Social media once referred to MySpace. Now it refers to Facebook, Instagram and Twitter, among others. The amount of content posted on these sites is substantial.
When a social media post is made, it generally (but not always) involves human input. This means the person responsible for the post has used a physical device to enter or “post” digital content. But sometimes connecting the post to the accused is not as simple as it sounds.
What if the account owner denies making the post? What if the accused is not the owner of the account? What steps can be taken to eliminate alternative users or other possibilities so as to prove by a preponderance of the evidence that the account owner posted the information?
It is worth noting that these questions are less about authentication than they are about proof and evidentiary weight. Where someone denies using a computer or phone to post information, the argument is not necessarily that the post is not an authentic duplication of what appears on the social media site. Rather, the argument is that the authentic reproduction is not relevant because it was not posted by the accused person.
As an initial matter, many laws protect the privacy of information gathered by social media companies about their users. As such, these companies are somewhat protective of the data they possess and are often quite resistant to providing it, even where a subpoena is served. For example, the primary statute affecting discovery of social media is the Stored Communications Act (“SCA”), 18 USC §§ 2707-2711, which is part of the Electronic Communications Privacy Act enacted in 1986. The SCA provides a framework through which electronic data service and storage providers can determine what they may disclose in response to a valid subpoena.
For example, Facebook will provide basic user account data in response to a valid subpoena, (which must be domesticated in California). However, Facebook will fight any attempt to compel production of data in an account, e.g., wall posts, messages, photos, etc. Facebook relies directly on the SCA for its non-disclosure position, which it explains in a help page at the following address: https://www.facebook.com/help/133221086752707
However, even if Facebook does not provide the information to third-parties, it does provide information to its own users when the user requests the information. This is important because it means that discovery requests directed to the user (rather than Facebook) provide an alternative means for obtaining the Facebook information. Facebook facilitates this process by providing users with an easy-to-use “download my information” tool. After downloading the information, the user can provide the downloaded information to an adverse party in response to a valid discovery request.
Deleted Data. Unfortunately, if the user deletes data from Facebook, it is only available for 90 days after it is deleted. This makes it unlikely that a deleted social media post can be recovered through Facebook unless a litigant works quickly and proactively to obtain the download.
To address this issue, it is best to send an adverse party a request for production of social media information as soon as possible and to request the data in native format. The information supplied by Facebook to the user is in the form of a zip file, so this is the file type practitioners should look for after requesting production of this type from an adverse party.