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 ofsocial-networking websites has shown that people place shocking amounts ofpersonal information online. Unlike more traditional modes of communication, theunique nature of these websites allows users to hide behind a veil of anonymity.But while social-networking sites may carry significant social benefits, they alsoleave users—and their personal information—vulnerable to hacking and otherforms of abuse. This vulnerability is playing out in courtrooms across the countryand will only increase as social-networking use continues to proliferate.This Article addresses the evidentiary hurdle of authenticating socialnetworkingevidence, a novel legal issue confronting courts today. The Articleexplains and critiques four approaches used by different jurisdictions, concludingthat each approach fails to adequately address the critical issue of authorship. Theanonymous nature of social-networking websites, coupled with the extent of users’personal information available online, raises serious concerns about the authorshipof any piece of evidence posted to one of these sites. Litigants are using socialnetworkingpostings in court, attributing authorship to a particular person withoutdemonstrating a sufficient nexus between the posting and the purported author.Absent this nexus, however, the evidence fails to meet even the low hurdle ofauthentication. To remedy this problem, this Article proposes that courts shift theirfocus from account ownership and content to authorship of the evidence. Workingwithin the existing rules of evidence, this approach underscores the importance offairness and accuracy in the outcome of judicial proceedings that involve socialnetworkingevidence.