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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions