Authenticating Webpages and Social Media Posts: A Practical Guide Dustin B. Herman is an associate at Spangenberg by Dustin B. Herman, Esq., Jeradon Z. Mura, Esq., and Marie Magner Shibley & Liber. He can be reached at 216.696.3232 or [email protected]

N THE AGE OF AND Below, we provide 8 practical tips for preparing DEEPFAKES, we will continue to see for and overcoming objections to the authenticity 2 Jeradon Z. Mura is an a steady increase in challenges to the of webpages and social media posts. associate at Spangenberg I authenticity of exhibits pulled from the , Shibley & Liber. She especially for printouts/ of webpages and Practical Tip #1: can be reached at Remind Your Judge the Bar for 216.696.3232 or social media posts. With such exhibits, there [email protected] are indeed reasonable questions to be asked: Did Authenticity is Very Low and the this webpage/social media post actually exist--or Ultimate Determination of Authenticity is the exhibit a forgery? Is the exhibit a fair and is for the Jury accurate representation of the webpage/social “The requirement of authentication or media post as it existed--or has it been altered? identification as a condition precedent to Who actually published/authored the original admissibility is satisfied by evidence sufficient to webpage/social media post? support a finding that the matter in question is Luckily, the bar for authenticity is very low. The what its proponent claims." Evid. R. 901(A). judge need only find there is "evidence sufficient • “The evidence necessary to support a finding Marie Magner is a law clerk to support a finding that the matter in question that the document is what a party claims at Spangenberg Shibley & is what its proponent claims." Ohio Evid. R. Liber. She can be reached it to be has a very low threshold, which is at 216.696.3232 or 901(A). The jury will then make the ultimate less demanding than the preponderance of [email protected]. determination of whether the exhibit is what the the evidence." State v. Gibson, 2015-Ohio- proponent claims--which means most objections 1679, ¶46 (6th Dist.) (quoting State v. to authenticity will/should go to weight rather White, 2004-Ohio-6005, 61 (4th Dist.)). 1 than admissibility. See also State v. Padgette, 2020-Ohio-672 The problem is that many defense attorneys will (8th Dist.) ("The hurdle the proponent of not stipulate to anything and judges have wide the document must overcome in order to discretion over authenticity determinations. We properly authenticate a document is not cannot simply print out a webpage and show up great.... The ultimate decision on the weight at trial and expect to have the exhibit admitted. to be given to that piece of evidence is left to the trier of fact.") (quoting , The practical question is: What steps do we need State v. Brown 2002-Ohio-5207, ¶¶33-35 (7th Dist.)); to take to turn a printout of a webpage/social State , 2016-Ohio-693, ¶73 (8th Dist.) media post into a properly authenticated exhibit v. Inkton ("the threshold standard for authenticating at trial? evidence pursuant to Evid. R. 901(A) is low").

