MySpace on the record: The admissibility of social website content under the federal rules of evidence

First Monday

Volumn 11, Issue 12, 2006, Pages

  Schesser, Stacy ^a  

^a San Francisco District Attorney's Office   (United States)

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EID: 33845369886     PISSN: 13960466     EISSN: None     Source Type: Journal    
DOI: 10.5210/fm.v11i12.1419     Document Type: Article

References (165)

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. Susannah Fox and Mary Madden, Pew Internet & American Life, "Data Memo: Generations online," 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 My Space.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.
12. 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." My Space 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.
13. "Dangers in MySpace.com," supra note 8.
14. "My Space to Hire Safety Czar," supra note 1.
15. "Looking For A Link," supra note 6.
16. See e.g., Orin Kerr, "Digital Evidence and the New Criminal Procedure," 105 Colum. L. Rev. 279-318 (2005).
17. Leah Voigt Romano, "Developments in the Law: VI. Electronic Evidence and the Federal Rules," 38 Loy. L.A. L. Rev. 1745, 1749 (Summer 2005).
18. Fed. R. Evid. 901 (a).
19. See also United States v. Simpson, 152 F.3d 1241, 1250 (10th Cir. 1998).
20. Fed. R. Evid. 901(a) advisory committee's notes.
21. Fed. R. Evid. 901(b) (4);
22. See also United States v. Paulino, 13 F.3d 20, 23 (1st Cir. 1994).
23. 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&snianual2002.htm, accessed 9 May 2006
24. (citing Fed. R. Evid. 901(b), advisory committee's notes) [hereinafter USDOJ].
25. USDOJ, supra note.20
26. (citing United States v. Vela, 673 F.2d 86, 90 (5th Cir. 1982);
27. United States v. DeGeorgia, 420 F.2d 889, 893 n.11 (9th Cir. 1969).
28. 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").
29. USDOJ, supra note 20
30. (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");
31. 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);
32. United States v. Miller, 111 F.2d 1219, 1237 (9th Cir. 1985) (telephone company billing supervisor can authenticate phone company records);
33. United States v. Moore, 923 F.2d 910, 915 (1st Cir. 1991) (head of bank's consumer loan department can authenticate computerized loan data).
34. David A. Sklansky, Evidence 45 (2003).
35. See Ohio v. Roberts, 448 U.S. 56, 62-66 (1980).
36. Fed. R. Evid. 801 (a) (emphasis added).
37. Fed. R. Evid. 801(b) (emphasis added).
38. USDOJ, supra note 20.
39. Fed. R. Evid. 801(d)(2).
40. Fed. R. Evid. 801(d)(2) advisory committee's note.
41. Paul R. Rice, "Electronic Evidence: Law and Practice," A.B.A. Sec. of Litig. 269 (2005) [hereinafter Rice].
42. 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.")
43. 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).
44. Sklansky, supra note 23, at 65.
45. Sklansky, supra note 23, at 65. Ibid.
46. Fed. R. Evid. 803(6).
47. 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."
48. USDOJ, supra note 20.
49. Fed. R. Evid. 1002.
50. 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."
51. Fed. R. Evid. 1003.
52. 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").
53. Fed. R. Evid. 1001(1).
54. See also Romano, supra note 16, at 1794-95, n. 372.
55. Fed. R. Evid. 1001(3).
56. 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."
57. United States v. Vela, Ibid, at 90.
58. 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.")
59. USDOJ, supra note 20
60. (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.");
61. 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
62. FED. R. CIV. P. 807.
63. St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 774-75 (S. D. Tx. 1999).
64. 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").
65. Rice, supra note 30, at 275.
66. 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;
67. 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.
68. 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."
69. Rice, supra note 30, at 250. Consequently, any issues go to the question of the weight of the evidence, not its admissibility.
70. 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.
71. United States v. Tank Ibid, at 629.
72. United States v. Tank Ibid, at 630.
73. United States v. Tank Ibid, at 630.
74. United States v. Tank Ibid, at 630.
75. (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.")
76. United States v. Catabran 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
77. see United States v. Simpson, 152 F.3d 1241 (10th Cir. 1998).
78. "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
79. (citing United States v. Salgado, 250 F.3d 438, 452-53 (6th Cir. 2001);
80. United States v. Liebert, 519 F.2d 542, 547-48 (3d Cir. 1975)).
81. 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.").
