Federal Rules of Evidence 902(14) Update Requires Digital Authentication for Electronic Evidence

Beginning December 1, 2017, an update to the Federal Rules of Evidence 902(14), which addresses the proper authentication of social media evidence, will take effect. While we’ll go into detail below, what it really comes down to is that the end has come for accepting screen shots or “print screen” images as digital evidence when it comes to web sites and social media data.

The new rule requires that electronic data be self-authenicating through digital identification. This means the data must be accompanied by metadata (such as date posted, account, user, etc.) and other means that can be verified. It aims to avoid having experts be required to authenticate such data.

The court has increasingly ruled that screen shots, which have no real accompanying metadata aside from noting when the screen was “captured” (nothing about the post itself, such as who posted it and when, meaning it could have been “Photoshopped” or altered) are NOT admissable as evidence.

Examples that apply include:

• State of Louisiana v. Demontre Smith, La. Court of Appeals, April 20, 2016 – Social media posts ruled as inadmissible due to lack of authenticity, such as via testimony or identifying characteristics contained in posts to identify their creator.
• Linscheid v. Natus Medical Inc., 2015 WL 1470122, at *5-6 (N.D. Ga. Mar. 30, 2015) – Court rules print-out of LinkedIn not sufficient to be admitted into evidence.
• Moroccanoil vs. Marc Anthony Cosmetics (2014) – Court rules Facebook screenshots inadmissable.

The new rule puts the final nail in the coffin.

Federal Rules of Evidence 902(14)

The new rule reads as follows (read the official amendment adopted by the Supreme Court here starting at p. 116):

The following items of evidence are self authenticating; they require no extrinsic evidence of authenticity in order to be admitted:

(14) Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent also must meet the notice requirements of Rule 902(11). 

Using software that DOES collect metadata on EACH social media post and website meets the requirement of self-authenticating documents and thus will be critical in meeting the requirements of the Rules of Evidence. Step Ahead Social Research uses a variety of these software tools to collect all public social media and web data about an individual, preserving it should they later alter or delete the items, and providing it to you in a way that is admissable.

We are experts in what tools to use for which scenario — whether we are downloading a Facebook profile, scanning a blog or conducting research on potential jurors. We know the advantages and disadvantages of each, employing the best tool for your situation and managing the process throughout, so you only have to review the final results.

Other benefits of these tools include:

• Easy-to-view reports in both a spreadsheet and visual format (like scanning down the social media page itself)
• Ability to limit data by post type, key word, date and more
• Only downloads publicly-available information so there are no ethical concerns
• Independently verifiable versus being collected by an on-staff individual who may need to testify and thus present a conflict of interest
• Time-saving with automatic downloads of social media data
• Continues to download posts as they are added for regular reporting, so you don’t miss anything

Are you ready for this new rule to go into effect? Are you prepared to collect social media and web data that may need to be submitted as evidence?

Contact us today for more information, rates and to start collecting and preserving social media and web data for your first case or claim. Email lyn AT socialmediainvestigation.com or call us at 317-855-9927.