CATA NEWS • Spring 2020 27 • "[B]ecause authentication is That burden can be easily satisfied with requires you to bring the witness in live essentially a question of conditional testimony from a person who visited the to testify. But you should make sure the relevancy, the jury ultimately website and printed it/saved it as a PDF. witness is available to testify--and on resolves whether evidence admitted See Evid. R. 901(B)(1) (authentication your witness list--just in case. Of course, for its consideration is that which can be established through "[t]estimony defense counsel may still contest who the proponent claims." State v. that a matter is what it is claimed to authored/published the webpage/social Gibson, 2015-Ohio-1679, ¶47 be."). To do this you need: (1) someone-- media post, and that issue is dealt with (emphasis added) (quoting Lorraine not you--to save the webpage as a PDF;3 below. v. Markel American Insurance Co., and (2) an affidavit from the person that 241 F.R.D. 534, 539 (D.Md.2007)). did so which states--in as much detail Practical Tip #3: Thus, "a trial court 'need not find as possible--how and when the webpage Proving Source Authenticity that the evidence is necessarily what was accessed, how the webpage was saved The proponent of a webpage is usually, the proponent claims, but only that as a PDF, and that the PDF is a fair and but not always, claiming that the webpage there was sufficient evidence that accurate representation of the webpage was authored/published by a specific the jury might ultimately do so.'" Id. at the time it was accessed. Make sure person (e.g., the defendant, a defense (quoting Lorraine, at 542). the judge can track the steps the person expert, a governmental body, a medical took in accessing the website and authority, etc.). Fortunately, "challenges • "[O]nce the prima facie threshold is creating the PDF (e.g., at this date and met, 'the burden of going forward to the authorship of documents... time the affiant used Chrome normally go to the weight rather than with respect to authentication to access the webpage; affiant saved the shifts to the opponent to rebut the admissibility." State v. Bell, 2019-Ohio- webpage as a PDF using the "save as 340, ¶73 (8th Dist.) (quoting State v. prima facie showing by presenting PDF" function (or whatever procedure evidence to the trier of fact which Townsend, 2005-Ohio-6945, ¶¶ 54- the person used); the PDF is a fair and 55 (7th Dist.)). We can often satisfy would raise questions as to the accurate representation of the original genuineness of the document.'" the burden of source authenticity by webpage; and the PDF is attached). The relying on circumstantial evidence-- Gibson, at ¶47 (quoting Hartford PDF itself should contain the full URL e.g., "[a]ppearance, contents, substance, Insurance Co. v. Parker, 6th Dist., of the webpage and the date and time internal patterns, or other distinctive 1982 WL 6662, *7). 4 the webpage was saved as a PDF. characteristics, taken in conjunction Practical Tip #2: The cheapest (free) way to do this is with circumstances", see Evid. R. 901(B) Steps for Proving the Exhibit to have a staff member save/print the (4)--that would allow a reasonable juror is a Fair and Accurate webpage and sign an affidavit. A better to conclude the webpage/social media Representation of a Webpage/ way is to hire a company to the post was published by the purported Social Media Post that Actually webpage and provide an affidavit of the publisher. Id. Exists/Did Exist process they used for doing so. There are Webpages almost always contain indicia The focus of any authenticity analysis many companies out there that provide of authorship (e.g., the defendant's will depend on what the proponent this service (e.g., Hanzo , Inc.). name, logo, physical address, email is claiming the exhibit to be. They usually have their own software address, phone number, location, other "Authentication procedure is a form that creates a highly accurate copy of identifying information, etc.). Indeed, of relevancy; that is, authentication the webpage (much better than using the Eighth District has upheld the connects the particular evidence sought the "save as PDF" function in your admissibility of a plaintiff's webpage to be introduced to the issues or persons web browser). The cost for an affidavit based merely upon an "affidavit involved in the trial." Evid. R. 901, Staff is around $100 per webpage. If live attesting that [the witness] retrieved the Notes. In the context of printouts/ testimony is necessary, that would cost information about [Plaintiff's] Microtel PDFs of webpages and social media extra. Hotels from its web page on the Internet." posts, the proponent is, at a minimum, Following those steps will establish the Kassouf v. White, 8th Dist. Cuyahoga claiming that the exhibit is a fair and fact that the webpage/social media post No. 75446, 2000 WL 235770, *4. More accurate representation of a webpage/ was actually published on the internet at recently, the Sixth Circuit upheld the social media post that actually exists (or a specific point in time--and your judge admission of Facebook evidence based did exist). will likely be annoyed if defense counsel on circumstantial evidence, including an