82. Perfect 10, Inc. v. Cybernet Ventures, 213 F. Supp. 2d 1146 (C.D. Cal. 2002).
83. Perfect 10, Inc. v. Cybernet Ventures Ibid. at 1153.
84. Perfect 10, Inc. v. Cybernet Ventures Ibid. at 1154.
85. Perfect 10, Inc. v. Cybernet Ventures Ibid. 57.
86. Perfect 10, Inc. v. Cybernet Ventures Ibid. 57.
87. Perfect 10, Inc. v. Cybernet Ventures Ibid. 57
88. 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 email address, defendant's nickname, and where defendant followed up messages with phone calls).
89. USDOJ, supra note 20
90. "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)
91. (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.");
92. 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.
93. USDOJ, supra note 20
94. (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.")
95. 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
96. (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);
97. United States v. Linn, 880 F.2d 209, 216 (9th Cir. 1989) (same);
98. United States v. Vela, 673 F.2d 86, 89-90 (5th Cir. 1982)).
99. United States v. Jackson, 208 F.3d 633, 637 (7th Cir. 2000).
100. Cf. USDOJ, supra note 20, noting "Evidence that a computer program is sufficiently trustworthy so that its results qualify as business records according to
101. Fed. R. Evid. 803(6) also establishes the authenticity of the record."
102. United States v. Whitaker, 127 F.3d 595, 601 (7th Cir. 1997).
103. United States v. Whitaker, Ibid. 601(1997)
104. In addition, the defense may also raise chain of custody issues.
105. 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.
106. 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).
107. Sony Computer Enm't Inc v. Connectix Corp., 48 F. Supp. 2d 1212, 1222-23 (N.D. Cal. 1999).
108. Sony Computer Enm't Inc v. Connectix Corp., Ibid., 1222-23(1999)
109. Jackson, 208 F.3d at 637.
110. Jackson, Ibid. 637.
111. Rice, supra note 30, at 279.
112. (citing Vermont Elec. Power Co. v. Hartford Steam Boiler Inspection & Ins. Co., 72 F. Supp. 2d 441, 449) (D. Vt. 1999);
113. Dassouf v. White, 2000 WL 235770 at *4).
114. United States v. Siddiqui, 235 F.3d 1318 (11th Cir. 2000).
115. United States v. Siddiqui, Ibid.(2000)
116. United States v. Siddiqui, Ibid, at 1320.
117. United States v. Siddiqui, Ibid. at 1320.
118. United States v. Siddiqui, Ibid. at 1320.
119. United States v. Siddiqui, Ibid. 1321-22.
120. United States v. Siddiqui, 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."
121. United States v. Siddiqui 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.
122. United States v. Siddiqui Ibid. at 1322-23.
123. United States v. Siddiqui Ibid. at 1323.
124. United States v. Siddiqui Ibid. at 1323.
125. 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.)
126. Sea-Land Serv., Inc. v. Lozen Int'l, LLC, 285 F.3d 808 (9th Cir. 2002).
127. 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.")
128. Perfect Ibid. at 821.
129. Perfect Ibid. at 821.
130. Perfect Ibid. at 821.
131. Perfect Ibid. at 821.
132. Perfect Ibid at 821.
133. (citing Fed. R. Evid. 801(d)(2)(B) (providing that adoptive admissions by a party are not hearsay);
134. 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.");
135. 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).
136. Alvord-Polk, Inc. v. F. Schumacher & Co., Ibid., 1005(1994)
137. Alvord-Polk, Inc. v. F. Schumacher & Co., Ibid., 1005(1994)
138. Perfect 10, 213 F. Supp. 2d at 1155.
139. Perfect 10, Ibid. at 1155.
140. Fed. R. Evid. 803(6).
141. 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."
142. Craig's List, Craig's List Terms of Use, at http://www.craigslist.org/ about/terms.of.use.html, accessed 9 May 2006.
143. Bower v. Bower, 758 So.2d 405, 411-15 (Miss. 2000) (customer cannot qualify records - must be custodian or some other qualified person).
144. 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.
145. eBay, "eBay.com Fees," at http://pages.ebav.com/help/sell/fees. html, accessed 9 May 2006.
146. Fed. R. Evid. 803(6).
147. 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.
148. USDOJ, supra note 20.
149. 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.")
150. See Rice, supra note 30, at 288-289.
151. 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."
152. United States v. Catabran Ibid, at 458
153. (citing Manual for Complex Litigation Second § 21,446 n.81 (1985)).
154. United States v. Ferber, 966 F. Supp. 90 (D. Mass. 1997).
155. 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.
156. See Ferber, 966 F. Supp. at 98-99.
157. Ferber, 966 F. Supp. at 98.
158. Ferber, Ibid. at 98.
159. Ferber, Ibid. at 98.
160. Ferber, Ibid. at 99.
161. Ferber, Ibid at 99
162. (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]);
163. 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.").
164. Perfect 10, 213 F. Supp. at 1155 n.4.
165. Perfect 10, Ibid. at 1155