Not long ago, “friend” was a noun, “yelp” meant a shrill bark, “twitter” referred to a chirp, a “tumbler” was a gymnast or a glass, and “facebook,” “youtube,” and “instagram” were gibberish. Cases now rise and fall on the admissibility of Facebook profiles, Yelp reviews, Twitter tweets, YouTube videos, Instagram photos, Tumblr posts, and other social media evidence — and more conventional, but only slightly older, electronic data like text messages, emails, search engine results, and webpages (live or archived).
While the media are new, the applicable evidentiary principles are familiar and have easily adapted to them. The two overarching issues are authentication and hearsay. This article focuses on authentication beginning with the critical, and very distinct, roles of judge and jury in deciding that question. The article then turns to authentication of website data, moving from conventional webpages to social media pages. It concludes with a discussion of email, text, and social media messages.
The ultimate decision maker on the question of authentication is the finder of fact. The judge is gatekeeper, but this is not Daubert-intensive gatekeeping.
The principal authentication rule, Rule 901(a), provides that: “To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” The court makes the initial decision under Rule 104(a) whether the proponent has offered sufficient proof that a reasonable juror could find in favor of authenticity.1 If so, then, under Rule 104(b),2 the jury makes the ultimate determination as to whether the evidence is, in fact, what its proponent claims.3 “Importantly,” as the Fourth Circuit has observed, “the burden to authenticate under Rule 901 is not high . . . . [A] district court’s role is to serve as gatekeeper in assessing whether the proponent has offered a satisfactory foundation from which the jury could reasonably find that the evidence is authentic.”4“In performing its Rule 104 gate-keeping function, the trial court itself need not be persuaded that the proffered evidence is authentic. The preliminary question for the trial court to decide is simply whether the proponent of the evidence has supplied facts that are sufficient to support a reasonable jury determination that the evidence he has proffered is authentic.”5 At that point, the issue is for the jury.
In applying Rule 901 authentication standards to website evidence, there are three questions that must be answered:
It is generally sufficient, in order to make a prima facie showing of authenticity, that a witness testifies — or certifies in compliance with a statute or rule — that:
The exhibit should bear the Internet address and the date and time the webpage was accessed and the contents downloaded.7
When evaluating the proffer, the court considers whether the exhibit bears indicia of reliability, such as:
The opponent of the evidence is free to challenge it by adducing facts showing that the exhibit does not accurately reflect the contents of a website, or that those contents are not attributable to the ostensible owner of the site. There may be legitimate questions concerning the ownership of the site or attribution of statements contained on the site to the ostensible owner.8 More by way of authentication may be required of a proponent who is known to be an information technology specialist (that is, a computer geek) and is both able and motivated to modify the proffered website data.9
Three types of webpage exhibits are self-authenticating.
Government Websites. Under Rule 902(5) (Official Publications), “[a] book, pamphlet, or other publication purporting to be issued by a public authority” is self-authenticating. Rule 101(b)(6) provides that “a reference to any kind of written material or any other medium includes electronically stored information.” Hence, data on governmental websites are self-authenticating.10
As discussed below, courts regularly take judicial notice of these websites.
Newspaper & Periodical Websites. Under Rule 902(6) (Newspapers and Periodicals), “[p]rinted material purporting to be a newspaper or periodical” is self-authenticating. Coupled with Rule 101(b)(6), which expands “printed” to include electronic data, newspaper, and periodical material that appears on the web — whether or not it ever appeared in hard copy — is self-authenticating.11 As discussed below, courts regularly take judicial notice of these websites. (Note that, while the contents of articles remain subject to hearsay analysis, if an article is more than 20 years old it is not excludable as hearsay because it is an “ancient document” under Rule 803(16), seemingly leading to the conclusion that incredible tabloid articles from the early ’90s or before are admissible for their truth. Sometimes, common sense must intrude.)
Websites Certified as Business Records. Rules 902(11) and (12) render self- authenticating business (organizational) records that are certified as satisfying Rule 803(6) by “the custodian or another qualified person.” Exhibits extracted from websites that are maintained by, for, and in the ordinary course of a business or other regularly conducted activity can satisfy this rule.12
“It is not uncommon for courts to take judicial notice of factual information found on the world wide web.”13 Governmental Websites. First and foremost among the types of Internet inference that may be judicially noticed is that taken from governmental websites,14 including:
Even this rule has exceptions, however. For example, one court found that data posted on the website of a governmental entity, which was a litigant before the court, was in conflict with all other evidence (including evidence before the governmental entity that posted the data) and was insufficiently trustworthy to warrant judicial notice.19
Nongovernmental Websites. Generally, and with some notable exceptions, courts are reluctant to take judicial notice of nongovernmental websites because the Internet “contains an unlimited supply of information with varying degrees of reliability, permanence, and accessibility” and “is an open source” permitting anyone to “purchas[e] an Internet address and create a website.”20
Familiar, Frequently Noticed Websites. Nonetheless, there are many types of nongovernmental websites of which courts routinely take judicial notice, including:
Wayback Machine. Archived versions of websites as displayed on The Wayback Machine (www.archive.org) are frequently the subject of judicial notice, but this is not always the case.26 Note that it is only the contents of the archived pages that may warrant judicial notice — the dates assigned to archived pages may not apply to images linked to them, and more generally, links on archived pages may direct to the live web if the object of the old link is no longer available.25 Corporate Websites. For certain purposes, even private business websites may warrant judicial notice.26 Much may turn on the purpose for which judicial notice is taken, the nature or stage of the proceedings, whether any party contests the taking of judicial notice, whether the evidence is in the nature of a party admission, the importance to the outcome of the case of the fact to be noticed, and other variables.27
Anyone can create a Facebook or other social media page in anyone else’s name — that is, create a false identity, post a phony social media page, send pseudonymous messages. Law enforcement does this with some regularity.28 There is even instruction on the Internet in how to create a fake Facebook page.29 One person may also gain access to another’s account, which becomes easier and easier as people own more and more devices, each of which can be used to link to their social media accounts.
