Third Circuit Court of Appeals Finds Social Media Accounts Are Not Self-Authenticating

Prosecution Tries to Link Defendant to Facebook Account in Child Pornography Case

As technology changes, it becomes increasingly woven into the fabric of our day-to-day lives. From the introduction of the smart-phone to the almost ubiquitous presence of social media, new technology means we spend more and more time on social media channels, exchanging pictures with friends and family, forming relationships, and conducting business, but also engaging in activities that may be illegal.

Predictably, our social media activities have not gone unnoticed by the government. In a 2013 case, Defendant Tony Browne was charged and ultimately convicted of child pornography and sexual offenses with minors. Part of the government’s case against Mr. Browne included a record of Mr. Browne’s Facebook “chats” with minors. While the government tried to link the chats to Mr. Browne, Mr. Browne claimed there was no evidence establishing that he was the author of the chats.

Overview of United States v. Browne

In 2011, Defendant Tony Browne, using the Facebook account name "Billy Button," began exchanging messages with 18 year old Nicole Dalmida. Ms. Dalmida eventually shared sexually explicit photographs with Mr. Browne. Mr. Browne threatened to publish the explicit photos of Ms. Dalmida unless she engaged in oral sex with him and gave him her Facebook password.

With the password to Ms. Dalmida’s Facebook account, Mr. Browne contacted four of Dalmida’s “friends,” all of whom were minors, and solicited sexually explicit photos from them. Mr. Browne then repeated the pattern, demanding oral sex in exchange for not publishing the explicit photos of the young women.

Mr. Browne was arrested in June 2013 and admitted that the "Billy Button" Facebook account belonged to him. As part of the prosecution's case, Facebook provided five sets of chats between "Billy Button," Ms. Dalmida, and Ms. Dalmida's 4 minor friends, with a certificate of authenticity stating that the chats were made and kept in the ordinary course of Facebook's regularly conducted business activity, and that the exchanges did in fact occur between the accounts.

Mr. Browne was convicted at trial, and argued on appeal that the government had not proved he was the one who actually wrote the chat messages. Specifically, Mr. Browne claimed that nothing in the messages uniquely identified him as the author, and that there was no evidence that he actually wrote the Facebook messages.

The court of appeals agreed with Mr. Browne, finding that the Facebook records were not self-authenticating, and that a reasonable person could find that there was a question as to whether the chats were really written by Mr. Browne.

The court questioned whether Facebook chat records were a regularly conducted business activity for purposes of the Federal Rules of Evidence, and found that the records of the chats did not fall under the business record exception, which would allow records to be admitted into evidence without additional testimony if the source of the information and the purpose for which the information is recorded makes the the contents likely to be accurate and reliable. A classic example of a self-authenticating business record would be minutes of a business committee meeting that is systematically checked for accuracy.

Here, Facebook made no claim about the accuracy of the contents of the messages. Rather, Facebook only confirmed that the communications took place at specific dates and times between specific accounts. Facebook's certification did not claim that Mr. Browne was, in fact, the author of the chats. The court found that the government needed to present testimony establishing the reliability of the chats, comparing Facebook's certification that the communications occurred between particular accounts at specific times to claiming that a postal receipt could be used to substantiate the reliability of the contents of a mailed letter. The fact that the chat occurred could not be used to establish the content of the chat or its author.

The Best Criminal Defense Attorneys Try to Exclude Unreliable Evidence

At trial, a case often comes down to what evidence is admitted and what evidence is excluded. Each of these decisions by the trial judge has an impact in determining what evidence the jury legally permitted to consider in deciding whether a defendant is guilty. A criminal defense lawyer will try to exclude certain evidence if the evidence is unreliable or could potentially confuse the jury.

Here, the court ultimately upheld Mr. Browne’s conviction because the government presented “abundant evidence” tying Mr. Browne to the chat messages, and because it was highly probable that the erroneous admission of the chat messages did not contribute to the judgment against Mr. Browne. However, the court’s ruling that social media records are not self-authenticating means that the government must be able to present evidence linking messages sent and received via social media to a specific defendant, not just to that user’s account.

If you are facing federal charges and need an aggressive federal criminal defense attorney, contact me at the Law Offices of Hope Lefeber for a free initial consultation. I have been defending people accused of crimes throughout New York City for more than 30 years and have a reputation for the best results.