As the use of social media in court becomes more common, a recent decision from the Second Circuit serves as a reminder that, like any other evidence, evidence of social media must be authenticated properly under Federal Rule of Evidence (FRE) 901 before it can be admitted into evidence.

In United States v. Vayner, the defendant was convicted after a jury trial for transferring a false identification document (No. 13-803-cr, (2d Cir. Oct. 3, 2014)). At trial, the prosecution introduced into evidence a printout of a web page which purported to be the defendant's profile on a Russian website similar to Facebook. The district court admitted the printout over the defendant's objection that it had not been properly authenticated under FRE 901.

The defendant appealed and argued that the trial court erroneously admitted the web page into evidence because it was not authenticated properly. The Second Circuit agreed, finding that there was insufficient evidence that the web page was created by or on behalf of the defendant, and vacated the conviction.

The Second Circuit noted that there was no evidence in the record that:

The Second Circuit rejected arguments that the web page could be authenticated because it had "distinctive characteristics," noting that the information on the web page, such as the defendant's name, Skype username and employment history, was general and likely known by others. The court also stated that none of the categories of self-authenticating evidence set out in FRE 902 applied to the web page.

Although the Second Circuit declined to state what would be sufficient to authenticate the web page and instead noted that authentication always depends on context, other courts have taken different approaches. For example, in US v. Hassan, the Fourth Circuit held that screen shots of Facebook pages and YouTube videos retrieved from a Google server were self-authenticating business records under FRE 902(11) when accompanied by certifications from Facebook and YouTube records custodians (742 F.3d 104, 132-33 (4th Cir. 2014)).

For more information on authenticating social media, see Practice Note, Social Media: What Every Litigator Needs to Know: Authenticating Social Media.

For more information on authenticating documents in federal court generally, see Practice Note, Evidence in Federal Court: Basic Principles: Documents and Other Tangible Evidence Must Be Authenticated and Using Documents as Evidence Checklist (Federal).