28 CATA NEWS • Spring 2020 CATA NEWS • Spring 2020 29 "account in defendant's name, an email Practical Tip #4: Practical Tip #5: address with his name and moniker, a Address Authenticity Issues Users Can Download Their location linked to defendant, dates that for a Defendant's Statements Entire Social Media Profiles correspond to witness testimony, and a Through Deposition Testimony, picture of defendant." v. Stipulations, Requests for Authenticating social media evidence Quintana, 763 Fed.Appx. 422, 427 (6th Admissions, or Interrogatories can be more complicated than merely Cir.2019). showing a witness a printout of a Most authenticity issues can be--and Facebook photo or Tweet that includes If you have a particularly skeptical should be--dealt with in advance of an account name and profile picture. judge, you should consider trying to trial. "A member of the Federal Rules See e.g., United States v. Vayner, 769 establish that the defendant registered of Evidence Advisory Committee has F.3d 125 (2d Cir.2014) (prosecution the domain name of the website. For a stated: 'it may be well to remind bench failed to authenticate print out of social quick and dirty reference, try lookup. and bar that in any event the problem media profile bearing defendant's name). icann.org/lookup. Domain registration of authentication or identification However, most social media platforms services like GoDaddy.com act as a should be confronted before actual have a function that allows a user to proxy, publishing their information trial. Whether by interrogatories, download their entire profile, including instead of the private owner of a domain. depositions, requests for admission or- all postings, messages, etc., made on the GoDaddy is responsive to subpoenas -as is most effective--by confrontation platform. The downloaded data will for domain-owner identities and in final pre-trial conference many (if often include information identifying account information. Mail subpoenas not all) problems of authentication the IP addresses and devices used to log- to Compliance Department, GoDaddy. or identification should be isolated on to the account and can be invaluable com, LLC, 14455 North Hayden Rd., and resolved.... In a recent case...the in showing, for instance, that a post Suite 219, Scottsdale, AZ 85260. writer had more than 1100 documents was made at 2 am, from the party's own admitted in a little over two hours. phone, at or near their home. Please Unlike webpages authored by a This was possible because Judge Fullam note, however, that the downloaded data defendant, government websites--and ordered that counsel should meet before will not include deleted posts or deleted the rules and regulations published the final pre-trial conference to mark all direct message conversations, nor any by governmental and administrative documents and resolve all problems of indication of whether something was bodies--are self-authenticating under authenticity or identity.'" Ohio Evid. R. deleted. Evid. R. 902(5). , 2008- State v. Frakes 901, Staff Notes. Ohio-4204, ¶44 (5th Dist.) ("The You should consider sending a request NHTSA manual qualifies as a self- You can authenticate a defendant's for the defendant to produce the relevant authenticated exhibit under Evid. R. current webpages, past webpages, social data from their social media platform(s)- 902(5) and as such, extrinsic evidence media posts, etc., by: (1) having the -and include instructions in the request is not required."). See also Sannes v. defendant authenticate the exhibit at for how the defendant can and should Jeff Wyler Chevrolet, Inc., 1999 WL the defendant's deposition; (2) serving download their social media platform: 33313134, *3 (S.D.Ohio) ("The FTC requests for admissions--"A party may press releases, printed from the FTC's serve upon any other party a written • Facebook: Go to Settings > government page, are request for the admission... of... the Your Facebook Information > self-authenticating official publications genuineness of any documents described Download Your Information. under Rule 902(5) of the Federal Rules in the request[.]" Ohio Civ. R. 36(A); Select the relevant date range and of Evidence."). (3) interrogatories; or (4) getting a information to include, and click stipulation in advance of trial. "Create File." The resulting zip file You can use the rules and circumstantial can then be shared with all relevant evidence connecting the webpage to the Moreover, the Ohio Supreme Court has parties. purported author to satisfy the low held that any documents produced by authenticity burden. If the defendant a party in discovery will be considered • Instagram: From the profile page, select the Settings gear > Privacy wants to argue to the jury that the authentic. Columbus City Schools Bd. and Security > Request Download webpage was authored by someone else of Education v. Franklin Cty. Bd. of under the Date Download section. they are free to do so, but that should not Revision, 2020-Ohio-353, ¶22 (Ohio). affect the admissibility of the exhibit.

