Writings on the Wall: The Need for an Authorship-Centric Approach to the Authentication of Social-Networking Evidence

Abstract

People are stupid when it comes to their online postings. The recent spate of social-networking websites has shown that people place shocking amounts of personal information online. Unlike more traditional modes of communication, the unique nature of these websites allows users to hide behind a veil of anonymity. But while social-networking sites may carry significant social benefits, they also leave users - and their personal information - vulnerable to hacking and other forms of abuse. This vulnerability is playing out in courtrooms across the country and will only increase as social-networking use continues to proliferate.

This Article addresses the evidentiary hurdle of authenticating social-networking evidence, a novel legal issue confronting courts today. The Article explains and critiques four approaches used by different jurisdictions, concluding that each approach fails to adequately address the critical issue of authorship. The anonymous nature of social-networking websites, coupled with the extent of users’ personal information available online, raises serious concerns about the authorship of any piece of evidence posted to one of these sites. Litigants are using social-networking postings in court, attributing authorship to a particular person without demonstrating a sufficient nexus between the posting and the purported author. Absent this nexus, however, the evidence fails to meet even the low hurdle of authentication. To remedy this problem, this Article proposes that courts shift their focus from account ownership and content to authorship of the evidence. Working within the existing rules of evidence, this approach underscores the importance of fairness and accuracy in the outcome of judicial proceedings that involve social-networking evidence.