Third Circuit Sets Standard for Facebook Chat Evidence

“At most, the records custodian employed by the social media platform can attest to the accuracy of only certain aspects of the communications exchanged over that platform, that is, confirmation that the depicted communications took place between certain Facebook accounts, on particular dates, or at particular times,” Third Circuit Judge Cheryl Ann Krause wrote in the court's opinion. “This is no more sufficient to confirm the accuracy or reliability of the contents of the Facebook chats than a postal receipt would be to attest to the accuracy or reliability of the contents of the enclosed mailed letter.”

Browne was convicted of 12 criminal counts, including child pornography and coercion charges. According to Krause, Browne used the Facebook alias “Billy Button” to solicit nude photos from Dalmida and the minors. Afterward, Browne threatened to publicly expose the photos unless Dalmida and the minors agreed to provide him with sexual favors. He met with three of the minors and sexually assaulted one, according to Krause.

Browne's public defender, Omodare B. Jupiter, declined to comment.

Discussing the preponderance of the evidence that pointed toward Browne's authorship of the messages, Krause said that examining additional evidence is critical in cases where digital records could be easily doctored.

“We hold today that it is no less proper to consider a wide range of evidence for the authentication of social media records than it is for more traditional documentary evidence,” Krause said. “The authentication of electronically stored information in general requires consideration of the ways in which such data can be manipulated or corrupted, and the authentication of social media evidence in particular presents some special challenges because of the great ease with which a social media account may be falsified or a legitimate account may be accessed by an imposter.”

Criminal defense attorney Steven Fairlie says the Third Circuit's ruling is illuminating because it shows the court will treat authentication of Facebook chats as it would any other evidence. This is especially useful, he said, given the increasing use of social media evidence in court.

“These issues do come up quite a bit,” Fairlie says.

Relying on a records custodian in the social media context, Fairlie adds, is precarious when it comes to proving authorship.

“Facebook has no idea if those communications were accurate if they were reliable and who made the posts,” Fairlie says. “They can say the accounts made the posts, but not who was in control of the phone.”

P.J. D'Annunzio writes for The Legal Intelligencer, the Philadelphia-based ALM sibling of this newsletter. He can be contacted at 215-557-2315 or [email protected]. Follow him on Twitter @PJDannunzioTLI.