authentication of evidence

iMessedUp – Why Apple’s iOS 16 Update Is a Mistake in the Eyes of Litigators.

October 5, 2022
Data, Data Privacy, Evidence, Internet, Litigation

Carlisle Ghirardini, MJLST Staffer

Have you ever wished you could unsend a text message? Has autocorrect ever created a typo you would give anything to edit? Apple’s recent iOS 16 update makes these dreams come true. The new software allows you to edit a text message a maximum of five times for up to 15 minutes after delivery and to fully unsend a text for up to two minutes after delivery.[1] While this update might be a dream for a sloppy texter, it may become a nightmare for a victim hoping to use text messages as legal evidence.

But I Thought my Texts Were Private?

Regardless of the passcode on your phone, or other security measures you may use to keep your correspondence private, text messages can be used as relevant evidence in litigation so long as they can be authenticated.[2] Under the Federal Rules of Evidence Rule 901(a), such authentication only requires proof sufficient to support a finding that the evidence at issue is what you claim it is.[3] Absent access to the defendant’s phone, a key way to authenticate texts includes demonstrating the personal nature of the messages, which emulate earlier communication.[4] However, for texts to be admitted as evidence beyond hearsay, proof of the messages through screenshots, printouts, or other tangible methods of authentication is vital.[5]

A perpetrator may easily abuse the iOS 16 features by crafting harmful messages and then editing or unsending them. This has several negative effects. First, the fact that this capability is available may increase perpetrator utilization of text, knowing that disappearing harassment will be easier to get away with. Further, victims will be less likely to capture the evidence in the short time before the proof is rescinded, but after the damage has already been done. Attorney Michelle Simpson Tuegal who spoke out against this software shared how “victims of trauma cannot be relied upon, in that moment, to screenshot these messages to retain them for any future legal proceedings.”[6] Finally, when the victims are without proof and the perpetrator denies sending, psychological pain may result from such “gaslighting” and undermining of the victim’s experience.[7]

Why are Text Messages so Important?

Text messages have been critical evidence in proving the guilt of the defendant in many types of cases. One highly publicized example is the trial of Michelle Carter, who sent manipulative text messages to encourage her then 22-year-old boyfriend to commit suicide.[8] Not only were these texts of value in proving reckless conduct, they also proved Carter guilty of involuntary manslaughter as her words were shown to be the cause of the victim’s death. Without evidence of this communication, the case may have turned out very differently. Who is to say that Carter would not have succeeded in her abuse by sending and then unsending or editing her messages later?

Text messaging is also a popular tool for perpetrators of sexual harassment, and it happens every day. In a Rhode Island Supreme Court case, communication via iMessage was central to the finding of 1st degree sexual assault, as the 17-year-old plaintiff felt too afraid to receive a hospital examination after her attack.[9] Fortunately, the plaintiff had saved photos of inappropriate messages the perpetrator sent after the incident, amongst other records of their texting history, which properly authenticated the texts and connected him to the crime. It is important to note, however, that the incriminating screenshots were not taken until the morning after and with the help of a family member. This demonstrates how it is not often the first instinct of a victim to immediately memorialize evidence, especially when the content may be associated with shame or trauma. The new iOS feature may take away this opportunity to help one’s case through messages which can paint a picture of the incident or the relationship between the parties.

Apple Recognized That They Messed Up

The current iOS 16 update offering two minutes to recall messages and 15 minutes to edit them is actually an amendment to Apple’s originally offered timeframe of 15 minutes to unsend. This change came in light of efforts from an advocate for survivors of sexual harassment and assault. The advocate wrote a letter to the Apple CEO warning of the dangers of this new unsending capability.[10] While the decreased timeframe that resulted leaves less room for abuse of the feature, editing is just as dangerous as unsending. With no limit to how much text you can edit, one could send full sentences of verbal abuse simply just to later edit and replace them with a one-word message. Furthermore, if someone is reading the harmful messages in real time, the shorter window only gives them less time to react – less time to save the messages for evidence. While we can hope that the newly decreased window makes perpetrators think harder before sending a text that they may not be able to delete, this is wishful thinking. The fact that almost half of young people have reported being victims to cyberbullying when there has been no option to rescind or edit one’s messages shows that the length of the iOS feature likely does not matter.[11] The abilities of the new Apple software should be disabled; their “fix” to the update is not enough. The costs of what such a feature will do to victims and their chances of success in litigation outweigh the benefits to the careless texter.

