United States: Pennsylvania Superior Court Looks To Electronic Media Precedent To Adopt A Standard For Authenticating Social Media Posts

Last Updated: July 25 2019
Article by Michael Witsch

On March 15, 2018, as a matter of first impression, a unanimous panel of the Superior Court of Pennsylvania looked largely to other decisions of that court and to the Pennsylvania Rules of Evidence to adopt a standard for authenticating social media posts for use as evidence. In Commonwealth v. Mangel, 2018 PA Super 57, ___ A.3d ___ (2018), the three-judge panel affirmed an Erie County trial court's decision to bar the introduction of Facebook posts and messages from an account allegedly owned by Tyler Mangel, who had been charged with aggravated and simple assault, as well as harassment, growing out of a fight at a party in 2016. The Court held that the trial court had appropriately looked to the Superior Court's decision in Commonwealth v. Koch, 39 A.3d 996, 1005 (Pa. Super. 2011), aff'd by an equally divided court, 106 A.3d 705 (Pa. 2014), for guidance and as controlling legal precedent in Pennsylvania for the authentication of electronic communications to hold that such requirements apply to social media posts. The Mangel Court interpreted Koch as requiring a proponent of social media posts as evidence to provide direct or circumstantial evidence that the defendant in fact authored those posts.

In considering pre-trial motions in limine, the trial judge had barred social media posts belonging to an account named "Tyler Mangel" because the Commonwealth failed to provide any evidence to establish to a degree of reasonable certainty that the Facebook posts and messages it wanted to authenticate and introduce into evidence were actually authored by Mangel or belonged to an account he operated. The social media evidence the government sought to introduce included several online and chat messages addressing the apparent altercation at the party, which were sent from the Tyler Mangel account, as well as a photograph of bloody hands from a separate account. The Commonwealth's forensic expert testified that the screenshots of the messages came from the Tyler Mangel account. Additionally, that account listed the same hometown and high school as the defendant, had registered to emails "Mangel17@facebook[.com]" and "Tylertkm@hotmail.com," and was linked to phone number that belonged to Stacy Mangel, who lived at the same address as the defendant. However, outside of the account information itself, the expert could not provide any evidence to establish the defendant operated the account or authored the posts. Furthermore, on cross-examination the expert stated he did not obtain the IP address of the Facebook account, which could have been used to link the account to Mangel, and based his conclusion solely on the aforementioned account information and phone records. After determining the Commonwealth could not authenticate the posts with a reasonable degree of certainty, the trial court denied the introduction of the posts.

On appeal, the Superior Court looked to its decision in Koch, which addressed authenticating text messages into evidence, as well as In the Matter of F.P., 787 A.2d 91 (Pa. Super. 2005), which addressed authenticating instant messages, to determine whether the posts had been properly excluded at the trial court. In F.P., the Court noted process of authenticating electronic communications should be considered on a case-by-case basis based on the existing Pennsylvania case law and Pennsylvania Rule of Evidence 901. The Court did not conclude electronic communications were any more or less reliable than traditional means of communications such as writing letters, because traditional letters could just as easily be forged. Similarly, the Koch Court required "[c]ircumstantial evidence, which tends to corroborate the identity of the sender" to authenticate a text message. The Mangel Court adopted the same standard used in Koch and F.P. to determine the standard for authenticating social media posts. The Court specifically noted "the same authorship concerns, as expressed by the Koch Court in relation to e-mails and instant messages, exist in reference to Facebook and other social media platforms, that can be accessed from any computer or smart phone with the appropriate user identification and password."

Finding Koch controlling, the Court determined the trial court properly excluded the evidence in question because the Commonwealth never offered any evidence, either circumstantial or direct, to substantiate its claim Mangel authored the Facebook posts in question or controlled the account that posted the content. The chats themselves did not provide any contextual clues Mangel authored the posts or that the content of the posts were in any way related the criminal complaint filed against Mangel. Additionally, the Commonwealth's expert witness failed to provide any evidence independent of the account profile to authenticate the posts. The "mere fact" the account was in Mangel's name and listed the same hometown and high school as the defendant was insufficient to prove he authored the account.

Although in this particular case the Superior Court determined the Facebook posts could not be authenticated, the standard adopted in Mangel is hardly prohibitive. In fact, the Superior Court favorably cited the Third Circuit's decision in United States v. Browne, 834 F.3d 403 (3d Cir. 2016), which permitted the admission of properly authenticated social media posts. The Superior Court distinguished the Third Circuit's authentication of the social media posts in Browne by noting the extensive evidence the government proffered in Browne to authenticate the defendant as the author of the posts in question, including the defendant's own testimony, testimony of the recipients of several message, and a certificate attesting the government obtained the logs directly from Facebook.

In light of Browne and the existing Superior Court precedent, the key takeaway from Mangel is that Rule 901 requires a proponent of social media evidence to proffer evidence, either direct or circumstantial (for example, through contextual clues in the post or forensic evidence beyond the content of the account itself), that corroborates the authorship of a social media post. Merely linking a post to an account will not be found to link the post to an individual unless the proponent can link the individual to the control of the account. Although the authentication of social media posts is a matter of first impression, the standard adopted in Mangel is hardly new. Mangel merely represents the Superior Court's explanation that standards of authenticity announced in prior decisions would apply equally to evidence of all types, including even more modern forms of evidence such as online messages and posts. Given the significance of this issue, and the fact that the Supreme Court of Pennsylvania has yet to weigh in on its merits, it would not be surprising to see the Commonwealth seek further review of the panel's decision. For now, however, Mangel provides Pennsylvania litigants with the roadmap for properly authenticating online data such as Facebook posts.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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