MySpace on the record
First Monday

MySpace on the record: The admissibility of social website content under the Federal Rules of Evidence by Stacey Schesser



Abstract
With the increased reliance on technology in everyday life — including business, recreation, and culture — individuals leave traces of criminal activity on their computers, and now, online. As scholars address the U.S. Fourth Amendment and digital search and seizure issues, questions as to the admissibility of such acquired evidence begin to emerge. This paper explores the issues that both prosecutors and defense counsel face in determining whether digital evidence from Internet-based sources, primarily social networks, should be admitting under the Federal Rules of Evidence. Using an analysis of recent case law involving the admissibility of electronic evidence, the paper concludes with predictions on how these precedents would apply to social network Web sites like MySpace, Craigslist, personal blogs, and eBay.

Contents

Introduction
An overview of admissibility under the Federal Rules of Evidence
The admissibility of electronic evidence
Conclusion

 


 

Introduction

There are currently 54 million users on MySpace, with 19 percent of its monthly users under the age of 19 years old [1]. Technorati, the self-proclaimed authority on “what’s going on in the world of weblogs,” tracks 38.7 million sites and 2.4 billion links [2]. According to the Pew Internet and American Life Project, nearly 87 percent of those aged 12-19 use the Internet and are “more likely than older users to send and receive instant messages, play online games, create blogs, download music, and search for school information.” [3] One in five maintain a blog or personal Web page, sharing their personal stories, photographs and videos [4]. The Internet undoubtedly provides a new vehicle for social connection and networking, linking people together based on common interests and without heed to geographic limitations. Yet despite these benefits, the Internet has also become a vehicle for sexual predators and criminals to meet their next victims.

Law enforcement has increasingly come to rely on social networking Web sites and electronic evidence in their investigations [5]. Lieutenant Cary Marks, head of South Florida’s task force for Internet Crimes Against Children (ICAC), noted, “Before, [a predator] would have to find a lot of information by chatting with [potential victims] for a long time. Now they can just go check out their information on MySpace.com.” [6] Detailed profiles, some including a young person’s full name, age, detailed location, cellphone numbers, and other personal identifying location, can potentially lead a sexual predator directly to his or her victim. Data collected online can reveal the extent of a suspect’s interactions with his/her victim and provide useful information for law enforcement investigations. Consequently, it is important to consider the prosecutorial utility of the data and information collected from these types of investigations and searches of computer files, and whether this electronic evidence be admissible at trial.

Consider the following scenarios.

Scenario 1: Natalie and Paul on MySpace
A 14-year old girl named Natalie creates a MySpace account with pictures that feature her in highly sexualized clothing and positions. She also writes a blog on MySpace where she discusses a variety of adolescent issues, such as her daily rants against her curfew, a crush on the quarterback, and the newest fashion craze. In branching out her social network, Natalie meets Paul and he becomes one of her friends on MySpace. They post messages to one another about their sexual desires and intentions with one another, and about plans to meet. Natalie posts to her social network that she is meeting Paul on Monday and soon thereafter disappears. Natalie’s body is found a few days later in a forest by her house and shows signs that she was raped and murdered. Police collect substantial DNA evidence to charge Paul with the crime. Can the content on Natalie’s MySpace page be used against Paul in trial?

Scenario 2: Che’s Blog
CorporationX manufactures children’s toys. Their new line of “Funsters” has recently been recalled because Funsters were found to contain toxic chemicals that have hospitalized several children. One of CorporationX’s employees, Che, maintains a personal blog through Blogger. He posts nearly everyday a variety of subjects ranging from music to politics, and even some “The Office”-like posts about his job with CorporationX. A few months before the recall, Che posted some incriminating statements regarding CorporationX’s knowledge of the Funsters’ toxicity levels. Can private citizens suing under a products liability claim use Che’s blog posts in their suit against CorporationX?

Scenario 3: Pearl’s Business on eBay and Craigslist
Pearl makes her living by fencing stolen property online. She has done well and has moved from selling stolen CDs and DVDs to bigger ticket items, including Bose stereo systems, digital camcorders, and even Apple computers. Pearl uses both eBay and Craigslist, but prefers eBay because of its seller feedback ratings and the ease of PayPal. After selling over US$500,000 in stolen property, the Nita City District Attorney files criminal charges and begins to investigate Pearl. Can Nita City use the postings from Craigslist and the auction listings from eBay to prove all the elements in the crime?

These fictional scenarios are not far from reality. In March, authorities reported the first federal sex cases involving MySpace.com. Two men used MySpace accounts to arrange sexual encounters with underage girls [7]. In one case, a 22-year old man traveled from New Jersey to Connecticut to molest an 11-year-old girl while her parents slept upstairs [8]. In another case, Stephen Letavac, 39 years old, molested a 14-year old Connecticut girl in his car [9]. In the latter case, the FBI reported that Letavac wrote an e-mail found in the victim’s school locker with comments like “I showed you what love is and how it feels,” and “I want to show you how making love feels too, not just sex because there is a difference.” [10] The FBI reported that the victim signed onto MySpace as an 18-year old, but told Levatec she was 14 before he visited [11].

Notably, third-party Internet service providers (ISPs) and law enforcement are cooperating in building criminal prosecutions against offenders. For example, in response to the sexual assaults above, MySpace publicly released the following statement: “While we cannot comment on specific investigations, MySpace works with law enforcement at every level and fully supports the arrest and prosecution of those individuals found guilty of criminal offenses.” [12] As recently as February 2006, the social networking site announced their intention to hire a safety czar, according to the Wall Street Journal. “The safety czar will start an educational campaign by sending letters to schools as well as circulating public service announcements to discourage children from disclosing contact information within their profiles.” [13]

Open discussion boards, blog postings, and other forms online expression or communication (chat rooms, bulletin boards, etc.) may also provide helpful leads for law enforcement efforts. Consider an incident in Fort Lauderdale, where local police were able to track a group of young men who roamed the streets, beating up three homeless men, killing one, after observing an open chat on a local street-racing Web site [14]:

Nxeclipse: the kids that did it went to my school
Notchcrazy: who were they?
Vedubgolf: watch the video ... that sick idk but they look like someone i know
Notchcrazy: i heard the other is tom daugherty, i think he lived like a block away from me
WannabeSS: dude I played hockey with him for like 5 years, i just saw him on friday, i CANT believe this s*** i dont even know what to say, im in shock
MauiG20: Pathetic ... Puny skinny white kids beating on homeless people
WannabeSS: It was them, I just found out from brian’s sister, tom is her BF, so her brother and BF are going to jail. i can’t believe they are so stupid. They are on the run now, they said they were going camping when all of this happened. No one has seen them since.

With the increased reliance on technology in everyday life — including business, recreation, and culture — individuals leave traces of criminal activity on their computers, and now, online. Legal questions implicating the Fourth Amendment and digital search and seizure continue to grow [15], raising questions as to the admissibility of such evidence. After all, in many cases, even if evidence is accumulated against a suspect, it may be inconsequential if it becomes inadmissible at trial. This paper will therefore discuss the issues that both prosecutors and defense counsel face in determining whether digital evidence from Internet-based sources, primarily social networks, should be admitted under the Federal Rules of Evidence.

