With the Internet now saturating everyday life, it is hard to believe that only 15 years ago a federal court in Texas classified Internet evidence as "voodoo information" that was "inherently untrustworthy" and impossible to authenticate.
United States District Judge Samuel B. Kent classified "this so-called Web" as "one large catalyst for rumor, innuendo, and misinformation," since "[a]nyone can put anything on the Internet." More specifically, "[n]o web-site is monitored for accuracy and nothing
contained therein is under oath or even subject to independent verification absent underlying documentation." Simply put, "hackers can adulterate the content on any
web-site from any
location at any
time." (St. Clair v. Johnny's Oyster & Shrimp, Inc.
, 76 F. Supp. 2d 773, 774-75 (S.D. Tex. 1999).)
Such skepticism later reached the Golden State. Four years ago, one of California's foundational decisions on the topic echoed the St. Clair
holding, adding that any digital photograph "can be changed to produce false images" without "skill, experience, or even cognizance" by using computer programs such as Adobe Photoshop. (People v. Beckley
, 185 Cal. App. 4th 509, 515 (2010).) The court proceeded to exclude MySpace photographs from evidence.
Distrust of new technology is nothing new; after all, courts once required submitting the negative along with the photograph itself to prove that "neither retouching [n]or other manual or chemical intervention was reflected" in a proffered exhibit. (United States v. Hobbs
, 403 F.2d 977, 978 (6th Cir. 1968).) As photographic evidence became mainstream, however, the burden shifted. Now what's required for a prima facie case is simply that a proponent's photograph reflect "an accurate representation of the scene in question." A recent example comes from the California Supreme Court, which upheld the authentication of red-light traffic camera images. (See People v. Goldsmith
, 59 Cal. 4th 258 (2014) (stating that a photograph is essentially a "silent witness" of the photograph's content, which is "more accurate and reliable [than] a human witness").)
As with photographic evidence, judicial skepticism and caution about the Internet are starting to crumble under its impact. Indeed, the Internet often plays some role, if only a tangential one, in practically every piece of litigation on a court's docket. The statistics are truly mind-boggling: Every second of every day 571 new websites are created, along with 2 million Google queries and 684,478 Facebook posts, according to a 2013 report by Mist Media Group.
Because Internet evidence is becoming ubiquitous and commonplace even in legal proceedings, courts are becoming at least slightly less formalistic and more understanding - allowing the admission of the evidence "[a]s long as the evidence would support a finding of authenticity" and any "conflicting inferences [go to] ... the document's weight
as evidence, not its admissibility
." (People v. Valdez
, 201 Cal. App. 4th 1429, 1435 (2011).) Although the courts have recognized that Internet content can be hijacked by third parties, a proponent's burden is no longer to establish "validity or negate falsity in a categorical fashion, but rather to make a showing on which the trier of fact reasonably could conclude the proffered writing is authentic." (Valdez
, 201 Cal. App. 4th at 1436-37.)
Many California courts have embraced this progressive mentality. In one case, for example, the court did not require a proponent to "disprove all possibility of alteration and forgery" of a document, but rather to make "a preliminary showing the writing is what it purports to be." (People v. Boner
, 2012 WL 4044546, at *10 (Cal. Ct. App.) (gang evidence from various websites).) However, other judges have dug in their heels, seeking definitive proof that the piece of Internet evidence was not "faked" or "manipulated." (See People v. Valdez
, 2013 WL 1770856, at *17 (Cal. Ct. App.) (MySpace photographs should have been excluded).) Another court held that the photographs on a cell phone were more reliable because they were not downloaded from the Internet. (People v. Blanchette
, 2014 WL 718414, at *6 (Cal. Ct. App.).)
But the question remains: How does one authenticate online evidence?
In the current landscape, attorneys should ask themselves three questions when seeking to admit any piece of evidence from the Internet:
What is the particular item of evidence?
Does the exhibit (or testimony supporting it) fairly and accurately reflect its content?
Is the content attributable to the owner or poster, as opposed to being the product of forgery or tampering?
This last question is key. Simply laying the foundation for the first two elements will be insufficient, as appellate courts have noted. (See Beckley
, 185 Cal. App. 4th at 517-18 (excluding gang roster from a third-party website because the expert "admitted that he did not know who authored the roster," but believed it was "a roster of ... gang members that they themselves put together").)
Accordingly, courts have come to rely on three sources when evaluating whether a trier of fact could reasonably conclude that a piece of Internet evidence is attributable to its owner. The first is testimony from an expert showing the absence of manipulation or corruption. Second is testimony from a witness with personal knowledge of the content, such as the website owner or a webmaster who maintains the website. And third, judges have relied on circumstantial evidence of sufficient reliability as to meet the burden of proof. Indeed, the Evidence Code does not limit the means for authenticating a writing, but these are the primary methods the courts have turned to. (See Cal. Evid. Code § 1410.)
It should be noted, however, that the first two sources - testimony from an expert or from someone with personal knowledge - though more direct, are not always available to the proponent of the evidence. In fact, "[d]etecting modifications of electronic evidence can be difficult, if not impossible." (James V. Masella III, The Use and Admissibility of Evidence from the Internet
, New Developments in Evidentiary Law in New York, 2011 WL 1574296, at *11 (Aspatore 2011).) Likewise, it could be that the only witnesses with personal knowledge are webmasters employed by the opposing party. In such an instance, unless the evidentiary proponent otherwise has "personal knowledge of who maintains the website, who authorized the documents, or the accuracy of their contents," the piece of Internet evidence cannot be authenticated as statements by the alleged owner. (See Wady v. Provident Life & Accident Ins. Co. of Am.
, 216 F. Supp. 2d 1060, 1064 (C.D. Cal. 2002) (refusing to authenticate documents from a company website); Costa v. Keppel Singmarine Dockyard PTE, Ltd.
, 2003 WL 24242419, at *7 n.74 (C.D. Cal.) (failing to "proffer the testimony of a ... representative attesting that the information on the website was placed there by the corporation").)
It is insufficient to simply rely on printouts bearing a URL address and date stamp. (See In re Homestore.com, Inc. Sec. Litig.
, 347 F. Supp. 2d 769, 782-83 (C.D. Cal. 2004) (excluding press and earnings releases, despite bearing URL address and date stamp, because plaintiff failed to provide testimony of "someone with knowledge," such as the company's webmaster); but see Perfect 10, Inc. v. Cybernet Ventures, Inc.
, 213 F. Supp. 2d 1146, 1154 (C.D. Cal. 2002) (admitting screen shots from website coupled with download dates, Web addresses, and declaration that the screen shots were true and correct copies).)
Also, such information cannot be judicially noticed because "a company's website is often a marketing tool" that may be "full of imprecise puffery that no one should take at face value." (Victaulic Co. v. Tieman
, 499 F.3d 227, 236 (3d Cir. 2007).)
Utilizing the Context
The growing and cutting-edge area of authentication involves the third catch-all category, permitting the use of circumstantial evidence - and it is limited only by the discretion of the court and the creativity of counsel. Attorneys can meet their burden of supporting a finding of authenticity by relying on the content of the evidence itself, any distinctive characteristics, and/or external corroborating evidence or circumstances. For example, documents from a government website are categorically distinctive and are usually considered to be self-authenticating.
"Dot-gov" websites are from a "top level domain" that is maintained and operated by the General Services Administration (41 C.F.R. Â§ 102-173.5.), which make them inherently reliable, as far as courts are concerned. (See Child Support Enforcement Agency v. MSH
, 2013 WL 1829647, at *4 (Haw. Ct. App.) (affirming admissibility of documents printed from ".gov" website).)
Social Media Examples
Case law involving social media is particularly rich with examples of authentication by circumstantial evidence. For example, in the 2011 Valdez
decision, the court of appeal affirmed the authentication of a MySpace webpage to prove gang affiliation based on extensive cross-references between the content of the MySpace page and external corroboration: The defendant did not dispute that his face appeared in the ownership icon or that he appeared in a posted photograph flashing an alleged gang sign. In support of gang affiliation, the court noted that the defendant's hand gesturing in the photograph appeared to be "precise" and "definite," suggesting it was intentional rather than accidental. The page also included several greetings from the defendant's sister and friends addressing him by name and relation. Likewise, the MySpace page listed several interests that matched known interests of the defendant, including references to the gang in question. (Valdez
, 201 Cal. App. 4th at 1436.)
