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By Hugh Kaplan
Oct. 7 — The fact that a social media account's profile page included an image of a defendant and some of his personal information wasn't enough to satisfy the low standard that the federal rules establish for authenticating evidence, the U.S. Court of Appeals for the Second Circuit held Oct. 3.
State and federal courts haven't fixed on a consistent approach to the authentication of evidence from social media and other Internet sources. Currently, rules committees and legislatures appear content to allow the courts to apply to Internet evidence the very general rules on authenticating more traditional documents.
Some courts have required more after expressing concern about how easy it is for someone to create an e-mail address or a social networking account that appears to be from someone else. The defendant's brief to the Second Circuit noted that some federal district courts have reasoned that the “heightened possibility for manipulation of electronically stored information, especially that found on the Internet,” calls for “greater scrutiny of foundational evidentiary requirements such as authentication.”
The Second Circuit has previously described the standard for authenticating evidence as “minimal” and “not particularly high,” and appeals courts review authentication rulings under a generous “abuse of discretion” standard. The justification for the low standard is that it allows jurors to be the ones to decide what inferences are properly drawn from evidence.
The court here overturned the defendant's conviction, but it declined to expressly adopt a heightened authentication standard for Internet evidence. “Evidence may be authenticated in many ways, and as with any piece of evidence whose authenticity is in question, the `type and quantum' of evidence necessary to authenticate a web page will always depend on context,” the court said in an opinion by Judge Debra Ann Livingston.
Judges Richard C. Wesley and Raymond J. Lohier Jr. were also on the panel.
The court refrained from saying what else the government should have provided to adequately authenticate the social media evidence in this case. It did note, however, that the government didn't present evidence as to what identity-verification measures, if any, were required by the Russian social networking site at issue in this case, VK.com.
The issues came up in a case in which prosecutors presented evidence that a phony birth certificate was sent from a particular e-mail address, firstname.lastname@example.org. The defense argued at trial that an associate created the e-mail address and sent the messages to frame the defendant.
The government was allowed to present to the jury a printout from the profile page of the Russian social networking web site, which contained a photograph of the defendant and a Skype contact with the name azmadeuz.“The mere fact that a page with Zhyltsou's name and photograph happened to exist on the Internet at the time of Special Agent Cline's testimony does not permit a reasonable conclusion that this page was created by the defendant or on his behalf.” Judge Debra Ann Livingston
Additionally, the government said that the profile page stated that the account owner had been employed at companies where the defendant had worked. The profile also stated that the owner was from Minsk, and a federal agent testified that the defendant had said he lived in Belarus.
Fed. R. Evid. 901 states that one way a litigant can demonstrate that evidence is “what the proponent claims it to be” is with the evidence's “Distinctive Characteristics,” such as “the appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.”
Here, the government didn't provide a sufficient basis from which the jury would be entitled to conclude that the profile page belonged to the defendant, the Second Circuit decided. Repeating a partial quote from one of its prior opinions, it said:
It is true that the contents or “distinctive characteristics” of a document can sometimes alone provide circumstantial evidence sufficient for authentication. But this method is generally proper when the document “deals with a matter sufficiently obscure … so that the contents of the writing were not a matter of common knowledge.”
“The mere fact that a page with [the defendant] Zhyltsou's name and photograph happened to exist on the Internet at the time of Special Agent Cline's testimony does not permit a reasonable conclusion that this page was created by the defendant or on his behalf,” the court concluded.
“It is uncontroverted that information about Zhyltsou appeared on the VK page: his name, photograph, and some details about his life consistent with [a witness] Timku's testimony about him,” it said. “But there was no evidence that Zhyltsou himself had created the page or was responsible for its contents.”
The authenticating information the government relied on “was also known by Timku and likely others, some of whom may have had reasons to create a profile page falsely attributed to the defendant,” the court said.
Tali Farhadian, of the U.S. Attorney's Office, Brooklyn, N.Y., argued for the government. Yuanchung Lee, of the Federal Defenders of New York Inc., New York, argued for the defendant.
To contact the reporter on this story: Hugh Kaplan in Washington at email@example.com
To contact the editor responsible for this story: Mike Moore at firstname.lastname@example.org
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