In the next section of this paper, I will discuss the relevant sections of the Federal Rules of Evidence, with particular attention to the hearsay rule and related exceptions. In discussing hearsay objections to social Web sites, I will provide a foundation to address additional procedural hurdles to admitting evidence, including authentication. Later in this paper, I will discuss in greater detail the case law involving the admissibility of electronic evidence, particularly Internet sources from social network Web sites like MySpace, Craig’s List, personal blogs, and eBay where relevant. This section will also apply existing case law to the scenarios described in this part if the paper, and offer my predictions on how a court would adjudicate similar claims.

 

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An overview of admissibility under the Federal rules of evidence

a. Three Steps of Admissibility
In order to successfully admit any piece of evidence — electronic or otherwise — a party must overcome three obstacles: (1) authentication; (2) hearsay; and, (3) the best evidence rule.

i. Authentication
Federal Rule of Evidence 901(a) requires that evidence be authenticated before a trier of fact will be permitted to consider the evidence. Authentication derives from conditional relevance in that the proponent must show that “the evidence is what [the] party claims it to be,” otherwise it is irrelevant [16]. The test for authenticity is relatively low in that the proponent must present “evidence sufficient to support a finding that the matter in question is what its proponent claims.” [17] For example, a proponent may authenticate a handwriting sample by recognizing a familiarity with the handwriting of another person on the basis of “seeing him write, by exchanging correspondence, or by other means.” [18] To provide another example, a document may be authenticated based on “appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances can provide sufficient indicia of reliability to permit a finding that it is authentic.” [19]

In 1972, the Federal Rules Advisory Committee recognized that “The familiar ancient document rule of the common law is extended to include data stored electronically or by other similar means.” [20] Consequently, the standard for authenticating electronic evidence is substantially the same as authenticating other types of physical evidence such as documents or handwriting as aforementioned [21]. Authentication will usually take the form of testimony by an individual with direct knowledge that the produced evidence is what it purports to be under Federal Rule 901(b). Accordingly, a witness who testifies on the authenticity of electronic evidence does not need to present any special qualifications or expertise on the programming or technical operation of the program, but merely requires first-hand knowledge of the program or technology presented [22]. Although this places a burden on the party wishing to introduce electronic evidence to find someone who can testify to the operation of the technology involved, the Federal Rules are open to providing a mechanism for the authentication of electronic evidence.

ii. Hearsay
Both the common law and the Federal Rules of Evidence include a definition of hearsay to the effect of an out-of-court statement offered in court to prove the truth of the mattered asserted. Hearsay grew out of a preference for live, sworn testimony in order to assess the perception, memory, narration, and sincerity of the witness through oath, personal presence at trial, and cross-examination [23]. Reliability is a key motivation for the hearsay rule, based on the potential for these out-of-court statements to misrepresent the truth and improperly influence the trial outcome [24].

The definition of hearsay includes several key components that are critical to the forthcoming discussion of this paper. According to Federal Rule of Evidence 801, “a ‘statement’ is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.” [25] Similarly, “a ‘declarant’ is a person who makes a statement.” [26] By clearly defining the scope of hearsay, the Rules exclude certain types of statements, including a dog’s bark and other non-person information. The distinction to draw here is that “by definition, an assertion cannot contain hearsay if it was not made by a human person,” including a computer or electronic machine [27].

For example, evidence can be admitted as a Party-Opponent Admission under Federal Rule 801(d)(2). Although often grouped as an “exception,” the Federal Rules of Evidence determine that an admission by a party-opponent is admissible as “non-hearsay.” [28] According to the Advisory Committee to the Rules, admissions do not qualify as hearsay simply because fairness requires a party to take responsibility for something that he or she said, and therefore, a party cannot claim that the statement is untrustworthy [29]. Instead, the party who made the admission now has the burden of explaining to the trier of facts (judge or jury) why the statement is unreliable [30]. In addition, a party cannot offer its own admission — it must only be offered by the party-opponent at the time of trial. Finally, a party’s admission does not have to be made against the party’s interests [31].

The Federal Rules of Evidence provide several exceptions that allow in evidence that may be defined as hearsay or include statements that are hearsay, but contain “comparable [equivalent] circumstantial guarantees of trustworthiness.” [32] These exceptions range from injury and medical reports to dying declarations. The theory behind most exceptions rests on the notion that in these situations, self-interest tends to reflect the declarant’s honesty [33]. For example, Federal Rule of Evidence 803(6) reads:

“A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” [34]

The relevant sections of this Rule for purposes of this paper is that it includes “data compilation,” which courts have interpreted as applying to computer-generated records. The rationale for this exception is that (1) individuals have a motive to be accurate for the sake of maintaining their business; (2) that such regularity breeds habits of precision; and, (3) that systematic checking is likely [35]. However, in order to qualify for the exception, the record must be maintained “in the regular practice of the business activity,” and its validity certified by the “custodian or other qualified witness.”

iii. Best Evidence Rule
Certain physical evidence may be held inadmissible by the Best Evidence Rule. When a party seeks to prove the contents of a writing, recording or photograph, Federal Evidence Rule 1002 requires that the original is produced [36].

Under the definitions in the Federal Rules of Evidence, electronic evidence is implicated because “writings” and “recordings” include “letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.” [37] This rule intersects with the demands of Rule 1003’s permission of duplicates, in that it reads, “If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an ‘original.’” [38]

 

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The admissibility of electronic evidence

a. Authentication of Digital Evidence
The case law shows that courts were amenable to authenticating computer-generated evidence as early as 1982. In United States v. Vela, the Fifth Circuit held that “computer data compilations … should be treated as any other record of regularly conducted activity.” [39] At issue in Vela was the authentication and admissibility of computer-generated telephone bills. Since this opinion, courts have generally accepted computerized business records as they would a company’s books [40]. Since Vela, the general rule with respect to authenticity of electronic records is that inaccuracies or suspicions of alteration of the electronic record are an issue for the trier of fact to consider when weighing the evidence, not in determining its admissibility: “Absent specific evidence of tampering, allegations that computer records have been altered go to their weight, not their admissibility.” [41]

To return to the scenarios mentioned in the first part of this paper, authentication poses a significant hurdle for the prosecutor attempting to introduce evidence gleaned from a MySpace account or a personal blog posting. Although authentication is a relatively low standard, in order to prevail, a prosecutor must be able to successfully show that the content of these social postings are attributable to, connected to, and even authored by the defendant through the existence of direct or circumstantial evidence [42]. Consequently, admissibility of this evidence hinges on the proper authentication of the technology used [43].

The authenticity of digital evidence may be challenged on several grounds. A party in opposition to the introduction of such evidence may challenge the authenticity of the evidence by questioning if the evidence was altered or manipulated after they were created and raise issues relating to the chain of custody of the evidence [44]. For example, Paul may claim that an unknown individual altered the content of what the prosecution seeks to present. If a specific programming function is introduced, a party may challenge the reliability of this function. For example, with respect to the eBay scenario, the defendant may object against the reliability of eBay’s auction records on the ground that they unreliably collected data relating to the completion of auctions and sales. Finally, with respect to blogging, whether on MySpace or a personal blog page, a party may question whether the author’s identity of the post can definitively be attributed to the defendant. A defendant may argue that the blog’s account was fraudulently hacked into and the posting cannot be authenticated because it was not the words of the defendant. On the other hand, should the plaintiff or prosecution call the blogger (e.g., Che) as a witness then the blogger would be able to sufficiently authenticate the digital evidence.

