EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, May 12, 2015

Court of Appeals of Maryland Agrees With My Student & Me on Higher Authentication Standard for Social Media Evidence

I have written about how Griffin v. Warden, Maryland Correctional Adjustment Center, 970 F.2d 1355 (4th Cir. 1992), should be the case that is used to support a finding that Adnan Syed received the ineffective assistance of counsel based upon his trial attorney's failure to contact potential alibi witness Asia McClain. Recently, Adnan's case was handed over to the Attorney General of Maryland, which submitted a Brief of Appellee that, inter alia, tried to distinguish Griffin.

It turns out that this isn't the first time that there's been an (indirect) clash between the Attorney General of Maryland and me over a case named Griffin. Instead, just last month, the Court of Appeals of Maryland had to decide whether to apply the interpretation of a case named Griffin by my student and me or the interpretation advanced by the Attorney General of Maryland. The Court of Appeals sided with my student and me; we'll see whether the same result will be reached in the Adnan Syed appeal.

Anyone who has ever been a teacher can probably understand the pride that I feel at this moment. In 2010, the Court of Special Appeals of Maryland decided Griffin v. State, 2010 WL 2105801 (Md.App. 2010). In 2011, that opinion was reversed by the Court of Appeals of Maryland Griffin v. State, 2011 WL 1586683 (Md. 2011). I wrote about these "SNITCHES GET STITCHES" cases on my blog (here and here). They dealt with the authentication of social media evidence. Authentication is covered by Federal Rule of Evidence 901 and state counterparts.

Specifically, Rule 901 (a) provides that

To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

For instance, in Griffin, the court had to determine whether there was sufficient evidence to support a finding that the defendant's girlfriend had authored a threatening MySpace message. Many courts have found that social media can be authenticated under Rule 901 (b)(4) and state counterparts. That Rule allows for authentication based upon

The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

The Court of Special Appeals in Griffin found that the MySpace message was authenticated based upon an accumulation of circumstantial evidence on the MySpace page, such as the girlfriend's date of birth, a photograph of her with the defendant, and references to the defendant's nickname. The Court of Appeals, however, reversed, finding that there should be a higher authentication standard for social media evidence based upon the security issues inherent in the medium.

Later, I had a student, Charles White, express an interest in writing an essay based upon these posts. I agreed to supervise Charles in writing the essay and was thrilled with the final result. Charles expressed an interest in publishing the essay with me, so we worked on revising it together, with the finished product being The Social Medium: Why the Authentication Bar Should Be Raised For Social Media Evidence.

Now, fast forward to 2015. The Court of Appeals of Maryland had granted cert in Sublet v. State, 2015 WL 1826582 (Md. 2015), consolidated appeals from various convictions. For obvious reasons, the Attorney General of Maryland was unhappy with the decision by Maryland's highest court in Griffin and asked the court "to relax the stance taken in Griffin." According to the Attorney General,

This Court's reaction in Griffin is consistent with a historical pattern. Courts "have expressed [a similar] attitude in [early] opinions concerning the admissibility of audio recordings, photographs, motion pictures, and computer generated business records."...Although courts have initially responded with skepticism toward evidence derived from new technologies, "[w]ith each of these technologies, initial judicial intransigence eventually yielded to grudging acceptance .... Then, over time, as courts grew more comfortable with the technologies, foundation requirements loosened."

As support, the Attorney General asserted that

there is no reason to believe that the theoretical ability to create a fictitious account or gain unauthorized access to an existing account makes social media evidence any less reliable than traditional written documents, which also can be easily faked.

Moreover, the Attorney General claimed that "[a] jury is...just as, if not more, capable than a judge of assessing the authenticity of social media evidence."

These arguments were diametrically opposed to the position advanced by Charles and me in our essay. It's thus unsurprising that one of the briefs responding to the AG's brief cited us extensively. According to the brief,

a recent law review article by a noted scholar confirms the need for a heightened test like the one established in Griffin. Colin Miller & Charles White, The Social Medium: Why the Authentication Bar Should Be Raised For Social Media Evidence....

A heightened standard is...necessary, White and Miller elaborate, because certain means of establishing circumstantial evidence are not as reliable when applied to social media evidence. "The problem," as identified by the authors, "is that, as currently applied, 901(b)(4) [the rule permitting authentication via circumstantial evidence] is an analog rule in a digital world." Id. at 7. The authors elucidate their point by referring to the Advisory Committee Note for Federal Rule 5-901(b)(4),  which suggests three ways an item itself may "allow for authentication": (1) "a document or telephone conversation may be shown to have emanated from a particular person by virtue of its disclosing knowledge of facts known peculiarly to him"; (2) "a letter may be authenticated by content and circumstances indicating it was in reply to a duly authenticated one"; and (3) "[l]anguage patterns may indicate authenticity or its opposite." Id. at 7, 10, 12.