CATA NEWS • Spring 2020 29 • Twit ter: Select "More" in the https://harvardlawreview.org/2014/03/ Archive"). See Wensink Farm Seeds, Inc. left-hand menu > Settings and perma-scoping-and-addressing-the- v. Lafever, No. 16-CV-1282, 2017 WL privacy > Account > Your problem-of-link-and-reference-rot-in- 2735573, *6 (N.D.Ohio 2017) ("'the data. Enter the password under legal-/. ... has been found to "Download your Twitter Data" and be an acceptable source for the taking select "Request Archive." If you are seeking to admit a printout of judicial notice.'") (citations omitted); of a webpage that is no longer available, Pohl v. MH Sub I, LLC, 332 F.R.D. • WhatsApp uses end-to-end you may run into problems because the 713, 716 (N.D.Fla.2019) ("This Court encryption and does not store court can no longer verify the existence follows the lead of the overwhelming messages or transaction logs of the webpage by simply visiting it." number of courts that have decided anywhere except on a user's device. [T]he attached press release here did not the issue and takes judicial notice of WhatsApp was purchased by contain a web address to its location on the contents of Wayback Machine Facebook in 2014. In the app go the Ohio Attorney General's website. evidence because they 'can be accurately to Settings > Account > Request Moreover, a search of that website did and readily determined from sources Account Info > Request Report. not locate the press release. Therefore, whose accuracy cannot reasonably be we hold that the attached press release questioned.' Fed. R. Evid. 201(b)(2)."). If you use social media, go through the does not satisfy the condition precedent download process for your own account of authenticity, and as a result is Thus, for those courts willing to take and get familiar with how it works--and inadmissible as evidence." Residential judicial notice of the Wayback Machine, what information you can and cannot Funding Co. v. Thorne, 2012-Ohio- to properly authenticate a webpage from get from different platforms. Note that 2552, ¶30 (6th Dist.). See also Qiu Yun the Wayback Machine all you need is an most social media companies are not Chen v. Holder, 715 F.3d 207, 212 (7th affidavit from the person who saved the keen on providing social media records Cir.2013) (Posner, J.) ("A document webpage from the Wayback Machine, or authenticating contents thereof--so posted on a government website is and you're good to go (although source do not count on them to simplify your presumptively authentic if government authenticity--that is, the author of the authentication process. If you obtain sponsorship can be verified by visiting original webpage--might still be an social media content other than through the website itself."). issue). To gauge the level of scrutiny discovery from a defendant, you will your judge will apply to Wayback need to authenticate it similarly to other You can avoid those issues by creating a Machine evidence, you should simply webpages. permanent record of the website using an ask your judge in advance of trial if they archival service like Harvard's Perma.cc, are familiar with the Wayback Machine. Practical Tip #6: which allows you to make customized Avoid Problems of "Link Rot" permanent records of webpages (the Practical Tip #8: and "Reference Rot" By first 10 are free, but after that you will be If a Court Will Not Take Creating a Permanent Record charged a fee). The Wayback Machine Judicial Notice of the Wayback of a Webpage with Harvard's has a similar "Save Page Now" feature. Machine, You Can Get an Perma.cc or a Similar Archival Affidavit Directly from the Service Practical Tip #7: Wayback Machine An Increasing Number of Websites are inherently dynamic. They Courts Will Take Judicial For courts that will not take judicial are constantly changed, updated, and Notice of the Wayback notice of the Wayback Machine's deleted. There are two primary issues Machine/Internet Archive reliability, you will need additional that arise with older web content--link evidence to authenticate its results. The rot and reference rot. Link rot occurs If the web content was changed or Second, Third, and Seventh Circuit when a URL is broken and no longer deleted before you could preserve it courts and a number of district courts pulls up content (think a "404: Page Not yourself, we highly recommend taking ask for an affidavit from a person Found" warning). Reference rot occurs advantage of the Wayback Machine. If with knowledge of how the Wayback when a URL is still active but the content you are not familiar with the Wayback Machine works.5 to which it links has changed. Reference Machine, you need to be. Courts across rot is actually a huge problem. Indeed, the country have taken judicial notice of Due to the number of affidavit requests "50% of the URLs within U.S. Supreme the contents of the Wayback Machine it receives, the Internet Archive Court opinions suffer reference rot." See (which is also known as the "Internet established a system for responding to

