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Anything You Say Can Be Used Against You – Even On Social Media

We’ve all been warned plenty of times that poor conduct on social media sites can have adverse consequences in the employment world.  But going a step further, can such conduct become evidence against us in a criminal prosecution?  In one ongoing federal prosecution, several individuals are charged with terrorist conspiracy.  Part of the government’s evidence against them?   The fact that they “liked” on Facebook a group which allegedly supported terrorism.

The terrorism prosecution indicates that at least the federal government is ready and willing to use social media activity as evidence.  That means a wide variety of online conduct is up for possible evidentiary use:  Facebook postings, tweets, and comments in response to online articles.

Further, previous Minnesota court decisions demonstrate that there can be other consequences to evidence of social media activity, beyond simply supporting a charge of criminal conduct.  First, online chatroom activities have been used as part of the basis for a search warrant of the person’s computer in situations where the person’s chatroom conduct indicated there could be scope for a criminal prosecution.  Second, online activity such as Facebook postings or the creation of online content could be used as evidence of the premeditation of a crime.

However, as a Maryland court recently noted, there is significant potential for the government to fabricate or tamper with electronically-stored information from a social networking site.  One way to attack the use of such evidence would be to argue that the prosecution insufficiently “authenticated” the evidence (“authentication” refers to the process of showing that evidence is what it purports to be).

For example, one of the most common instances in which online activity is sought to be introduced in a criminal prosecution is a prosecution for attempted sexual offenses involving a child, since law enforcement officers or their agents sometimes pose as children in online chat rooms in an attempt to catch sexual predators.  In these situations, the admission of the evidence of the defendant’s online activity is more straightforward, since the law enforcement officer or agent can testify that the evidence introduced is a correct representation of the online chat.  In other types of criminal cases with evidence involving a Facebook or Twitter post, however, where there is no other party involved to testify that the evidence is a correct representation of the post, it may be more difficult for the prosecution to prove the evidence’s authenticity.  The prosecutor may have to ask a potentially hostile witness to confirm that printouts of postings allegedly made by a defendant were in fact correct, which may be difficult to do.

Because of the relatively recent advent of social networking sites, cases involving this type of evidence are still few and far between.  This area of law is likely to develop and change quickly; until then, it’s going to be hard to have a definitive idea of when and what type of evidence could be admissible in a criminal prosecution.  With that in mind, erring on the side of caution when using social networking sites is undoubtedly a good policy!