am doing it. I also will take a screenshot of the wall with a program like SnagIt and/or save the wall to a pdf with something like Adobe Acrobat. I then can put everything on a USB drive and send it to the attorney who can print these items out and bring them to court. Then, if it becomes necessary, I can go to court myself and authenticate what I did, show how I recorded the process, and hopefully give the Judge a good comfort level with the data. Is it absolutely impossible that the data wasn’t altered? Well, no, nothing is impossible. But I have at least taken every step I can to show the Judge the data wasn’t altered and preserved the process I use while I am reviewing a site for information.
Here is a video where I take you through my process. I’d be very interested in hearing what other people do.
Click full page to see a larger video. You may also access the video here.