Facebook has been making headlines lately over claims it shared personal data on more than 87 million people to the political data firm, Cambridge Analytica for use in the 2016 presidential election. In the midst of the Cambridge Analytica chaos, the Pennsylvania Superior Court provided long-overdue guidance on the authentication of posts from Facebook and other social media platforms. In the criminal case of Commonwealth v. Mangel, 2018 PA Super 57 (Mar. 15, 2018), a case of first impression in Pennsylvania, the Superior Court held that Facebook posts are not admissible without evidence, whether direct or circumstantial, substantiating the authorship of the messages, see Daniel E. Cummins, “Authentication in the Digital Age: In Recent Cases, Old and New Collide,” The Legal Intelligencer, April 5, 2018, and Zack Needles’ “Superior Court Adopts Standard for Authenticating Social Media Posts,” The Legal Intelligencer, March 21, 2018, for excellent discussions on the Mangel case.

In Mangel, defendants Tyler Mangel and Matthew Craft were charged with the simple and aggravated assault and harassment of Nathan Cornell at a graduation party. After he was assaulted, Cornell told the police he did not know the defendants, but could identify them as he was shown Facebook pictures by his family. The commonwealth filed a motion in limine to introduce screenshots of certain pages of a Facebook account for “Tyler Mangel,” consisting of undated online and mobile device “chat” messages. The commonwealth also sought to introduce a Facebook screenshot where a photograph of purportedly bloody hands had been posted by “Justin Jay Sprejum Hunt.”

During a hearing on the commonwealth’s motion in limine, a detective for the commonwealth, was qualified as an expert in computer forensics and testified as to what she did in response to the commonwealth’s request to determine the owner of a Facebook account bearing the name “Tyler Mangel.” The detective testified that she conducted a search on Facebook for Tyler Mangel, which produced only one result. The detective testified that she compared the Facebook account to the screenshots she received from the commonwealth and concluded that the Facebook account “should be the same” as the account in the screenshots because both accounts bore the name “Tyler Mangel;” listed the account holder as living in Meadville, Pennsylvania; listed the account holder as having attended Meadville High School; and displayed several photographs which seemed to be of the same individual. Defendant Mandel’s address was in Meadville in the criminal complaint filed against him.

That the Facebook account “should be the same” as the account in the screenshots from the commonwealth was not enough for the court, as the gatekeeper of admissibility. The trial court pressed the detective to state with “a reasonable degree of certainty” that it was defendant Mangel who made the post and that no one else intervened or “grabbed the account.” The detective could not do this, leading the trial court to deny the commonwealth’s motion in limine and preclude the Facebook posts from admission into evidence.

On appeal, the Superior Court acknowledged that the question of what proof is necessary to authenticate social media evidence, such as Facebook postings and communications, appears to be an issue of first impression in Pennsylvania. The court unanimously held that the mere fact the Facebook account in question bore Mangel’s name, hometown and high school was insufficient to authenticate the online and mobile device chat messages as having been authored by Mangel. Equally as concerning, was that there were no contextual clues in the chat messages that identified Mangel as the sender of the messages. Also, the commonwealth did not obtain username or password for the Facebook account; detective did not obtain an IP address; and defense counsel showed five accounts for “Tyler Mangel,” which contradicted the detective earlier testimony that she found only one “Tyler Mangel” account during her search.

So, What Is the ‘Mangel’ Standard?

Although the Mangel court discussed how to authenticate Facebook posts in that case, the court noted there is no specific standard. Instead, the court stated that authentication of social media evidence is to be evaluated on a case-by-case basis to determine whether there has been an adequate foundational showing of its relevance and authenticity.

Authentication is a law of foundation. Much like the best evidence rule or witness qualification, authentication goes to whether the evidence is reliable. Authentication involves a two-step process. As the Mangel court correctly noted, “the proponent of the evidence must introduce sufficient evidence that the matter is what it purports to be.” Making the initial determination whether “sufficient evidence” exists, the first step, is a relatively low standard. The judge simply must determine whether the authentication offered by the proponent is sufficient. That is, the judge must determine whether the level of proof offered was sufficient to make a prima facie showing that the item is what it purports to be. If so, the item must be admitted into evidence even if the item is contradicted by competence evidence offered by the nonoffering party.  United States v. Koziy, 728 F.2d 1314, 1321 (11th Cir. 1984) (admission of documents was proper where one expert witness testified that the documents were similar to other genuine documents of that type which he had seen and another expert testified that the documents were not executed after a certain date).

