What Social Media Evidence is Admissible in Court?

Social media evidence has become a key component in litigation. Evaluating what a person posts to their social media accounts has become a standard part of discovery and is often a critical case component. But knowing what types of evidence to look for can be key to determining your search. Understanding what processes need to be in place to ensure the authenticity and admissibility of social media evidence is vital to ensuring that a court will consider that evidence.

What is social media evidence?

The term social media evidence refers to data contained in different social media platforms and whose integrity and digital chain of custody are maintained so that the evidence has value. It’s the digital footprint that a user leaves behind.

There are three things to consider when looking to gain access to evidence on a social media account.

  1. Does an account exist?
  2. Is that account public or private?
    1. If an account is public, you are free to gather any information shared there
    2. If an account is private, you may need to prove in court that content in the account is relevant and material to the case before it is admissible
  3. Is there relevant content in the account?

What could be admissible?

Evidence from social media platforms that could be admissible includes posts that the user made, shared, or liked. It could be an analysis of the friend list of that user. It could be photos or videos or a breakdown of what groups they are a member of on the platform.

How to ensure that social media evidence is admissible?

Both public and private information on a social media account may be admissible. Admissibility of evidence depends on several factors, including the relevance of the evidence to the case at hand and its authenticity.

To be admissible in court, social media evidence must first be authenticated directly. Authenticity is governed by several federal rules, including Rule 901. Authenticating or Identifying Evidence. For social media evidence to be admissible, it is necessary to prove the circumstances under which it was obtained, as well as the digital chain of custody, and how such evidence was preserved by investigators.

What social media platforms are useful for an investigation?

The social media platforms that are useful for a social media investigation are also among the most popular platforms, including Facebook, YouTube, Twitter, LinkedIn, TikTok, and Instagram. These platforms allow one to obtain pertinent information about an individual’s background and day-to-day life.

Check out our Investigator’s Guide series to learn more about the social media platforms that are useful in an investigation and the types of relevant material you may find on them.

Tools for capturing and preserving information

Professional webpage capture tools are one of the best ways to capture and preserve information on a person’s social media account. This type of software allows data collection of a social media profile’s entire content, including statuses, comments, and the photos and videos published there. The information is extracted and published as a PDF file, making it easy to read while also including the technical data of the process. This technical data provides a digital footprint that shows how & where the information was obtained, including the URL, time of capture, source code, and metadata, thus preserving the integrity of the digital evidence.

While tools exist to help capture and preserve information from social media accounts, it is worth considering how the human factor affects this data collection. Using people to conduct social media and web research carries both positives and negatives. Among the pros when using trained professionals is specificity in searches, customizable reports that meet a client’s specific goals, and higher quality results due to the expertise and analysis behind the research performed. On the other hand, human involvement introduces the very real possibility of human error. Searches conducted by humans are also time-consuming – and for attorneys, time is money.

The solution is not to adopt a blind acceptance of imprecise or inaccurate automated search response or take a luddite approach and dismiss technology and automation altogether. A smarter strategy is to combine the power of automated searches with the oversight of human expertise.

SMI Aware specializes in locating and preserving internet evidence. Our proprietary technology and certified Analysts will save time and money while improving data quality. Contact us today for help capturing that information.

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