In United States v. Tank, the Ninth Circuit addressed the admissibility of chat room logs, which provides an analogy for addressing the aforementioned challenges. In Tank, the government prosecuted a child pornography suspect after a search of another suspect’s computer revealed computer text files containing “recorded” chat room conversations of an Internet club that discussed, traded, and produced child pornography [45]. The other suspect (“Riva”) had deleted from his computer “nonsexual conversations and extraneous material, such as date and time stamps, to decrease the size of the text files and free space on is hard drive.” [46] Defendant Tank argued that the District Court should not admit the chat room logs into evidence because they were incomplete and they contained “undetectable ‘material alterations’” that could have been made by Riva [47]. However, the Tank court held that the prosecution made a prima facie showing of authenticity when Riva — the producer of these chat room logs — testified at the evidentiary hearing and at trial to explain “how he created the logs and stated that the printouts, which did not contain the deleted material, appeared to be an accurate representation of the chat room conversations” among member of the child pornography club [48]. Accordingly, the court held that the government met its burden because “it presented evidence sufficient to allow a reasonable juror to find that the chat room log printouts were authenticated.” [49] In fine-tuning the permissible standard for authentication, then, the court may have even expanded opportunities for authentication by introducing the objective “reasonable juror” standard.

The prosecution also established the connection between defendant Tank and the chat room logs, necessary to prove the relevancy. After the defendant admitted to using a screen name when he participated in the chats and several co-conspirators corroborated this testimony, the government established a sufficient connection to link the relevancy of the printouts to the defendant’s case, and therefore, render them admissible [50].

Tank provides important precedent for prosecutors to follow for establishing the authenticity of Internet-based sources of evidence. Even without technology safeguards like date and time stamps, the prosecution was able to meet its burden for authenticating significant content that sustained a defendant’s conviction [51]. Although as Footnote 3 of the case mentions, the Tank court did not review the chat room log printouts for issues of hearsay — possibly because they contained admissions and other non-hearsay uses — the testimony of witness Riva and corroboration of other witnesses was adequate to authenticate the evidence. Even though the defendant challenged the reliability of the programs and the facts suggested an alteration of the chat log content, the prosecution was still able to overcome the relatively low burden to warrant a finding that the records were trustworthy enough to be admitted [52].

Applying this low standard to MySpace and blog scenarios above, it would be relatively easy to authenticate these types of Web sites. Witnesses who had seen Natalie’s MySpace Web site could testify to its existence and that it is what the prosecutor claimed it to be. Che could be called to authenticate his own blogging Web site, and Pearl could testify to the Craigslist posting. At the top of the chain, Web site administrators could also authenticate each piece of evidence. Given the standard of a “reasonable juror” and the low hurdle for authentication, the real challenge for both sides is in debating the weight of the evidence, or convincing the trier of fact that there are specific identifying aspects to each exhibit, such as unique authorship or even IP address. Consequently, such specific corroborating details or first-hand witness testimony could lead a trier of fact to conclude that the evidence is properly authenticated.

Finally, Perfect 10, Inc. v. Cybernet Ventures provides guidance for a prima facie case to admit exhibits printed from the Internet directly [53]. In this case, plaintiff Perfect 10 magazine alleged that defendant Cybernet Ventures, Inc. violated its trademark rights and engaged in unfair business practices by running a Web-based age verification service called “Adult Check.” The opinion by the court was in review of Perfect 10’s request for a preliminary injunction. In support of its motion, Perfect 10 submitted 117 exhibits attached to declarations, to which Cybernet objected to given that the majority of the exhibits were printed off the Internet and therefore raised questions of authentication [54].

In determining whether to admit the exhibits and declarations, the court relied on the rationale and holding in Tank to find that the plaintiff’s declarations established a prima facie case for admissibility [55]. Specifically, the evidence at issue included the Internet domain addresses and the date on which the evidence was printed, providing circumstantial evidence of authenticity [56]. In applying the “reasonable juror” standard, the Perfect 10 court held that the evidence supported what Perfect 10 claimed them to be [57]. Furthermore, “the computer printouts are the only practical method by which the allegations of the complaint can be brought before the Court.” Perfect 10’s printouts, supported by declarations, met their burden for admissibility [58].

Both Tank and Perfect 10 indicate that testimony (or declarations) alone can establish authenticity, which can be further substantiated (but does not have to be) with technological markers, including date and time stamps and domain addresses [59]. In crafting the standard for authentication so broadly, it appears that unless the opposing party can prove specific tampering, the evidence will overcome the first hurdle of admissibility [60].

Authenticating business records is even easier, given the holding in Vela. However, if the business record is supplied by a third party ISP, such as eBay or Craigslist, the prosecution may face an additional practical (and potentially costly) burden of relying on the testimony and in-court appearances of representatives of these businesses [61]. Furthermore, a court has not addressed the scenario in which the prosecution has to authenticate the circumstantial evidence of a third party’s business records, such as whether a prosecutor could use Blogger.com’s records of Che’s blog entries. In United States v. Jackson, the court explicitly stated, “The fact that the Internet service providers may be able to retrieve information that its customers posted or e-mail that its customers sent does not turn that material into a business record of the Internet service provider.” [62] Relying on this precedent, defense counsel could argue that the business records of the ISP are irrelevant to the substance of what Che posted online and therefore cannot be properly authenticated. Consequently, this can be a crucial moment in a legal proceeding for determining whether a blog posting can be properly authenticated and deemed evidence on the record.

Even if there is a strong defense based on United States v. Jackson, prosecutors may show that a business record is relevant to the behavior of their client or patron, and therefore should be tested for authentication [63]. For example, if a representative from eBay can testify as to how their business records are maintained and how their records reflect the selling conduct of a participating user, a court may find that the evidence of eBay’s third party business records are authenticated. Given that eBay and other auctions sites impose a fee or trace user account activity, the records tracking these fees may provide a reasonable assumption that an eBay user was using the Web sites in the course of their own business. It may be possible, then that a court would reject the Jackson approach and find the evidence sufficiently genuine.

Even if a prosecutor secures an individual who can testify based on first-hand knowledge and the court accepts this witness testimony, the defendant may still be able to invalidate authentication if they can raise concerns on the reliability of the third party service provider in handling the records of the digital evidence. For example, in United States v. Whitaker, although the court held the government had properly laid the foundation for the computer records after testimony by an FBI special agent, they hinted at avenues the defense could have taken to invalidate the agent’s authentication [64]. After noting the records were properly retrieved, the Whitaker court wrote, “on cross-examination, the defense did not ask [the FBI agent] any questions about how the disks were formatted, what type of computer was used, or any other questions of a technical nature.” [65] Although this relates to evidence stored on a computer, it suggests a mechanism by which defense counsel can attack the reliability of how the data was compiled or retrieved, and even later handed over to the prosecution [66]. Should the defense be able to prove to a trier of fact that the records are not trustworthy and the government cannot properly attest to the authenticity of the evidence, it may be possible to successfully block the introduction of third party-based digital evidence.

b. Hearsay Objections to Digital Evidence
If authentication is a low hurdle to admissibility, hearsay is a high one with respect to social network Web sites. The majority of content on social Web sites — whether a MySpace page, Craigslist posting, or blog entry — qualify as out-of-court statements that the prosecution may try to introduce to prove the truth of the matter asserted. As mentioned earlier in this paper, this is different from admitting records solely created by the internal operations of a computer, such as information regarding when files are saved, renamed, or programs created [67]. Rather, the issue here is how to admit evidence that is entirely human-produced and vulnerable to the dangers that hearsay tries to prevent, namely a misrepresentation of a fact or occurrence that is made without a declarant under oath and without the test of cross-examination.

