Technology: Authenticating social media posts

Companies should be prepared to offer foundational evidence to authenticate any social media posts that are vital to a case.

Authentication of social media posts is a relatively new issue for most courts. The ease with which it is possible to set up a profile or post messages under another’s name has led many courts to be extremely strict in applying authentication requirements. So it is important to go beyond the façade of a social media profile or post to obtain foundational evidence that will authenticate what you wish to use in court.

Authentication is generally governed by Rules 104 and 901 of the Federal Rules of Evidence or similar state rules. Rule 901 states that “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Rule 901 provides several illustrations of various authentication methods, perhaps the most relevant for social media being “[t]estimony that a matter is what it is claimed to be” and “[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.”

The Griffin court noted:

The concern arises because anyone can create a fictitious account and masquerade under another person’s name or can gain access to another’s account by obtaining the user’s username and password . . . . The potential for fabricating or tampering with electronically stored information on a social networking site, thus poses significant challenges from the standpoint of authentication of printouts of the site . . . . We differ from our colleagues on the [intermediate] Court of Special Appeals, who gave short shrift to the concern that ‘someone other than the alleged author may have accessed the account and posted the message in question.’


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Patrick Patras

Patrick L. Patras is a partner in the Chicago office of Hinshaw & Culbertson LLP. He concentrates his practice in the areas of intellectual property...

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