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Growth of Social Media Outpaces Traditional Evidence Rules

by Sabrina Ly

Thumbnail-Sabrina-Ly.jpg Evidence from social networking websites is increasingly involved in a litany of litigation. Although the widespread use of social media can lead to increased litigation, as well as increasing the cost of litigation, use of social media has assisted lawyers and police officers in proving cases and solving crimes. In New Jersey, for example, two teenage brothers were arrested and charged with murder of a twelve year-old girl. What led to the two teenagers' arrest was evidence left behind in their homes along with a Facebook post that made their mother suspicious enough to call the police. In another case, Antonio Frasion Jenkins Jr. had charges brought against him by an officer for making terroristic threats to benefit his gang. Jenkins posted a description of his tattoo on Facebook which stated: "My tattoo iz a pig get'n his brains blew out." Pig is considered a derogatory term for a police officer.The tattoo also had the officer's misspelled name and his badge number. The officer who is a part of the gang investigation team saw the Facebook post and immediately filed charges against Jenkins as he interpreted the tattoo as a direct threat against him and his family. These are two of the many situations in which social networking websites have been used as evidence to bring charges against or locate an individual.

The myriad of charges brought against an individual given evidence found on their social networking websites is the basis for Ira P. Robbin's article "Writings on the Wall: The Need for an Author-Centric Approach to the Authentication of Social-Networking Evidence" published in Volume 13.1 of the Minnesota Journal of Law Science and Technology. Robbins begins by discussing the varying ways in which social networking websites have been used as evidence in personal injury and criminal matters. Specifically, Twitter, Facebook and Myspace postings have been deemed discoverable if relevant to the issue and admissible only if properly authenticated by the Federal Rules of Evidence. However, courts across the country have grappled with the evidentiary questions that are presented by social media. In some states, the court admitted the evidence given distinctive characteristics that created a nexus between the posting on the website and the owner of the account. In other states, the court found the proof of the nexus was lacking. Regardless, overall concerns of potential hackers or fictitious accounts created by a third-party posing as someone else create problems of authentication.

Robbins argues that the traditional Federal Rules of Evidence do not adapt well to evidence from social networking websites. Accordingly, Robbins proposes the courts adopt an author-centric authentication process that focuses on the author of the post and not just the owner of the account. Failing to adopt an authentication method for evidence obtained on social networking websites may create consequences that could harm the values and legitimacy of the judicial process. The ability to manipulate or fake a posting creates unreliable evidence that would not only undermine the ability of the fact-finder to determine its credibility but would also unfairly prejudice the party in which the evidence is presented against.

Technology is an area of law that is rapidly evolving and, as a result, has made some traditional laws antiquated. In order to keep pace with these changes, legislators and lawmakers must constantly reexamine traditional laws in order to promote and ensure fairness and accuracy in the judicial process. Robbins has raised an important issue regarding authentication of evidence in the technological world, but as it stands there is much work to be done as technological advances outpace the reformation of traditional laws that govern it.