As Miller and White point out, the reliability of these suggestions faces marked obstacles when applied to social media evidence. For example, where modern digital communications now make it much easier to access otherwise private information about individuals and their circumstances, it is "appropriate to raise the bar on exactly what type of 'peculiar knowledge'...allows for an inference of authentication under [Federal] Rule 901(b)(4)." Id. at 9. Furthermore, whereas fabricating a reply to a letter would require an elaborate mail-fraud scheme, communications like “Facebook messages can be copied or re-shared by anyone who can see them, which is usually anyone with a Facebook account, even if the user attempts to keep the information private.” Id. at 11.  *11 Finally, language patterns become less dispositive in the context of social network communications because “the relevant community is the online community,” not a circumscribed geographical area, and social media makes it much easier to mimic the language patterns of others. Id. at 13. All together, these aforementioned examples, which are hardly exhaustive, demonstrate the need for a higher authentication threshold for social media evidence.

So, the Court of Appeals of Maryland had to resolve the clash between the AG's argument that the authentication standard from Griffin should be lowered and the argument by Charles and myself that the court should stick with a higher authentication standard. It picked our argument.

Specifically, the court found

succor in the standard articulated by the United States Court of Appeals for the Second Circuit in United States v. Vayner, 769 F.3d 125 (2d Cir.2014), which, on facts analogous to those in Griffinreached a similar conclusion.

In Vayner, the Second Circuit found that there was improper authentication of a page on VK.com (the Russian equivalent of Facebook) based on the following reasoning:

The page could not be authenticated by "distinctive characteristics", the Second Circuit continued, because "all the information contained on the VK page allegedly tying the page to Zhyltsou was also known by Timku and likely others, some of whom may have had reasons to create a profile page falsely attributed to the defendant":

It is true that the contents or "distinctive characteristics" of a document can sometimes alone provide circumstantial evidence sufficient for authentication. Fed.R.Evid. 901(b)(4).  For example, a writing may be authenticated by evidence "that the contents of the writing were not a matter of common knowledge."...Here, however, all the information contained on the VK page allegedly tying the page to Zhyltsou was also known by Timku and likely others, some of whom may have had reasons to create a profile page falsely attributed to the defendant. Other than the page itself, moreover, no evidence in the record suggested that Zhyltsou even had a VK profile page, much less that the page in question was that page. Nor was there any evidence that identity verification is necessary to create such a page with VK, which might also have helped render more than speculative the conclusion that the page in question belonged to Zhyltsou.

There was a concurring/dissenting opinion joined by one of the judges who dissented in Griffin, arguing that "the Majority set bad precedent in holding that a trial judge can establish such a high bar for authentication as the court did in the Sublet case." In the end, however, the majority stuck with the higher authentication standard for social media evidence.

To the extent that the Court of Appeals of Maryland relied upon our essay in maintaining the higher authentication standard, all of the credit goes to Charles. He's the one who wrote the essay; I just helped him hone what he had already written. It's pretty exciting to have a student quite possibly influencing a state supreme court before he's even graduated from law school.



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Congratulations to both of you!! Very impressive!!!

Posted by: Anon | May 12, 2015 9:48:16 AM

While Griffin seems to deal with situations where the authenticity of the profile itself is called into question, what about the scenario where the creator of the profile is not in doubt, but messages or posts are alleged to be the product of an unauthorized user? The Griffin court referenced People v. Clevenstine, a New York case where that issue arose, and where, after evidence linking the MySpace profile itself to the defendant’s computer (and linking messages from the account to the victims’ computers) authenticated the profile, the issue of whether the messages were sent by the defendant was held to be a question of fact for the jury. Compare State v. Eleck, a Connecticut case referenced in your student’s article, where the creator of a Facebook account admitted control of the account, but denied sending the messages. In Eleck, where the content of the messages at issue did not contain enough identifying information to authenticate their source, and external testimony was unavailable for corroboration, the messages were ruled inadmissible.

Absent direct testimony as to the identity of a sender, would the mere fact that a profile creator (if proven to access the page somewhat regularly) never removed a post, or, in the case of messages, received reply messages without investigating the reason for the messages, constitute authentication of the source? Unlike the “reply letter” doctrine, such a presumption would not depend on the difficulty of intercepting the original communication (questionable in the digital age) but rather on the ease with which the profile creator can view and address communications, regardless of who originated them. After all, it does seem circumstantially unlikely that a social media user would not respond to such unauthorized use. Such an analysis might apply the reasoning behind the doctrine of adoptive admissions, where silence may be held to constitute agreement where circumstances would compel a reasonable person to voice any objections they possessed. On the other hand, should more affirmative proof be required where the issue is whether a statement was made by a specific individual at all, as opposed to whether the statement was adopted? Altogether, interesting questions for the new evidence frontier.

Posted by: Josh | May 12, 2015 10:24:18 AM

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