Day on Torts
How do you authenticate a Facebook account? A Georgia court affirmed a prosecutor’s successful efforts to have excerpts of a criminal defendant’s Facebook account admitted into the evidence.
The defendant (Nichols) claimed
that the trial court abused its discretion by admitting Facebook records that included several private messages that the State claimed he had sent. The State used a search warrant to obtain the records from Facebook, which also provided a certification of authenticity. Nichols argues that the State did not sufficiently authenticate that the messages were sent by him.
The Supreme Court of Georgia disagreed, concluding that
The prima facie showing required to admit printouts from a Facebook account may be established by circumstantial evidence of distinctive characteristics of the account that identify its owner….At trial, the gang expert testified that he had reviewed the Facebook records; that the account contained Nichols’s biographical information including his name, nicknames associated with him, and his birth date; that Wilson’s name was listed in the friend’s list of the account, and the owner of the account sent a message to Wilson’s account wishing Wilson a happy birthday; that the IP address linked to the account was located in Decatur, where Nichols lived; and that in private messages sent from the account, the sender identified himself as “Smurf” and provided a phone number that belonged to Nichols.
This was sufficient evidence to allow a reasonable jury to find that Nichols owned the Facebook account and sent the private messages. See Cotton, 297 Ga. at 260, 773 S.E.2d 242 (holding that a Facebook account was properly authenticated by a witness who knew the defendant’s nickname that was associated with the account and recognized that the defendant’s friends and family were listed in the friend’s list of the account); Burgess v. State, 292 Ga. 821, 823-824, 742 S.E.2d 464 (2013) (holding that a MySpace account was properly authenticated by an investigator who testified that the defendant’s nickname was associated with the account and identified the defendant’s biographical information on the account); Glispie v. State, 335 Ga. App. 177, 185, 779 S.E.2d 767 (2015) (holding that text messages were properly authenticated by an investigator who, among other things, testified that the sender referred to himself by name in the messages), reversed in part on other grounds, 300 Ga. 128, 793 S.E.2d 381 (2016). The trial court did not abuse its discretion by admitting the Facebook records.
As pointed out by the author of the post that alerted me to this opinion, the court did not say so but it was relying “upon OCGA § 24-9-901(b)(4) to reach this conclusion. It states that there can be authentication through “[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.'” Tennessee Rule of Evidence 901(b)(4) is identical to Georgia’s rule.
The Georgia case is Nicholson v. State, 2019 WL 7046856 (Ga. 2019). Hat tip to Colin Miller.
For a recent Tennessee case on authentication of a Facebook post (and other social media posts) see State v. Burns, 2015 WL 2105543 *10-13 (Tenn. Cr. App. May 5, 2015). The issue is also discussed at State v. Linzy, 2017 WL 3575871 *11-14 (Tenn. Cr. App. Aug. 18, 2017).
Finally, here is an ALR Annotation on the subject: Annotation of Social Media Records and Communications, 40 A.L.R. 7th Art. 1 (2019).