Blog: Snapchat – Defeating an Authenticity Objection in Court

by Danielle Bringard, Associate Survey and Symposium Editor       

             We’ve all done it.  We’ve all taken the “selfie.”  Facebook, Twitter, Tinder, Instagram, and Snapchat are just a few of these social media applications that allow users to transmit photos and videos to each other from various electronic devices.  However, unlike most social media sites, Snapchat has a unique feature.  Unless a user takes a “screenshot” of the photo or video while it is being received, than the photo or video is deleted after up to 10 seconds.[1] 

            The only information you can obtain from Snapchat about a user is: the user’s email, the user’s phone number, the username, a log of the last 200 snaps that have been sent and received, and the date the user created the account.[2]  The exception being if either the sender or the recipient downloaded the message, kept it saved, and was able to be retrieved from the actual device rather than from the Snapchat application.  The Richmond Journal of Law and Technology has recently published an article which explores the dangers of Snapchat and sexting,[3] but what about the admissibility of a Snapchat history in a court of law?

            While there have been no cases specifically dealing with Snapchat, there have evolved two competing theories regarding the authenticity of social media evidence in general.[4]  First, in the Griffin case, the court requires: the testimony of the creator, documentation from the creator’s computer, or information obtained directly from the social media site which would tend to show that the evidence seeking to be admitted was not falsified or created by another person.[5]  Under the Griffin Test, Snapchat could be authenticated with the report from Snapchat Legal which gives the user’s email, phone number and username provided the party seeking admission could show a match with the purported author.  Second, in the Tienda case, the court will admit social media evidence on a ruling from the judge that a jury could reasonably find that the proffered evidence is authentic.[6]  Under this ruling authenticity could also easily be established with a report from Snapchat Legal.

            While the Griffin test appears to be more stringent that the Tienda test, both courts examined the content and the context of the social media page seeking admission in making its ruling.  Given that requesting the proper authenticating information from Snapchat Legal is no series of hoops to jump through, it is likely that most courts will overrule any objection to the authenticity of a user’s history report from Snapchat Legal.

             


[1] Snapchat Law Enforcement Guide 3 (last updated Dec. 1, 2012) available at http://www.mrcac.org/content/uploads/2013/02/Snapchat_Law_Enforcement_Guide_12112.pdf.

[2] Id. at 4.

[3] Nicole A. Poltash, Snapchat and Sexting: A Snapshot of Baring Your Bare Essentials, 19 Rich. J. L. & Tech. 4 (2013) available at http://jolt.richmond.edu/v19i4/article14.pdf.

[4] Tienda v. Texas, 358 S.W.3d 633 (Ct. Crim. App. Tex. 2012); Griffin v. Maryland, 19 A.3d 415 (Ct. App. Md. 2011).

[5] Griffin, 19 A.3d at 427-428.

[6] Tienda, 358 S.W.3d at 638.

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