Social media evidence plays an important role in litigation. Lawyer must understand how the manner in which social media evidence is obtained and presented can play a crucial role in determining whether the evidence will be admissible or authenticated. When Fraud Intelligence magazine had questions on social media evidence, authenticity, and admissibility, they turned to social media attorney Ethan Wall for the answers. Here’s an excerpt from their interview:
“Using material found on social media as legal evidence in court is complex and continually evolving,” say Ethan Wall, an attorney at the Social Media Law Firm, who began with printouts of Facebook pages or screenshots of comments. “Initial court opinion was skeptical, raising many reasonable doubts: it’s not the actual social media page, it’s just a print out, and it could have easily been altered from its original form. Not to mention that someone can easily create a social media profile for someone else in a few minutes with just en email address, and photos or basic information collected from other sources, and then make it appear like their actual profile,” he says.
One way to authenticate social media evidence is to find someone who knows the subject personally and is able to vouch for the integrity of the material presented. Newer technologies are able to export and online page in its original computing format, making it easier for the courts to validate that this was an original and true entry and has not been doctored or changed since. How the information was discovered is important too. Just as law enforcement cannot pretend to be someone else or use trickery to secure evidence, which might not otherwise have been generated in a case (risking being judged entrapment by courts and hence being inadmissible), not can online fraud investigators. Any publicly available content is admissible. If an investigator creates a fake Facebook profile account or solicits a third party to garner information from an individual, “that could be seen as unethical and not accepted as evidence in court,” says Wall.
Ethan teaches attorneys how to use social media evidence in litigation in a manner that complies with the ethics rules. For more information, check out his programs for social evidence media for lawyers. This interview was first published in Fraud Intelligence magazine.