30 CATA NEWS • Spring 2020 CATA NEWS • Spring 2020 31 them for a fee. Requesters take the first The requested URLs must be sent End Notes step by submitting payment and a list electronically to the Internet Archive 1. Authenticity challenges “normally go to the 6 weight of the evidence the trier of fact should of desired URLs to be provided. The at [email protected]. An extended URL place on the evidence rather than their Internet Archive will respond to any must be provided for every desired page, admissibility.” State v. Brown, 2002-Ohio- requests deemed reasonable. even if they fall under a single domain. 5207, ¶ 40 (7th Dist.). While the Internet Archive does not set 2. To be clear, there are obviously other A Wayback Machine affidavit costs objections under the rules of evidence a hard limit on how many URLs can (e.g., hearsay, relevance, 403, etc.) that $250 plus $20 per requested URL be requested, it will refuse any request must also be overcome before an exhibit ($30 for those with downloadable or can be admitted into evidence. This article deemed unreasonable. focuses solely on overcoming challenges to printable files, like . files). There is authenticity. an additional $100 fee for notarization The Internet Archive makes no 3. Here we use “PDF,” but it could also be saved which must be expressly requested if guarantees for response time but tries as a JPEG or another type of electronic file or desired. The Internet Archive accepts to turn these requests around in fifteen printed directly to a hard copy exhibit. payment via check or PayPal. Checks business days. The Internet Archive 4. “[C]ourts have considered website print- outs sufficiently authenticated where the can be sent to Internet Archive, 300 sends the requested documents by proponent declared that they were true and Funston Avenue, San Francisco, CA regular mail but will use FedEx if a correct copies of pages on the internet and 94118. If using PayPal, send payments FedEx account number is provided by the print-outs included their webpage URL address and the dates printed.” Haines v. to [email protected] through http:// the requester. It will not send documents Home Depot U.S.A., Inc., 2012 WL 1143648, www.paypal.com. Immediately send by fax. You can learn more information *7 (E.D.Ca. 2012). a confirmation of payment email to at http://www.archive.org/legal. 5. See., e.g., Specht v. Google Inc., 747 F.2d 929, 933 (7th Cir. 2014); [email protected] referencing your United States v. * * * Bansal, 663 F.3d 634, 667-68 (3d Cir. 2011); affidavit request. Whether through United States v. Gasperini, 894 F.3d 482, 490 mail or PayPal, payments absolutely (2d Cir. 2018); My Health, Inc. v. GE, W.D. The bottom line is that you must Wis. No. 15-cv-80-jdp, 2015 U.S. Dist. LEXIS must reference the affidavit request and prepare in advance of trial to overcome 172252 at *10 (Dec. 28, 2015); St. Luke’s additional information so the Internet Cataract & Laser Inst., P.A. v. Sanderson, objections to authenticity of webpages M.D. Fla. No. 8:06-cv-223-T-MSS, 2006 Archive can match your payment with and social media posts. We hope these U.S. Dist. LEXIS 28873 at *6 (May 12, 2006). your requested URLs. Due to being tips will help you in your practice! ■ 6. Pages found on the Wayback Machine will stiffed in the past, the Internet Archive have a URL similar to http://web.archive.org/ will not process requests without first web/19970126045828/http://www.archive. org/. receiving payment.

Editor’s Note

As we finalize this issue of the CATA News, we invite you to start thinking of articles to submit for the Winter 2020-2021 issue. If you don’t have time to write one yourself, but have a topic in mind, please let us know and we’ll see if we can find a volunteer. We would also like to see more of our members represented in the Beyond the Practice section. So please send us your “good deeds” and “community activities” for inclusion in the next issue. Finally, please submit your Verdicts & Settlements to us year-round and we will stockpile them for future issues. From everyone at the CATA News, we hope you enjoy this issue! Kathleen J. St. John, Editor

CATA NEWS • Spring 2020 31