The courts have reviewed several cases in which Internet postings were not admitted because they constitute hearsay. For example, in Sony Computer Entertainment, Inc. v. Connectix Corp., defendant Connectix tried to admit documents downloaded from the Internet that contained favorable anonymous postings to prove that reviewers had a positive experience with the product at issue [68]. The court held that these documents were inadmissible as hearsay, noting that some of these documents did not have an identified author, while others raised relevancy issues [69]. Similarly, in United States v. Jackson, the defendant tried to introduce Web site postings of alleged white supremacist groups that she claimed would prove they were involved with the crimes with which she was charged [70]. However, the court kept this evidence out on the grounds that it was prejudicial, irrelevant, hearsay and lacked foundation [71].

i. Non-hearsay Use: Admissions
Statements from social Web sites may qualify as a non-hearsay use, such as an Admission by a Party-Opponent under Federal Rule of Evidence 801(d)(2). According to the American Bar Association, “once a communication (letter, e-mail, Web page) is authenticated as having been created by the opposing party, it is admissible for any purpose as non-hearsay.” [72] The court has applied Federal Rule 801(d)(2) primarily in the context of admitting e-mail. Accordingly, it would make logical sense to extend this precedent to publicly available social network Web sites that are, in essence, held out as a public diary or letter to the viewing eyes of those surfing online. Statements made online that resemble an admission of any sort — serving or disserving the interest of the party-opponent — should be admissible once they pass the test of authentication.

In United States v. Siddiqui, the Eleventh Circuit held that an e-mail by the defendant was admissible as non-hearsay under Federal Rule 801(d)(2)(A) as an admission by the party’s own statement [73]. Defendant Siddiqui was an Indian citizen working at University of South Alabama and charged with falsifying a nomination for a National Science Foundation award for a US$500,000 research grant [74]. The false application included false recommendations from Japan (Dr. Yamada) and Switzerland (Dr. von Gunten) [75]. The prosecution was permitted to take the depositions of Yamada and von Gunten, which Siddiqui opposed. During her deposition, Dr. Yamada testified that she received an e-mail stating that if she received a phone call from the NSF to “please tell good words about me.” [76] Dr. Yamada knew the e-mail was from Siddiqui because the name on the e-mail had Siddiqui’s sender address, and it ended with the name “Mo” which Siddiqui had mentioned to her was his nickname, as well as used the name in a previous e-mail [77]. Dr. von Gunten testified that he received an e-mail from Siddiqui’s e-mail address asking him to tell the NSF that Siddiqui had permission to use Dr. von Gunten’s name. Dr. von Gunten replied by e-mail to that address that “he could not tell NSF anything but the truth.” [78]

Defendant Siddiqui argued that the e-mail addressed to a colleague was erroneously admitted into evidence as hearsay [79]. The Eleventh Circuit, however, wrote that the district court was properly within its discretion to deny Siddiqui’s objections to the admission of the e-mail because the e-mail sent by Siddiqui constituted an admission [80]. Although the facts reflect some procedural complexity, the court held that the foreign depositions were properly conducted and reliable, and that the e-mail were authenticated [81]. Furthermore, although the e-mail sent by Siddiqui were not a smoking gun of the sort — e.g., “I intend to falsify my application” — the electronically sent letters were admissions representing Siddiqui’s intentions.

Siddiqui provides a very strong precedent for prosecutors who want to admit admissions made on social Web sites [82]. For example, if Paul posted on his MySpace page — and potentially on Natalie’s comment area — messages to Natalie with statements including “See you soon” or “Give me a call sometime,” they may be viewed as non-hearsay admissions. These types of statements would also be admissible if they contained significant details or identifying traits — including nicknames, common references to stories or previous conversations, and unique signatures or graphics. Policy reasons also suggest that these statements should be admissible based on their public and permanent nature. In other words, by consciously deciding to type and post a comment on a publicly-accessible Web site, where anyone and everyone can view this statement, the poster indicates that he intended for other people to see the statement. Therefore, the statement should be held to its trustworthiness, as indicated by the purpose behind this non-hearsay use. Given the capacity to delete statements, particularly comments on Web sites (such as blogs), the absence of a retracted comment implicates a greater trustworthiness and assurance of admissibility.

The non-hearsay exception may also apply to Che’s blog posting regarding his company’s negligent production and distribution of Funsters. In Sea-Land Service, Inc. v. Lozen International, LLC, the Ninth Circuit held that under Rule 801(d)(2)(D), an e-mail by a party’s agent constitutes an admissible non-hearsay admission [83]. Here, a carrier filed suit against a shipper to recover money owed under a shipping contract. At issue was an internal company e-mail composed by a Sea-Land employee and forwarded to Defendant Lozen [84]. The district Court excluded the evidence on the ground that it failed to identify the employee who authored the e-mail, to which Lozen argued that the e-mail should be admitted as an admission by a party opponent under Fed. R. Evid. 801(d)(2)(D) [85]. However, Lozen pointed to the original e-mail, containing an electronic signature attesting that the author of the message was a Sea-Land representative and related to a matter within the scope of the author/employee’s employment [86]. In addition, this original e-mail was part of a forwarded e-mail by a second Sea-Land employee who copied the entire body of the first e-mail and prefaced it with the statement, “Yikes, Pls note the rail screwed us up ... .” [87]

The court held that this e-mail constituted an admission under Federal Rules 801(d)(2)B) and Federal Rules 801(d)(2)(D). The court wrote that the second author’s remark “‘manifested an adoption or belief in [the] truth’ of the information contained in the original e-mail” and was therefore an adoptive admission [88]. Furthermore, the evidence indicated that this message was composed according to her employment, with the contents within the scope of her employment with Sea-Land [89]. Therefore, the e-mail was admissible as an admission by a party’s agent under Rule 801(d)(2)(D) [90].

In analogizing Federal Rule 801(d)(2)(D) to Che’s blog, a court might hold that his statements regarding the Funsters may not be admissible. Under Sea-Land, Che’s statements would not qualify as concerning a matter within the scope of the agency or employment. An independent blog by a disgruntled employee is not the same as an e-mail sent from one employee to another and may be beyond the scope of their employment. Che’s musings and criticisms — although admissions — might not fall under this ambit of the rule.

However, Che’s blogging may qualify for admissibility under 801(d)(2)(B) or an adoptive admission. Depending on the nature of Che’s post and the detail surrounding the negligence of CorporationX in manufacturing the Funsters, a prosecutor may find that Che’s statements show that he “manifested an adoption or belief in the truth” of his blog posting. In other words, if Che posted on his blog that he saw information regarding the negligence of his company and their failure to heed warnings and posted about the nature of these decisions, his blog posting may be admissible if the party seeking to admit the statement can show that his statements reflected a belief in the truth in CorporationX’s decision-making.

In addition, what if Natalie posted on Paul’s MySpace (in the comments sections) or vice versa? Would a court treat this as a multiple layer of hearsay? Assuming the statement passed the hurdle of authentication, a court may see this as Paul saying something to Natalie that is relayed by her Web site — or — the court may see this as only one out-of-court statement: Paul’s. If the court sees it as one statement and can find reliability based on date and time stamps and perhaps matching use of Paul’s computer or his IP address, then the admissions doctrine would also apply. The statement could come in under Siddiqui if there were other guarantees of reliability — such as a signature or nickname that Paul always used. If the court viewed the statements as multiple levels of hearsay — Natalie’s statement to Paul plus Paul’s statement to “the world” — or found that it was susceptible to alteration or tampering (e.g., an imposter posting for Paul), then the statement might not provide sufficient indicia of reliability.