Considering these cross-references - along with the key feature that MySpace pages are password-protected by owners against others' posting and deleting content - the court held that the circumstantial evidence "strongly suggested" that the defendant owned the MySpace page, "rather than someone else by the same name, who happened to look just like him." Although the defendant was free to argue otherwise to the jury, the court of appeal affirmed the trial court's admission of the page because "a reasonable trier of fact could conclude from the posting of personal photographs, communications, and other details that the MySpace page belonged to him." (Valdez
, 201 Cal. App. 4th at 1435.)
In a more recent case, the court of appeal affirmed the authentication of a MySpace page as the defendant's by reviewing correlating evidence of the MySpace page owner's travel plans and knowledge of key events. The court recognized that while "hacking may occur" and documents "may not be what they seem," there was a sufficient showing on which a jury "could conclude the proffered writing [was] authentic." (People v. McKinney
, 2013 WL 1281559, at *18, 19 (Cal. Ct. App.).)
Despite growing acceptance and flexibility, not all California courts are comfortable relying on circumstantial evidence to authenticate Internet evidence. Thus, the precise level of proof required to support a finding of authenticity remains hazy. For example, last year an appellate panel affirmed the exclusion of a Facebook photograph because the witness had no personal knowledge about who took the photo, or the name of the person who posted it. (People v. Castrejon
, No. B239024, 2013 WL 2243876, at *4 (Cal. Ct. App.).)
Certainly, the Internet is no longer considered "voodoo information." Nevertheless, until the dust settles and courts set more definitive boundaries, it's best to be conservative, using as many means as possible to demonstrate authenticity in accordance with each court's comfort zone. (Just as the strike zone may fluctuate from one umpire to the next, so too will different judges have different levels of ease with Internet evidence.)
Authenticity is often the central issue in determining the admissibility of evidence. When analyzing admissibility of a specific piece of evidence, lawyers must be careful not to succumb to tunnel vision. Specifically, lawyers must not "focus exclusively on one of several possible grounds for objection to proffered evidence, overlooking other valid grounds." (Wegner, Fairbank, Epstein & Chernow, Cal. Prac. Guide: Civil Trials & Evidence
(The Rutter Group 2013) § 8:30.)
For example, content on a company's home page is obviously hearsay because - like all Internet writings - it is inherently an out-of-court statement. (Cal. Evid. Code § 1200.) However, it's possible to overcome this objection by requesting judicial notice, offering the evidence for a purpose other than for its truth, or finding an appropriate hearsay exception. The principal exceptions include party admissions; business records; public records; or using the item as a basis for expert opinion. (See Cal. Evid. Code §§ 451, 452 (judicial notice); § 1220 (party admission); § 1271 (business records); § 1280 (public records); People v. Gardeley
, 14 Cal. 4th 605, 618 (1996) ("So long as [the] threshold of reliability is satisfied, even matter that is ordinarily inadmissible
can form the proper basis for an expert's opinion testimony," which he or she can "describe" while testifying.).)
Ultimately, however, it is up to the attorney offering the evidence "to consider and be prepared to meet all
possible grounds for objection," not just the obvious ones. (See People v. Ibarra
, 2012 WL 2128016, at *5-6 (Cal. Ct. App.) (considering relevance and Rule 352 concerns in addition to authenticity of MySpace photographs); United States v. Winters
, 530 F. Appx. 390, 395 (5th Cir. 2013) (finding photographs irrelevant and prejudicial under Rule 352 because of the government's inability to prove authenticity).)
When all is said and done, the Internet must be embraced by all officers of the court, including attorneys. This adaptation and flexibility is necessary because the Internet is the new reality, and its possibilities and usefulness are still growing, day by day.
Christina Lincoln is a business litigation associate at Newmeyer & Dillion in Newport Beach.