Notes

[1] Sofia Pitt, Apple Now Lets You Edit and Unsend Imessages on Your Iphone. Here’s How to Do It, CNBC (Sep. 12, 2022, 1:12 PM), https://www.cnbc.com/2022/09/12/how-to-unsend-imessages-in-ios-16.html.

[2] FED. R. EVID. 901(a).

[3] Id.

[4] United States v. Teran, 496 Fed. Appx. 287 (4th Cir. 2012).

[5] State v. Mulcahey, 219 A.3d 735 (R.I. Sup. Ct. 2019).

[6] Jess Hollington, Latest Ios 16 Beta Addresses Rising Safety Concerns for Message Editing, DIGITALTRENDS (Jul. 27, 2022) https://www.digitaltrends.com/mobile/ios-16-beta-4-message-editing-unsend-safety-concerns-fix/

[7] Id.

[8] Commonwealth v. Carter, 115 N.E.3d 559 (Mass. Sup. Ct. 2018).

[9] Mulcahey, 219 A.3d at 740.

[10] Hollington, supra note 5.

[11] 45 Cyberbullying Statistics and Facts to Make Texting Safer, SLICKTEXT (Jan. 4, 2022) https://www.slicktext.com/blog/2020/05/cyberbullying-statistics-facts/.

21st Century Problem: Authentication of Prisoner Facebook Status Updates

March 6, 2013
Criminal Law, Internet, Social Media

by Eric Maloney, UMN Law Student, MJLST Staff

Facebook has become a part of everyday life for people around the world. According to Mark Zuckerberg and Co., over one billion people (yes, with a “B”) are active on Facebook every month, with an average of more than 600 million active users every day in December 2012. Disregarding bogus or duplicate accounts, that means roughly one-seventh of the entire human population is active on Facebook every month (with the world population currently sitting somewhere in the neighborhood of seven billion people).

Apparently, Facebook has become so commonplace and ingrained in the daily routine of some that they feel the need to use the social networking service from the privacy of their prison cells.

A Harlem gang member named Devin Parsons has decided to cooperate with the government against fellow members of his gang, and is currently incarcerated while trial is pending. Instead of having the usual prison contraband smuggled in, he obtained a mobile phone and used it to post Facebook status updates under an assumed name. According to Trial Judge William H. Pauley III:

In some posts, Parsons reflected on his life in jail:

“everybody wanna live but don’t wanna die”;
“Life is crazy thay only miss yu ifyu dead or in jail”; and
“G.o.n.e”

In others, Parsons posted about his cooperation:

“I’m not tellin on nobody from HARLEM but I can give up some bx n****s that got bodys”; and
“be home sooner then yaH hereing 101[.]”

While not exactly “Letter from Birmingham Jail,” Parsons was surprisingly bold about disclosing the fact of his cooperation and about the risk of getting caught with a banned cell phone by the prison administration. The gang against which Parsons is testifying is charged with multiple counts of narcotics trafficking and murder, among other things.

One of the defendants in the case, Melvin Colon, sought to compel the disclosure of these postings under the Brady rule, which requires the government to release evidence to the defense before trial if the evidence is favorable to the defendant. Judge Pauley held that the government was not obligated to turn these postings over to Colon; for various reasons, the government was never in actual possession of the Facebook statuses and therefore had no duty to disclose under Brady.

This case highlights the continually growing relevance that Facebook and other social media data has in legal proceedings. In fact, this is not even the first ruling about Facebook in this case; the defendant Colon had earlier moved to suppress his own Facebook postings which the prosecution sought to introduce. Judge Pauley denied this motion as well, holding that Colon’s sharing of the postings with his Facebook “friends” meant he lacked a reasonable expectation of privacy in them.