What if Paul posted a picture of himself on Natalie’s MySpace, or a link to a sexually explicit Web site? Arguably, prosecutors could use Perfect 10 to show that these do not qualify as statements and therefore, should be admissible as non-hearsay: “To the extent these images and text are being introduced to show the images and text found on the Web sites, they are not statements at all — and thus fell outside of the ambit of the hearsay rule.” [91] Accordingly, the court found that the asserted connection between two sites, based on the appearance of one site’s image on another’s page was enough to establish a membership relationship between the two organizations [92]. Although this may require that the court to conduct a strict case-by-case analysis of each parties’ relationships to the other, Perfect 10 could provide basis for prosecutors to argue that a suspect knew a victim — at the very least — based on the presence of their image, photo, or links on each others’ MySpace pages. Assuming that a link is not a statement or qualifies as non-verbal communication, posting of a link would substantiate this finding and could not be admitted. However, defense attorneys should be careful to exclude from any personal commentary and be vigilant about ensuring that accompanying text is separated from any of these images or links, because these statements could qualify as inadmissible hearsay.

ii. Hearsay Use: Business Records Exceptions
Content from social network Web sites may also be admissible under Federal Rule of Evidence 803(6) as a business record, which is permissible “unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” [93] For example, if the prosecution sought to introduce the fact that a user regularly logged on from a certain IP address, it may be able to use the business record of an ISP to prove that the person used that address [94]. This exception would likely not admit the content of social networking Web sites, often what the prosecution hopes to admit. Computer-generated business records would be admissible to show the business habits of a particular entity, and therefore, a court would likely conclude that this exception would not apply to the content, since the prosecution is not trying to prove anything about the truth of the social Web site’s business, and therefore such content is irrelevant. It is therefore unlikely that the prosecution could submit Pearl’s Craigslist posting as a business record because the postings fail to identify anything about Craigslist’s business (as opposed to Pearl’s illicit sales.) Even if Pearl consistently used Craigslist, it is doubtful that this qualifies as a regular business record of Craigslist under Federal Rule 803(6) since the poster retains complete control of their content under Craigslists’ Terms of Use [95].

In contrast, the prosecution could argue that eBay’s auction item records are admissible under Rule 803(6) if they could get a qualified representative from eBay to testify to the authenticity of the record [96]. It is likely that eBay retains business records of sellers for its own billing records [97]. In order to sell on eBay, a seller must pay an insertion fee to list the item, as well as a fee based on the value of the closing price [98]. Federal Rule 803(6) would then require that an eBay employee (1) authenticate the record and lay a foundation for the business record based on sufficient knowledge; (2) demonstrate how the record is kept in the course of regularly conducted business activity; and, (3) indicate how the source of information and method of preparation must be trustworthy [99]. Given that eBay relies on its records to bill its users — particularly the sellers — their records would be a reliable record made in the course of eBay’s business and could circumstantially demonstrate Pearl’s illegal sales based on the business eBay conducted with Pearl. Although eBay’s records are Internet-based business records, they may still be trustworthy based on the interest of eBay to track its users’ account activity and bill them appropriately. Similarly, it is in the Seller/User’s interest to ensure that eBay’s fee system properly accounts for their sales, or is corrected [100]. If Pearl’s user account record does not indicate any controversies between Pearl and eBay’s billing department — or indicates that Pearl paid for her insertion fees and final closing values — it is likely that this record is trustworthy for the truth it asserts and should therefore be admissible [101].

In response to this evidence, Pearl’s counsel could only argue that the record is unreliable based on the overall potential for manipulation the Internet poses (e.g., hackers, unsecure networks, etc.) [102]. An argument regarding the inaccuracy of the eBay’s records would not prevent admissibility of the evidence, but would instead go to the trier of fact to determine the weight of the evidence [103].

iii. Other exceptions
In addition to party-opponent admission and the business record exception, there are some remaining exceptions to the hearsay rule that could provide a basis for the admission of social network content. In United States v. Ferber, a District Court in Massachusetts reviewed the admissibility of an employee’s e-mail under hearsay [104]. After arguing that the e-mail should be admitted under several exceptions, the prosecution ultimately prevailed in admitting the e-mail as a “present sense impression” under Federal Rule 803(1) [105]. The e-mail was an internal Merrill Lynch e-mail message from an employee to his immediate supervisor, in which the employee recounted a conversation with Ferber in which he inculpated himself [106]. The e-mail described the conversation and suggested how Merrill Lynch might deal with Ferber’s improper actions [107]. The e-mail ended with Carey’s observation, “my mind is mush!” [108]

Should a prosecutor try to admit a blog posting or similar statement, Ferber indicates that the statement is admissible “so long as it explains an event immediately after it happens.” [109] A short amount of time will not preclude its admissibility and the statement can still qualify as an exception to the hearsay rule if it adequately describes the declarant’s impression during the earlier event [110]. This rule may be especially helpful for chat room log transcripts or reactive blog postings, which often recall the present sense impressions of the declarants. Defense attorneys should pay careful attention, however, to the lapse of time between the posting and the discussed event. In addition, depending on the post, the defense can argue that typing or writing a blog entry may be different from an e-mail because it enables the declarant to reflect on how to convey the information for the purpose of captivating his or her audience. Combined with a time lapse (and potentially information on the time required to compose the blog entry), this may not qualify as a present sense impression within the scope of 803(1).

c. Best Evidence Rule
The last hurdle in admitting digital evidence is the best evidence rule. Case law has not addressed this issue in depth, save for Perfect 10. Here, the court noted in a footnote that with respect to the images and text being introduced (discussed in Part II.b.ii infra), the printouts “are subject to the best evidence rule, Fed. R. Evid. 1001” [111] The court found that the printouts met the standards of the rule for present purposes [112].

The best evidence rule may be an issue in some cases since given the nature of file storage with many of the online social networks, the use of the original may not be cognizable, particularly if statements are embedded within HTML or code. For example, if a prosecutor was trying to admit a statement featured in colors, underlines, italics, or with spacing effects, it would require the trier of fact to sift through and translate the meaning of additional HTML markup, such as <u> or </u>, around the admissible statements. Therefore, a printout may very well be the best evidence available for both sides and sufficient to meet the test of the rule.

 

++++++++++

Conclusion

As individuals continue to look to social Web sites to build relationships and network, admitting Internet-based statements will become critical in building cases against those who use the Internet as a vehicle to commit crimes. Prosecutors and law enforcement are now looking to many third-party Web sites as part of their investigations and proving their case. Web sites in which people go to conduct business, meet and interact, trade stories and secrets now provide a wealth of information into the criminal motive, intent, and execution of a crime.

The hearsay rule will provide the crucial obstacle against unreliable or untrustworthy online statements. Given the risk of hackers, stolen identities, and unidentified postings, hearsay can be used as the first defense against admitting prejudicial statements and misrepresentations. Defense attorneys should be prepared to offer these types of arguments to prevent the admissibility of evidence and also take note of key missing technology safeguards, including date and time stamps, domain names, and other potentially exculpatory information.

