Preponderance of the Evidence for Facebook Chat Admission

In an issue of first impression, the 3rd Circuit provided an analysis for authentication and admission of social media evidence. The authentication standard is preponderance of the evidence. The case is US v. Browne (opinion filed August 25, 2016.)

Background

The case involves Tony Jefferson Browne, who used the name “Billy Button” on Facebook. Browne and Nicole Dalmida, who was 18 at the time, exchanged explicit photographs through Facebook. Later, Browne threatened to share Dalamida’s photos unless she performed a sex act on him. Browne also required Dalamida to provide him with her Facebook account’s password. Browne then used Dalamida’s account to connect with some of her friends on Facebook, all of whom were minors. He obtained explicit pictures from the minors and used those pictures to frighten the minors into sharing more pictures. He also sexually assaulted one of the minors.

Chat content between Browne and the victims was found on Browne’s phone. Upon request by the government, “Facebook provided five sets of chats and a certificate of authenticity executed by its records custodian.” The prosecution sought and the District Court allowed admission of the chat logs and the certificate as evidence. In addition to the logs and the certificate as related to the chats, Dalmida and the minors testified along with two special agents from DHS. These witnesses supported the content of the chats. Browne testified that he knew most of the minors but denied knowing one of them. He also denied sending or requesting photographs. He claimed he loaned his phone to Dalamida and a cousin during the time period of the messages.

Browne was convicted and appeals based on lack of proper authentication of the Facebook records.

Authentication Issues

Authentication of social media evidence is incredibly challenging. The reason it is challenging is because it is difficult to know who was behind the keyboard or phone and therefore who actually wrote the content. I recommend in civil cases that the opposing party ask questions to narrow down who had access to the accounts and technology from which the content was created. But, of course, in criminal cases, the defendant may well not testify or may lie on the stand about whether they created the content. Witnesses, whether in a civil or criminal case, may also choose to lie if they know that the content could prove harmful to a friend or family member.

Maryland requires relatively substantial evidence of who wrote the content. Griffin v. State, 2011 Md. LEXIS 226, 27-28 (Md. Apr. 28, 2011). I feel that this standard is too difficult. In fact, some of the opinion suggests to me that Maryland simply does not understand the issues of the technology given their expectations. Texas, on the other hand, and other states since, have acknowledged the difficulty of authentication along with the value of the evidence, and determined that it is acceptable to authenticate by providing extrinsic evidence of authorship.  State v. Bell, 882 N.E.2e (2008). This leaves it to the jury to decide, in the end, who to believe.

Social Media is Not Self-Authenticating

Facebook will not provide an employee to authenticate content. Instead, it provides a certificate and instructs lawyers to have someone who is familiar with the account and content to authenticate.  Most websites respond the same way.  Therefore, in Browne, Facebook provided a certificate and the prosecution argued the chats’ admissibility under the self-authentication rule.

For the non-lawyers reading this, self-authentication means that no external evidence is required to support the contention that the evidence “is what it is claimed to be.” In other words, to the prosecution’s way of thinking, the fact that Facebook provided a certificate and a copy of the logs is enough to prove that Browne wrote the content.

Personally, I think the notion that social media content requires no external evidence to support that it is what it claims to be is absurd. There is no way to know from logs and a certificate that the chats were written by the defendant. The 3rd circuit appellate court agrees with me as far as this notion. It writes, “At most, the records custodian employed by the social media platform can attest to the accuracy of only certain aspects of the communications exchanged over the platform, that is, confirmation that the depicted communications took place between certain Facebook accounts, on particular dates, or at particular times. This is no more sufficient to confirm the accuracy or reliability of the contents of the Facebook chats than a postal receipt would be to attest to the accuracy or reliability of the contents of the enclosed mail letter.”

In other words the chats in and of themselves are not self-authenticating. Someone must authenticate that the person alleged to have written the chats did, in fact write them. To my way of thinking, this is key. To allow such content to be held self-authenticating and to allow it to be used on that basis in court would be anathema to the cause of justice. To allow a case to turn on social media evidence, which these days it can, without any extrinsic support of its reliability is unacceptable.

Use of Extrinsic Evidence

Since Facebook chats are not self-authenticating, this means that external evidence must be used to support the notion that they are what they claim to be. In this case, this means evidence which supports that Browne wrote the chats and that the content is what is alleged. The court found that it is appropriate to, “consider a wide range of evidence for the authentication of social media evidence,” just as is appropriate for traditional documentary evidence. In discussing the issues and the type of evidence appropriate, the court refers to both the Texas and Maryland cases mentioned above, as well as several other cases addressing social media and text message evidence.

The court also  addresses the risks of false social media accounts and the ease with which someone else can write content in another person’s account. Due to these concerns, the party seeking admission of the social media evidence must lay, “a sufficient foundation to support the admission of the defendant’s Facebook messages.” In Browne, the government provided seven witnesses who supported the content of the chats as well as the notion that the defendant wrote them. In addition, there were other details which helped to link the defendant Browne with the Button Facebook account. The fact that the chat logs came directly from Facebook with the certificate did help as part of the evidence. Evidence directly from Facebook is “less likely to be subject to manipulation or inadvertent distortion” than other sources. In short, the court found that there was a, “veritable mountain of evidence linking Browne to Billy Button and the incriminating chats.”

Preponderance is Enough to Show Who Created the Chat

In the end, the court “held that a preponderance of the evidence, including testimony from federal agents and victims showed that [the] defendant” created the messages in question. As I have written both here and in the past, this is, I believe the appropriate standard. This standard allows the court to act as gatekeeper to make certain that it is likely that the person alleged to have written the content did write it, leaving the jury to make the final determination.

Hearsay

After determining that a preponderance is enough, the Court moved onto the hearsay issue. Browne argued that the Facebook chats were hearsay and should not have been admitted. The court agreed that there was one chat, “in which Browne did not participate” that was hearsay and should not have been admitted. The reason is that the chat was used to prove the truth of the matter asserted, i.e. that Browne harmed one of the victims. But the other chats were admissions by the defendant as well as used, “to put Browne’s statements ‘into perspective””. Given this, these statements were all properly admitted.  As far as the one statement which should not have been admitted, the court found that it was harmless error because there was so much evidence against Browne that he would have been convicted anyway.

Lesson on Hearsay

Based on the court’s hearsay discussion, it is important to remember to be thoughtful about what social media evidence we seek to introduce. We must remember the hearsay issues that can arise as well as the exceptions we can utilize to bring in (or keep out) such evidence.

Conclusion

When it comes to admission of social media content, it is clear that the United States is moving firmly in the direction of allowing extrinsic evidence to support authentication and admission of such evidence. Therefore, when  you seek to authenticate such evidence, make certain that you have extrinsic evidentiary support that such content was written by the person you claim to have written it, and also, seek out the appropriate logs from Facebook, when you are able to do so. Unfortunately, remember, Facebook will not cooperate in civil matters as far as content of accounts. This is likely to be an issue which will need to be addressed in the near future.