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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. 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. But the authentication rules do not lose their logical and legal force as a result. Depending on the circumstances of the case, a variety of factors could help support or diminish the proponent's claims as to the authenticity of a document allegedly derived from a social media website, and the Rules of Evidence provide the courts with the appropriate framework within which to conduct that analysis.
Facebook is a social networking website that requires users to provide a name and email address to establish an account. Account holders can, among other things, add other users to their “friends” list and communicate with them through Facebook chats, or messages. Under the Facebook account name “Billy Button,” Tony Jefferson Browne began exchanging messages with 18-year-old Nicole Dalmida in November 2011. They met in person a few months later and then exchanged sexually explicit photographs of themselves through Facebook chats. Browne then threatened to publish Dalmida's photos online unless Dalmida engaged in oral sex and promised to delete the photos only if she provided him the password to her Facebook account. Using Dalmida's account, Browne made contact with four of Dalmida's “Facebook friends,” all minors — T.P. (12 years old), A.M. (15 years old), J.B. (15 years old) and J.S. (17 years old) — and solicited explicit photos from them by a variety of means. Once he had the minors' photos, he repeated the pattern he had established with Dalmida, threatening all of them with the public exposure of their images unless they agreed to engage in various sexual acts and sent additional explicit photos of themselves to his Button Facebook account or to his phone number (“the 998 number”). He arranged to meet with three of the minors and sexually assaulted one. On receiving information from the Virgin Islands Police Department, agents from the Department of Homeland Security (DHS) interviewed Dalmida and three of the minors. In June 2013, DHS arrested Browne and executed a search warrant on his residence. Among the items seized was a cell phone that matched the 998 number and from which text messages and photos of the minors were recovered. During questioning and at trial, Browne admitted the 998 number and phone belonged to him. DHS executed a search warrant on the Button Facebook account, which Browne also admitted belonged to him, and Facebook provided five sets of chats and a certificate of authenticity executed by its records custodian. Browne was convicted of child pornography and sexual offenses with minors. Browne contested his conviction on the ground that these records were not properly authenticated with evidence of his authorship.
Are Facebook records business records that are properly authenticated pursuant to Rule 902(11) of the Federal Rules of Evidence by way of a certificate from Facebook's records custodian?
The court held that "chats" on a social media site among Browne’s alias and four witnesses were not business records under Fed. R. Evid. 803(6) and thus could not be self-authenticated under Fed. R. Evid. 902(11). The Government had presented sufficient extrinsic evidence to authenticate the chats under Fed. R. Evid. 901(a), as there was abundant evidence linking Browne and the testifying victims to the chats conducted through the alias account and reflected in the logs procured from the social media site. A chat in which Browne did not participate was inadmissible hearsay under Fed. R. Evid. 802, as it functioned at least in part to prove the truth of the matter asserted, but the error was harmless in light of the properly admitted evidence supporting guilt.