Yet overall, the low bar to authentication, and an understanding of how courts interpret hearsay exceptions and non-hearsay uses will enable triers of fact to consider a wider array of evidence. Given the permanence and broad distribution of online statements, excluding them from the record may undermine notions of fairness. Therefore, erring on the side of admitting evidence and investing the trier of fact — whether jury or judge — with responsibility to determine the weight of evidence will enable critical evidence to be considered in court. End of article

 

About the author

Stacey D. Schesser is a recent graduate from University of California, Berkeley School of Law (Boalt Hall). She currently works as a Law Fellow with the San Francisco District Attorney’s Office in the High Tech Crimes Unit. While at Boalt, Stacey was both a published author with and an Executive Committee member for the California Law Review. In addition, she was involved with the Boalt Hall Women’s Association, serving as the Activism Chair and Founder of the Women’s Leadership Foundation. Prior to law school, Stacey was a grassroots organizer with the Alliance for Justice in Washington, D.C. and the Feminist Majority Foundation in Arlington, Va.

 

Notes

1. “My Space to Hire Safety Czar,” Red Herring, (17 February 2006), at http://www.redherring.com/article.aspx?a=15773, accessed 9 May 2006 (citing comScore Networks).

2. Technorati, “About Technorati,” at http://www.technorati.com/about/, accessed 9 May 2006.

3. Susannah Fox and Mary Madden, Pew Internet & American Life, “Data Memo:  Generations online,” (December 2005), at http://www.pewInternet.org/PPF/r/170/report_display.asp, accessed 9 May 2006.

4. Ibid.

5. “As a general rule, ‘electronic evidence’ can be any information created or stored in digital form whenever a computer is used to accomplish a task. As this broad definition suggests, electronic evidence may exist whenever a person enters information into a computer, a computer generates information in response to a request by an operator, or a computer uses or processes information.” Christine Sgarlata Chung and David J. Byer, “The Electronic Paper Trail: Evidentiary Obstacles to Discovery and Admission of Electronic Evidence,” 4 B.U. J. Sci. & Tech. L. 5, 8 (1998). (citing Susan E. Davis, Elementary Discovery, My Dear Watson, CAL. LAW., Mar. 1996, at 53, 53 (discussing different forms of electronic evidence)).

6. Jamie Malernee, “Looking For A Link; When Police Suspected That A Group Of Young Men Were Beating Homeless People, They Turned To The Web,” Sun-Sentinel (Fort Lauderdale, Flo.) 21 January 2006, p. 1A.

7. “Dangers in MySpace.com,” Associated Press (3 March 2006), at http://abclocal.go.com/wpvi/story? section=nation_world&id=3957377, accessed 9 May 2006.

8. “Dangers in MySpace.com,” supra note 8.

9. “Dangers in MySpace.com,” supra note 8.

10. “Dangers in MySpace.com,” supra note 8.

11. “Dangers in MySpace.com,” supra note 8. According to this article, “The site prohibits minors 13 and under from joining, discourages users from posting personal information and provides special protections for those 14 and 15.” MySpace does not have a technological infrastructure that enforces this policy, but encourages users under the age 18 to make their profiles private. “My Space to Hire Safety Czar,” supra [note 1.

12. “Dangers in MySpace.com,” supra note 8.

13. “My Space to Hire Safety Czar,” supra [note 1.

14. “Looking For A Link,” supra note 6.

15. See e.g., Orin Kerr, “Digital Evidence and the New Criminal Procedure,” 105 Colum. L. Rev. 279-318 (2005).

16. Leah Voigt Romano, “Developments in the Law: VI. Electronic Evidence and the Federal Rules,” 38 Loy. L.A. L. Rev. 1745, 1749 (Summer 2005).

17. Fed. R. Evid. 901(a). See also United States v. Simpson, 152 F.3d 1241, 1250 (10th Cir. 1998).

18. Fed. R. Evid. 901(a) advisory committee’s notes.

19. Fed. R. Evid. 901(b)(4); See also United States v. Paulino, 13 F.3d 20, 23 (1st Cir. 1994).

20. United States Department of Justice, Computer Crime and Intellectual Property Section Criminal Division, “Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations,” (July 2002), at http://www.cybercrime.gov/s&smanual2002.htm, accessed 9 May 2006 (citing Fed. R. Evid. 901(b), advisory committee’s notes) [hereinafter USDOJ].

21. USDOJ, supra note 20 (citing United States v. Vela, 673 F.2d 86, 90 (5th Cir. 1982); United States v. DeGeorgia, 420 F.2d 889, 893 n.11 (9th Cir. 1969). But see United States v. Scholle, 553 F.2d 1109, 1125 (8th Cir. 1977) (stating in dicta that “the complex nature of computer storage calls for a more comprehensive foundation”).

22. USDOJ, supra note 20 (citing United States v. Salgado, 250 F.3d 438, 453 (6th Cir. 2001) (stating that “it is not necessary that the computer programmer testify in order to authenticate computer-generated records”); United States v. Whitaker, 127 F.3d 595, 601 (7th Cir. 1997) (FBI agent who was present when the defendant’s computer was seized can authenticate seized files); United States v. Miller, 771 F.2d 1219, 1237 (9th Cir. 1985) (telephone company billing supervisor can authenticate phone company records); United States v. Moore, 923 F.2d 910, 915 (1st Cir. 1991) (head of bank’s consumer loan department can authenticate computerized loan data).

23. David A. Sklansky, Evidence 45 (2003).

24. See Ohio v. Roberts, 448 U.S. 56, 62-66 (1980).

25. Fed. R. Evid. 801 (a) (emphasis added).

26. Fed. R. Evid. 801(b) (emphasis added).

27. USDOJ, supra note 20.

28. Fed. R. Evid. 801(d)(2).

29. Fed. R. Evid. 801(d)(2) advisory committee’s note.

30. Paul R. Rice, “Electronic Evidence: Law and Practice,” A.B.A. Sec. of Litig. 269 (2005) [hereinafter Rice]. See also, Edmund M. Morgan, “Basic Problems of Evidence” 265 (1962) (“A party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of an oath.”)

31. See United States v. Bond, 87 F.3d 695 (5th Cir. 1996) (holding that it was proper to exclude the defendant’s tape that made by the defendant and offered as an admission in order to benefit himself, not as evidence of a statement made by a party used against that party).

32. Sklansky, supra note 23, at 65.

33. Ibid.

34. Fed. R. Evid.  803(6).

35. Fed. R. Evid. 803(6) advisory committee’s note. 2 McCormick on Evidence § 286 (4th ed. John W. Strong ed. 1992). Cf. “When a computer record contains only computer-generated data untouched by human hands, however, the record cannot contain hearsay. In such cases, the government must establish the authenticity of the record, but does not need to establish that a hearsay exception applies for the records to be admissible in court.” USDOJ, supra note 20.

36. Fed. R. Evid. 1002. In some cases, a “duplicate” is permitted under Fed. R. Evid. 1003 “unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.” Fed. R. Evid. 1003. Cf. St. Clair v. Johnny’s Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 775 (S.D. Tx. 1999). (“Instead of relying on the voodoo information taken from the Internet, Plaintiff must hunt for hard copy back-up documentation in admissible form from the United States Coast Guard or discover alternative information verifying what Plaintiff alleges”).

37. Fed. R. Evid. 1001(1). See also Romano, supra note 16, at 1794-95, n. 372.

38. Fed. R. Evid. 1001(3).

39. United States v. Vela, 673 F.2d 86 (5th Cir. 1982). In fact, the Fifth Circuit noted that computerized telephone bills are “even more reliable than ... average business records because they are not even touched by the hand of man.” Ibid. at 90.