As the Third Circuit stated, such “burden of proof for authentication is slight.” See Lexington Insurance v. West Pennsylvania Hospital, 423 F.3d 318, 328–29 (3d Cir. 2005) (citing McQueeney v. Wilmington Trust, 779 F.2d 916, 928 (3d Cir. 1985); Link v. Mercedes–Benz of North America, 788 F.2d 918, 927 (3d Cir. 1986)). “The showing of authenticity is not on a par with more technical evidentiary rules, such as hearsay exceptions, governing admissibility. Rather, there need be only a prima facie showing, to the court, of authenticity, not a full argument on admissibility.”

The Third Circuit’s analysis is consistent with Rule of Evidence 104 (same for both federal and Pennsylvania). The court determines whether an item is admissible into evidence under Rule 104(a), which, as both the Mangel court and the Third Circuit noted, is a low standard. Then, it is a fact finder’s job to determine whether the evidence is, in fact, “authentic” under Rule 104(b).  “Once a prima facie case is made, the evidence goes to the jury and it is the jury who will ultimately determine the authenticity of the evidence, not the court. The only requirement is that there has been substantial evidence from which they could infer that the document was authentic,” as in Lexington Insurance, 423 F.3d at 328–29. See, also,United States. v. American Radiator & Standard Sanitary, 433 F.2d 174, 192-3 (3d Cir. 1970) (stating that it is only necessary that a prima facie case of alleged author’s identity be established for documents to be admissible as the ultimate issue of their authorship and probative weight to be afforded them is for the jury).

So, How Do I Authenticate Facebook and Other Similar Social Media Posts?

The easiest way to authenticate social media posts and messages is through the direct testimony of the poster or sender or from someone who saw the author compose and publish the post or message. Since this is not always an option, especially in criminal cases, the first prong of the authentication process can be satisfied through various types of circumstantial evidence.

For example, in United States v. Lewisbey, 843 F.3d 653 (7th Cir. 2016), the U.S. Court of Appeals for the Seventh Circuit affirmed the trial court’s holding that incriminating posts made on Facebook were properly authenticated as belonging to defendant David Lewisbey where the Facebook account that the posts were made on listed certain biographical information of the defendant, such as his nickname, date of birth, and place of residence; the email address associated with the Facebook account matched the email linked to the defendant’s iPhone; the Facebook account included more than 100 photos of the defendant that were also on the defendant’s iPhone; the Facebook application on the defendant’s iPhone was linked to the Facebook account at issue and messages on the Facebook account discussed the defendant’s trips to gun shows in locations and on dates when gun shows occurred at those locations.

In another very recent case, United States v. Recio, 884 F.3d 230 (4th Cir. 2018), the Fourth Circuit court, found, unlike the Mangel court, it was the defendant Jimenez Recio’s burden to show that someone else accessed or could have accessed, his Facebook account. In that case, the United States presented a certification by a Facebook records custodian showing that the Facebook record containing the post was made at or near the time the information was transmitted by the Facebook user. Further, the government tied the Facebook user to the defendant by showing the username associated with the account was “Larry Recio,” one of the four email addresses associated with the account was larryrecio20@yahoo.com, more than 100 photos of defendant were posted to the account, and that photos posted to the user’s “timeline” by others addressed him as “Larry Recio.”

Conclusion

Under Mangel, the “standard” of authenticating social media posts requires that there must be some evidence—usually circumstantial evidence—that corroborates the identity of the author (sender). As the court noted, however, the court must assess authentication issue on a case-by-case basis, meaning the inquiry is highly fact sensitive. Practitioners should remember the two-step analysis of authentication and present sufficient evidence that is reasonably necessary under the facts of their cases to make a prima facie showing when introducing social media posts.

Edward T. Kang is the managing member of Kang Haggerty LLC. He devotes the majority of his practice to business litigation and other litigation involving business entities.

Reprinted with permission from the April 12th edition of “The Legal Intelligencer”© 2018 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.