Unpublished Paper
Writings on the Wall: The Need for an Authorship-Centric Approach to the Authentication of Social-Networking Evidence
Washington College of Law Research Paper No. 2011-31
(2011)
Abstract
People are stupid when it comes to their online postings. The recent spate of
social-networking websites has shown that people place shocking amounts of
personal information online. Unlike more traditional modes of communication, the
unique nature of these websites allows users to hide behind a veil of anonymity.
But while social-networking sites may carry significant social benefits, they also
leave users—and their personal information—vulnerable to hacking and other
forms of abuse. This vulnerability is playing out in courtrooms across the country
and will only increase as social-networking use continues to proliferate.
This Article addresses the evidentiary hurdle of authenticating socialnetworking
evidence, a novel legal issue confronting courts today. The Article
explains and critiques four approaches used by different jurisdictions, concluding
that each approach fails to adequately address the critical issue of authorship. The
anonymous nature of social-networking websites, coupled with the extent of users’
personal information available online, raises serious concerns about the authorship
of any piece of evidence posted to one of these sites. Litigants are using socialnetworking
postings in court, attributing authorship to a particular person without
demonstrating a sufficient nexus between the posting and the purported author.
Absent this nexus, however, the evidence fails to meet even the low hurdle of
authentication. To remedy this problem, this Article proposes that courts shift their
focus from account ownership and content to authorship of the evidence. Working
within the existing rules of evidence, this approach underscores the importance of
fairness and accuracy in the outcome of judicial proceedings that involve socialnetworking
evidence.
Keywords
- Social Networking,
- Social Media,
- Online Postings,
- Authentication,
- Evidence
Disciplines
Publication Date
2011
Citation Information
Ira P Robbins. "Writings on the Wall: The Need for an Authorship-Centric Approach to the Authentication of Social-Networking Evidence" Washington College of Law Research Paper No. 2011-31 (2011) Available at: http://works.bepress.com/ira_robbins/94/