40. See United States v. Catabran, 836 F.2d 453 457 (9th Cir. 1988) (“It is immaterial that the business record is maintained in a computer rather than in company books’ assuming that the proponent lays a proper foundation.”)

41. USDOJ, supra note 20 (citing United States v. Bonallo, 858 F.2d 1427, 1436 (9th Cir. 1988) (“The fact that it is possible to alter data contained in a computer is plainly insufficient to establish untrustworthiness.”); Romano, supra note 16, at 1750. This rule reflects an evolution on the court’s acceptance of Internet-produced evidence. For example, in 1999 (a mere seven years ago), a District Court in Texas wrote:

While some look to the Internet as an innovative vehicle for communication, the Court continues to warily and eerily view it largely as one large catalyst for rumor, innuendo, and misinformation. So as not to mince words, the Court reiterates that this so-called Web provides no way of verifying the authenticity of the alleged contentions ... There is no way Plaintiff can overcome the presumption that the information he discovered on the Internet is inherently untrustworthy. Anyone can put anything on the Internet. No web-site is monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation. Moreover, the Court holds no illusions that hackers can adulterate the content on any web-site from any location at any time. For these reasons, any evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretation of the hearsay exception rules found in FED. R. CIV. P. 807.
St. Clair v. Johnny’s Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 774-75 (S.D. Tx. 1999).

42. United States v. Smith, 918 F.2d 1501, 1510 (11th Cir.1990) (“the government may authenticate a document solely through the use of circumstantial evidence, including the document’s own distinctive characteristics and the circumstances surrounding its discovery”).

43. Rice, supra note 30, at 275.

44. Chain of custody involves verifying that the evidence has not bee altered from the time it became relevant to the time in which it was used in trial. Each custodian of the evidence must established that the evidence was secure from others and that he has not altered the evidence himself. See Rice, supra note 30, at 256-259; United States v. Whitaker, 127 F.3d 595, 602 (7th Cir. 1997). While chain of custody issues could arise given the threat of hackers and other network security concerns, the proponent of the evidence is only required to demonstrate to the judge that the proffered evidence is what he claims it is. Rice, supra note 30, at 258. “Airtight assurances are seldom necessary. Both parties usually can testify to the content of a communications and any changes made because they were involved in the communication’s creation.” Rice, supra note 30, at 250. Consequently, any issues go to the question of the weight of the evidence, not its admissibility.

45. United States v. Tank, 200 F.3d 627 (9th Cir. 2000). The defendant only challenged whether a proper foundation was laid for admitting these chat room logs into evidence and did not challenge admissibility under any other rule, including hearsay or best evidence. Id. at 629, n.3.

46. Ibid. at 629.

47. Ibid. at 630.

48. Ibid.

49. Ibid. (citing United States v. Catabran, 836, F.2d 453, 458 (9th Cir. 1988) “Any question as to the accuracy of the printouts… would have affected only the weight of the printouts, not their admissibility.”)

50. Ibid. at 630-31. For a factually similar case affirming the use of circumstantial evidence to show a connection between the evidence at issue and the defendant, see United States v. Simpson, 152 F.3d 1241 (10th Cir. 1998).

51. “Defendants in criminal trials often attempt to challenge the authenticity of computer-generated records by challenging the reliability of the programs.” USDOJ, supra note 20 (citing United States v. Salgado, 250 F.3d 438, 452-53 (6th Cir. 2001); United States v. Liebert, 519 F.2d 542, 547-48 (3d Cir. 1975)).

52. See also United States v. Briscoe, 896 F.2d 1476, 1494-95 (7th Cir. 1990). (“the government provides sufficient facts to warrant a finding that the records are trustworthy and the opposing party is afforded an opportunity to inquire into the accuracy thereof.”).

53. Perfect 10, Inc. v. Cybernet Ventures, 213 F. Supp. 2d 1146 (C.D. Cal. 2002).

54. Ibid. at 1153.

55. Ibid. at 1154.

56. Ibid.

57. Ibid.

58. Ibid.

59. See also United States v. Siddiqui, 235 F.3d 1318, 1322-23 (11th Cir. 2000) (holding that e-mail messages were properly authenticated where messages included defendant’s e-mail address, defendant’s nickname, and where defendant followed up messages with phone calls).

60. USDOJ, supra note 20, “the mere possibility of tampering does not affect the authenticity of a computer record.” (citing United States v. Whitaker, 127 F.3d 595, 602 (7th Cir. 1997) (declining to disturb trial judge’s ruling that computer records were admissible because allegation of tampering was “almost wild-eyed speculation ... [without] evidence to support such a scenario”); United States v. Bonallo, 858 F.2d 1427, 1436 (9th Cir. 1988) (“The fact that it is possible to alter data contained in a computer is plainly insufficient to establish untrustworthiness.”); United States v. Glasser, 773 F.2d 1553, 1559 (11th Cir. 1985) (“The existence of an air-tight security system [to prevent tampering] is not, however, a prerequisite to the admissibility of computer printouts. If such a prerequisite did exist, it would become virtually impossible to admit computer-generated records; the party opposing admission would have to show only that a better security system was feasible.”). As a result, the rule for authenticating digital evidence is consistent with the rule used to establish the authenticity of other evidence such as narcotics. USDOJ, supra note 20 (citing United States v. Allen, 106 F.3d 695, 700 (6th Cir. 1997) (“Merely raising the possibility of tampering is insufficient to render evidence inadmissible.”)

61. It is important to note how federal courts sometimes skip the step of authenticating business records and immediately evaluate the proposed evidence under a hearsay framework and Fed. R. Evid. 803(6). “Prosecutors may note the conceptual overlap between establishing the authenticity of a computer-generated record and establishing the trustworthiness of a computer record for the business record exception to the hearsay rule. In fact, federal courts that evaluate the authenticity of computer-generated records often assume that the records contain hearsay, and then apply the business records exception.” USDOJ, supra note 20 (citing United States v. Salgado, 250 F.3d, 438, 452-53 (6th Cir. 2001) (applying business records exception to telephone records generated “automatically” by a computer); United States v. Linn, 880 F.2d 209, 216 (9th Cir. 1989) (same); United States v. Vela, 673 F.2d 86, 89-90 (5th Cir. 1982)).

62. United States v. Jackson, 208 F.3d 633, 637 (7th Cir. 2000).

63. Cf. USDOJ, supra note 20, noting “Evidence that a computer program is sufficiently trustworthy so that its results qualify as business records according to Fed. R. Evid. 803(6) also establishes the authenticity of the record.”

64. United States v. Whitaker, 127 F.3d 595, 601 (7th Cir. 1997).

65. Ibid.

66. In addition, the defense may also raise chain of custody issues.

67. If entirely computer-generated, hearsay would not exclude records compiled by a computer should it pass authentication:
No sincerity problems exist when statements are recorded mechanically. Perception and memory concerns are addressed if the proponent of the statement: (1) demonstrates that the recording device makes accurate recordings; (2) establishes that the device functioned corrected at the time the evidence was created; and, (3) if an individual was involved in the operation of the device, shows that the person was properly trained and corrected used it at the time the evidence was recorded.
Rice, supra note 30, at 275. Furthermore, by definition, hearsay is limited to the words or conduct of a person. Fed. R. Evid. 801(b). “With a machine, however, there is no possibility of a conscious misrepresentation, and the possibility of inaccurate or misleading data only materializes if the machine is not functioning properly.” State v. Armstead, 432 So.2d 837, 840 (La. 1983).

