Friday, October 4, 2019
First Circuit Finds Special Social Media Authentication Rules Don't Apply to Photographs Retrieved From Facebook
Federal Rule of Evidence 901(a) states 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.
So, let's say that someone retrieves photographs from a Facebook page. Does the rules regarding authenticating social media evidence apply in such a case?
According to the recent opinion of the United States Court of Appeals for the First Circuit in United States v. Vázquez-Soto, 2019 WL 4781686 (1st Cir. 2019), the answer is "no."
In Vázquez-Soto, Rodolfo Vázquez-Soto was convicted on two counts of making false statements and one count of theft of government property. Specifically, the State alleged that Vázquez-Soto filed annual claims of total disability and collected disability payments despite not being totally disabled. To prove its case,
One of the investigating agents, José Morales, testified about digital photographs that he downloaded from a Facebook page bearing the name of Vázquez-Soto's ex-wife, Carmen Rosa Janica. Morales explained that he found the photographs when he conducted an online “inquiry” concerning Vázquez-Soto. In conducting that inquiry, the agent searched for Janica on social media websites, including Facebook, and found a Facebook page under her name. On that page, Morales discovered a series of digital photograph albums, uploaded in 2010, that depicted Vázquez-Soto traveling in Colombia. When he looked through these albums, he recognized Vázquez-Soto2 and downloaded the photographs, which he kept on his computer until the trial.
Though the photographs were uploaded to Facebook in 2010, one had a 2008 date stamp. The others were not dated. The photographs show, inter alia: (1) Vázquez-Soto and a woman dressed in motorcycle club T-shirts standing in front of a group of motorcycles; (2) Vázquez-Soto standing among a large group of people dressed in motorcycle club T-shirts (with a date stamp of 12/21/08 on the photograph); (3) Vázquez-Soto among a group of people, each wearing a motorcycle helmet and standing next to a motorcycle; (4) Vázquez-Soto and another person on a motorcycle, each wearing a helmet; (5) Vázquez-Soto seated on a motorcycle in front of a large body of water; (6) Vázquez-Soto wearing a life-jacket standing in front of palm trees and what looks like a river; (7) Vázquez-Soto entering a paddle boat; (8) Vázquez-Soto standing in front of a waterfall; (9) Vázquez-Soto and a woman doing what appears to be dancing; and (10) Vázquez-Soto standing behind a motorcycle.
After he was convicted, Vázquez-Soto appealed, claiming that,
because the photographs were found on a Facebook page, [the court] must address the evidentiary rules for “authenticating social media data,” and that, under these rules, a proponent of social media evidence “must present a prima facie case ... that [the social media evidence] is in fact a posting on a person's Facebook page,” in this case the page of Janica, Vázquez-Soto's ex-wife. Without Janica's testimony that the photographs came from her Facebook page, or other evidence akin to it, Vázquez-Soto argues that the government failed to meet this requirement.
The First Circuit disagreed, concluding that
The authenticity of Janica's social media account is not at issue in this case -- that is, the account's ownership is not relevant. The photographs were introduced as images of Vázquez-Soto on a motorcycle trip, not as part of a social media statement by Janica. Thus, what is at issue is only the authenticity of the photographs, not the Facebook page. And, as the Sixth Circuit has observed, “it is not at all clear ... why our rules of evidence would treat electronic photos that police stumble across on Facebook one way and physical photos that police stumble across lying on a sidewalk a different way.”...Accordingly, the ordinary rules of authentication apply, and the question we must ask in assessing the district court's ruling is whether there was sufficient evidence for a reasonable factfinder to conclude that the photographs were what the government represented they were -- photographs of Vázquez-Soto.
The court then found that authenticity had been established because
The government offered the testimony of agent Morales that he downloaded the photographs because he recognized Vázquez-Soto. Morales identified Vázquez-Soto in the courtroom. He then pointed out Vázquez-Soto in each photograph and described his behavior (e.g., “I see [Vázquez-Soto] .... He's wearing the jacket and a helmet .... [T]he back of the helmet is a motorcycle logo, reddish. It's the same tag number as [that] of the motorcycle you're going to see.”). In determining whether the photographs were authentic, the jurors could examine the photographs and rely on their own observations of Vázquez-Soto in the courtroom. Under these circumstances, a reasonable factfinder could conclude that the photographs depicted Vázquez-Soto.