The rise of social media triggers a new suite of evidentiary issues come trial time, with authentication as the foundational question.
Just as the internet has changed the world—and litigation—so has social media. In a world dominated by influencers, e-marketing, and online messaging, social media takes center stage. Thus, it is no surprise that social media is taking center stage in litigation too. As attorneys, the rise of social media triggers a new suite of evidentiary issues come trial time. Authentication is the foundational question—how can attorneys show that evidence pulled from Twitter, TikTok, Instagram, or other social media is what it purports to be?
A recent Eighth Circuit Court of Appeals case, United States v. Perez, 61 F.4th 623 (8th Cir. 2023), offers some guidance. In Perez, the Eighth Circuit observed that “authentication of social media evidence presents some special challenges” because of how easily one can falsify an account. Unlike business records, a certification from the social media platform (i.e., the records custodian, like Twitter, Inc.) is often not enough to authenticate the evidence. That being the case, a party must either have the account owner verify the account or present circumstantial evidence that adequately links a particular person to the social media account or particular posts.
In Perez, the government sought to use circumstantial evidence to tie the defendant to a social media account. The government tied the defendant to his purported social media account in various ways. First, the government connected him to a broadband account and Gmail address matching his personal biographical information (i.e., first and last name, home address, date of birth, and phone number). Second, the government linked him to a specific IP address, which was also associated with his broadband and Gmail accounts. Third, the government offered evidence showing, among other things, that the social media account in question was created using his Gmail address, that the account was regularly accessed by the IP address associated with the defendant's broadband account, and that the account contained many personal photographs of the defendant. Taken together, the court found that this evidence supplied a sufficient authentication foundation.
Perez teaches that authenticating social media evidence can be painstaking and time-consuming, and demand creative thinking. Not only is tying your user to an account challenging, but attorneys are also racing against the clock. Accounts can be deleted, altered, or scrubbed in a matter of days or even minutes. With that in mind, attorneys using social media evidence should start by collecting and preserving social media content as soon as possible. From there, attorneys should consider discovery aimed at linking someone’s social media presence to other indicia of ownership—IP addresses, email accounts, internet providers, home addresses, and so on. Other linked accounts and indicia of personal use (e.g., personal photos, commentary, and the like) can go a long way toward authenticating social media content too.
Social media evidence can be powerful. But authenticating social media presents unique challenges often requiring creative discovery requests and proactive evidentiary proffers. In short, proving social media evidence requires outside-the-box thinking, executed well before trial.
Republished with permission. This article, "Introducing Social Media Content into Evidence—Authentication Tips," was published in ABA's Practice Points, Litigation on April 12, 2023.