A background issue in this case was the idea of authenticity of the Facebook poster; because Parsons was posting under a fake name, both sides were unaware of his conduct until after the account had already been deactivated. While not contested here, ensuring that the Facebook information originated from the user is an increasingly important evidentiary consideration as more and more of this data is used in both civil and criminal contexts.

Professor Ira P. Robbins laid out a possible framework for authenticating social networking evidence in his Minnesota Journal of Law, Science & Technology article “Writings on the Wall: The Need for an Authorship-Centric Approach to the Authentication of Social-Networking Evidence.” While voicing significant concerns about the current lack of a required nexus between the online content and its real-life poster, he proposed detailed admissions criteria for social network postings. He offered several factors to be examined by judges in making rulings about such data, including who owns the account, how secure the account is, and how / when the post in question was created.

As Facebook and other social networking information becomes increasingly important to the outcomes of legal cases, a framework like this is essential to bring our procedures in line with the nature of 21st century evidence and to ensure our system continues to meet Due Process standards. Digital evidence is largely unexplored territory for jurists and scholars alike, and it’s my hope that evidentiary standards like those proposed by Professor Robbins are seriously considered by the legal community.

Growth of Social Media Outpaces Traditional Evidence Rules

November 14, 2012
Internet, Litigation, Social Media

by Sabrina Ly

Evidence from social networking websites is increasingly involved in a litany of litigation. Although the widespread use of social media can lead to increased litigation, as well as increasing the cost of litigation, use of social media has assisted lawyers and police officers in proving cases and solving crimes. In New Jersey, for example, two teenage brothers were arrested and charged with murder of a twelve year-old girl. What led to the two teenagers’ arrest was evidence left behind in their homes along with a Facebook post that made their mother suspicious enough to call the police. In another case, Antonio Frasion Jenkins Jr. had charges brought against him by an officer for making terroristic threats to benefit his gang. Jenkins posted a description of his tattoo on Facebook which stated: “My tattoo iz a pig get’n his brains blew out.” Pig is considered a derogatory term for a police officer.The tattoo also had the officer’s misspelled name and his badge number. The officer who is a part of the gang investigation team saw the Facebook post and immediately filed charges against Jenkins as he interpreted the tattoo as a direct threat against him and his family. These are two of the many situations in which social networking websites have been used as evidence to bring charges against or locate an individual.

The myriad of charges brought against an individual given evidence found on their social networking websites is the basis for Ira P. Robbin’s article “Writings on the Wall: The Need for an Author-Centric Approach to the Authentication of Social-Networking Evidence” published in Volume 13.1 of the Minnesota Journal of Law Science and Technology. Robbins begins by discussing the varying ways in which social networking websites have been used as evidence in personal injury and criminal matters. Specifically, Twitter, Facebook and Myspace postings have been deemed discoverable if relevant to the issue and admissible only if properly authenticated by the Federal Rules of Evidence. However, courts across the country have grappled with the evidentiary questions that are presented by social media. In some states, the court admitted the evidence given distinctive characteristics that created a nexus between the posting on the website and the owner of the account. In other states, the court found the proof of the nexus was lacking. Regardless, overall concerns of potential hackers or fictitious accounts created by a third-party posing as someone else create problems of authentication.

Robbins argues that the traditional Federal Rules of Evidence do not adapt well to evidence from social networking websites. Accordingly, Robbins proposes the courts adopt an author-centric authentication process that focuses on the author of the post and not just the owner of the account. Failing to adopt an authentication method for evidence obtained on social networking websites may create consequences that could harm the values and legitimacy of the judicial process. The ability to manipulate or fake a posting creates unreliable evidence that would not only undermine the ability of the fact-finder to determine its credibility but would also unfairly prejudice the party in which the evidence is presented against.

Technology is an area of law that is rapidly evolving and, as a result, has made some traditional laws antiquated. In order to keep pace with these changes, legislators and lawmakers must constantly reexamine traditional laws in order to promote and ensure fairness and accuracy in the judicial process. Robbins has raised an important issue regarding authentication of evidence in the technological world, but as it stands there is much work to be done as technological advances outpace the reformation of traditional laws that govern it.

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