68. Sony Computer Enm’t Inc v. Connectix Corp., 48 F. Supp. 2d 1212, 1222-23 (N.D. Cal. 1999).

69. Ibid.

70. Jackson, 208 F.3d at 637.

71. Ibid.

72. Rice, supra note 30, at 279. (citing Vermont Elec. Power Co. v. Hartford Steam Boiler Inspection & Ins. Co., 72 F. Supp. 2d 441, 449) (D. Vt. 1999); Dassouf v. White, 2000 WL 235770 at *4).

73. United States v. Siddiqui, 235 F.3d 1318 (11th Cir. 2000).

74. Ibid.

75. Ibid. at 1320.

76. Ibid.

77. Ibid.

78. Ibid. 1321-22.

79. Ibid. at 1323. Siddiqui’s counsel first argued that the government failed to show with reliability who sent the e-mail. However, the court held that this claim goes to authentication, which the court extensively discussed prior to the hearsay objection. Siddiqui also challenged the government’s failure to properly authenticate the e-mail. The Eleventh Circuit found, however, a number of factors to support the e-mail’s authenticity, including the Siddiqui’s unique e-mail address (“msiddiquo@jajuar1.usouthal.edu”) on each of the e-mail messages to his colleagues, as well as testimony from his colleague that when he replied to the e-mail sent by the defendant “the ‘reply-function’ on [his] e-mail system automatically dialed Siddiqui’s e-mail address as the sender.” Ibid. at 1322. The e-mail address was also corroborated by another colleague in his deposition and in Siddiqui’s attorney’s cross-examination of said colleague. Finally, the e-mail bore details that further substantiated the e-mail’s authentication. Ibid. at 1322-23.

80. Ibid. at 1323.

81. Ibid.

82. Van Westrienen v. Americontinental Collection Corp., 94 F. Supp. 2d 1087 (D. Ore. 2000) (holding that representations made on the Web page of the defendant may be offered by the plaintiff as an admission even if the same statements are inadmissible hearsay when offered by the defendant.)

83. Sea-Land Serv., Inc. v. Lozen Int’l, LLC, 285 F.3d 808 (9th Cir. 2002). See also Perfect 10, 213 F. Supp. 2d at 1155 (“The Court treats the communications attributable to Cybernet employees as party admissions and will accept the third party communications only insofar as they indicate notice of infringing or potentially infringing activity.”)

84. Ibid. at 821.

85. Ibid.

86. Ibid.

87. Ibid.

88. Ibid. (citing Fed. R. Evid. 801(d)(2)(B) (providing that adoptive admissions by a party are not hearsay); see also 5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 801.31[3][b], at 801-56 (Joseph M. Laughlin ed., 2d ed. 2002) (“A party may adopt a written statement if the party uses the statement or takes action in compliance [with] the statement.”); Alvord-Polk, Inc. v. F. Schumacher & Co., 37 F.3d 996, 1005 n. 6 (3d Cir. 1994) (holding that statements of company president, which were reprinted in company publications, were not hearsay but were instead admissible as adoptive admissions).

89. Ibid.

90. Ibid.

91. Perfect 10, 213 F. Supp. 2d at 1155.

92. Ibid.

93. Fed. R. Evid. 803(6).

94. See Rice, supra note 30, at 290: “However, internal records of the ISP regarding a customer’s account that include information about the time that customer spent on-line — and which exact times different customers were on-line — could be admitted as business records of the ISPs as long as someone within the ISP organization properly qualifies the records as required by the business records exceptions.”

95. Craig’s List, Craig’s List Terms of Use, at http://www.craigslist.org/about/terms.of.use.html, accessed 9 May 2006.

96. Bower v. Bower, 758 So.2d 405, 411-15 (Miss. 2000) (customer cannot qualify records — must be custodian or some other qualified person).

97. Although relevant to this issue, the question of the retention of online records and the responsibility of ISPs to retain records for a set period of time is beyond the scope of this paper. For more information see Anne Broache and Declan McCullagh, “Data retention bill expected next week,” CNET News.com (21 September 2006), at http://news.com.com/Data+retention+bill+expected+next+week/2100-1028_3-6118283.html?tag=st.ref.go, accessed 13 November 2006.

98. eBay, “eBay.com Fees,” at http://pages.ebay.com/help/sell/fees.html, accessed 9 May 2006.

99. Fed. R. Evid. 803(6).

100. USDOJ, supra note 20 supports this analysis:
Consider an e-mail harassment case. To help establish that the defendant was the sender of the harassing messages, the prosecution may seek the introduction of records from the sender’s ISP showing that the defendant was the registered owner of the account from which the e-mail were sent. Ordinarily, this will require testimony from an employee of the ISP (“the custodian or other qualified witness”) that the ISP regularly maintains customer account records for billing and other purposes, and that the records to be offered for admission are such records that were made at or near the time of the events they describe in the regular course of the ISP’s business. Again, the key is establishing that the computer system from which the record was obtained is maintained in the ordinary course of business, and that it is a regular practice of the business to rely upon those records for their accuracy.
USDOJ, supra note 20.

101. See Romano, supra note 16, at 1779 (“Yet where Internet or Web postings are offered as business records, courts may need to take a closer look at their trustworthiness. To date, no federal court has held that Web pages or Internet postings are ‘business records’ according to the Rule 803(6) hearsay exception.”)

102. See Rice, supra note 30, at 288-289.

103. See United States v. Catabran, 836 F.2d 453 (9th Cir. 1988) In this case, the defendant suggested that the admitted computerized business records contained errors based on data entry. However, witness testified to correctly inputting the data. The defendant also challenged the accuracy of the computer program itself, charging that the computer program created inaccurate inventory figures based on the markup it applied. Even with the extensive cross-examination on this issue, the court concluded that the District Court did not abuse its discretion in admitting the records. “Any question as to the accuracy of the printouts, whether resulting from incorrect data entry or the operation of the computer program, as with inaccuracies in any other type of business records, would have affected only the weight of the printouts, not their admissibility.” Ibid. at 458 (citing Manual for Complex Litigation Second § 21,446 n.81 (1985)).

104. United States v. Ferber, 966 F. Supp. 90 (D. Mass. 1997).

105. See Romano, supra note 16, at 1789. The government also tried to admit the e-mail as a business record under 803(6) and as an excited utterance under 803(2). Neither claim prevailed. See Ferber, 966 F. Supp. at 98-99.

106. Ferber, 966 F. Supp. at 98.

107. Ibid.

108. Ibid.

109. Ibid. at 99.

110. Ibid. (citing United States v. Blakey, 607 F.2d 779, 785 (7th Cir. 1979) (statements made within 23 minutes of event admissible under Rule 803[1]); Miller v. Crown Amusements, Inc., 821 F. Supp. 703, 706-07 (S.D. Ga. 1993) (statements made within 10 minutes of event admissible under Rule 803[1]); see also Fed. R. Evid. 803(1) advisory committee’s note (under Rule 803(1) “in many, if not most, instances precise contemporaneity is not possible and hence a slight lapse [of time] is allowable.”).

111. Perfect 10, 213 F. Supp. at 1155 n.4.

112. Ibid.


Contents Index

Copyright ©2006, First Monday.

Copyright ©2006, Stacey Schesser.

MySpace on the record: The admissibility of social website content under the Federal Rules of Evidence by Stacey Schesser
First Monday, volume 11, number 12 (December 2006),
URL: http://firstmonday.org/issues/issue11_12/schesser/index.html





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