Courts are, therefore, circumspect in their approach to authentication of social media evidence.
Both the social media page and the particular post must be linked to the purported author.30
This can be done in a variety of ways, including:
Among the circumstantial factors that may tip the scales in favor of, or against, putting the issue to the jury for final determination are:
Evidence of social media conversations or more conventional website chats may be of interest only to the extent that the person who left a salient posting can be identified. Simply to show that a posting appears on a particular user’s webpage is insufficient to authenticate the post as one written by the account holder.32
Third-party posts, too, must be authenticated by more than the names of the purported authors reflected on the posts.33
Evidence sufficient to attribute a social media or chat room posting to a particular individual may include, for example:
The first step in authenticating an online video is to satisfy the three-part test for website evidence generally. That requires evidence that a witness accessed a particular page on a particular site (we will use YouTube as the paradigm) and reviewed what was on the page, and that a proffered video fairly and accurately reflects what the witness saw. See § II(A), supra.
A YouTube video can be authenticated circumstantially with evidence identifying the individual and items depicted, and establishing where and roughly when the video was recorded, without evidence from YouTube (Google) personnel.44 A YouTube video can be rendered self-authenticating by obtaining and proffering a Rule 902(11) or (12) certification from a Google custodian of records that the video was captured and maintained on the company’s servers in the ordinary course of business at or near the time that users post them.45 If the YouTube video is posted on a Facebook page, that certification should be accompanied by a similar Rule 902(11) certification from a Facebook custodian of records that the page was captured and maintained on Facebook servers in the ordinary course of business.46
The first step in authenticating an online review is to satisfy the three-part test for website evidence generally, which is set forth in § II(A), supra. In addition to proving that the review was posted on the site, it is often essential that it identify the author. Identification can be established circumstantially — for example, by:
The first step in authenticating an Instagram photo is to satisfy the three-part test for website evidence generally, which is set forth in § II(A), supra. Testimony from a witness that the witness downloaded a photo from Instagram and that the exhibit fairly and accurately reflects it may suffice to authenticate it.48
The mere fact that an email purports to come from someone’s email address or a text emanates from a person’s cell phone or other device typically is insufficient to authenticate a message as coming from a particular individual.49 Some methods of authenticating emails and texts are unique to the medium. For example, the “@” designation of origin in an email address has been held sufficient to self-authenticate the email as having been sent by the organization.50 Many methods of authentication, however, are the same or very similar for both emails and texts, and the authentication of either may depend on whether the relevant question is whether a particular person received an emailed or texted message or whether someone sent the message.
Whether a Particular Person Received a Message. Receipt of an email or text may be proved circumstantially with evidence that the message was sent to the email address or phone number assigned at the time to the person, and receipt is corroborated by circumstantial evidence, such as:
Whether a Particular Person Sent a Message. That a particular person sent a specific email or text may be proved circumstantially with evidence that the message was received from the email address or phone number assigned at the time to the person and receipt is corroborated by circumstantial evidence, such as:
Authentication of messages sent over a social network is, at the outset, the same as authentication of other messages. Because anyone can create a social media identity in anyone else’s name, “the 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.”72 Consequently, “[t]here must be some ‘confirming circumstances’ sufficient for a reasonable jury to find by a preponderance of the evidence that the [purported author in fact] authored the e-mails.”73 “So long as the authenticity of the proffered evidence was at least ‘within the zone of reasonable disagreement,’ the jury [i]s entitled to weigh the credibility of the witnesses and decide who was telling the truth.”74 Circumstantial indicia of authorship or receipt parallels those used for email and text messages, coupled with the indicia for social media conversations, all as discussed above.
To borrow from the Second Circuit, speaking in another context: “[A]ttempting to apply established [evidence] law in the fast-developing world of the Internet is somewhat like trying to board a moving bus.”75 So far, however, the Rules and the courts have been fully up to the challenge.