Officers are allowed to misrepresent their identities in the course of their investigations: they may pose as drug buyers, or prostitutes, or members of an organized crime syndicate. Is the same thing true online? In other words, may an officer claim to be someone else in order to “friend” a suspect on social media and thereby gain access to whatever information the suspect has posted? The answer isn’t clear yet, but I would guess that courts ultimately will say yes. Continue reading
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Suppose that the defendant is charged with a gang-related murder. The State seeks to establish that the defendant is a gang member by introducing a photograph that a detective found on the defendant’s Facebook page. The photograph shows the defendant flashing gang signs. The defendant argues that the picture can’t be authenticated, because digital photographs can easily be altered, and because the State does not have a witness who was present when the picture was taken and who can testify that the image is a fair and accurate representation. Is the picture admissible?
The usual ways of authenticating photographs won’t work here. Photographs are usually introduced to illustrate a witness’s testimony, based on the witness’s recitation that the witness was present when the photographs were taken and that the photographs “fairly and accurately depict” what the witness saw. See, e.g., State v. Vick, 341 N.C. 569 (1995). When such a witness is available, this foundation is sufficient for digital photographs just as it is for film photography. G. Michael Fenner, The Admissibility of Web-Based Evidence, 47 Creighton L. Rev. 63 (2013) (“A photograph from a Facebook page showing the criminal defendant half-dressed and fully-drunk at a party during the thirty-one days when she had not yet reported that her nearly-three-year-old daughter was missing, or during the five months between the time her daughter was reported missing and the little girl’s body was found, can be authenticated by someone who was at the party, remembers when the party occurred, and can identify the defendant from the photo. It does not matter where the photo was found: on Facebook, on a camera’s flash memory card, or in a shoebox. They are all just photos and can be authenticated in the ordinary, old-fashioned way. When it is irrelevant whether the Facebook page was the source of the photo, then just because it was found on the web does not make authentication any more complicated.”) However, in our hypothetical, that method of authentication isn’t available to the State.
Sometimes it is possible to authenticate photographs even when there is no witness who has first-hand knowledge of the accuracy of the images. An analogous issue often arises with video recordings, and there is a body of case law concerning when surveillance videos may be admitted as “silent witnesses” despite the lack of a human witness who can confirm the recordings’ accuracy. In general, authentication requires testimony from someone familiar with the surveillance system about how it worked, how the camera was functioning at the time of the recording, and how the video was copied from the system and preserved unaltered for trial. See generally Bowman v. Scion, __ N.C. App. __, 737 S.E.2d 384 (2012). A similar foundation could authenticate a surveillance photograph, but in our hypothetical, the State doesn’t know how the picture was taken, and so can’t authenticate the picture in this way either.
But other methods of authentication may be possible. Under Rule 901(a), “[t]he requirement of authentication . . . is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” The Rule lists several methods of authentication, but they are “[b]y way of illustration only, and not by way of limitation.” N.C. R. Evid. 901(b). In our hypothetical, there are a few avenues the State might pursue to authenticate the photograph.
The fact that the picture was posted to the defendant’s account. With electronic communications like emails and text messages, the key to authentication is establishing who likely authored the communication, and it is powerful evidence of authorship when a communication comes from an account linked to a specific person. By contrast, with a photograph, it doesn’t really matter who took the picture, and the fact that the picture was posted to the defendant’s account doesn’t shed much light on who took it anyhow. But the State still has a reasonable argument that the fact that the picture was on the defendant’s Facebook page tends to support its authenticity. Courts have noted that digital images can be altered. People v. Lenihan, 30 Misc.2d 289 (N.Y. Sup. 2010) (defendant properly was barred from cross-examining prosecution witnesses about “photographs that [the defendant’s] mother downloaded from [MySpace]” suggesting that the witnesses were gang members; “[i]n light of the ability to ‘photo shop’, edit photographs on the computer, defendant could not authenticate the photographs”). However, the fact that the defendant chose to display the picture on his own page suggests that he didn’t think the picture was misleading or falsified, and tends to support its genuineness.
The context in which the picture is placed. The relationship between the picture and the other content on the defendant’s Facebook page is also relevant. If the page is devoted to the defendant’s love of puppetry and ceramic unicorns, and the picture at issue is the only thing on the page suggestive of gang affiliation, it is more likely that the picture is satirical, misleading, or was planted on the page by a nefarious interloper. If the page is an unbroken string of drug and gang references, the picture is more likely to be genuine. People v. Valdez, 201 Cal. App. 4th 1429 (Cal. Ct. App. 4th Dist. 2011) (the prosecution adequately authenticated photographs printed from the defendant’s MySpace page that showed him making gang signs; the overall content of the page, including the interests reflected there and responses by the defendant’s friends and family, “suggested the page belonged to [the defendant] rather than someone else by the same name, who happened to look just like him”; and the photograph was in keeping with the gang-related theme of the page, which tended to support its authenticity).
Metadata. Finally, digital photographs often contain metadata – embedded information about when a picture was taken, where it was taken, and the camera with which it was taken. In some instances, metadata might be relevant to authentication. If a witness with the proper expertise were able to review the metadata and to testify that the metadata revealed that the picture had not been altered, that also would tend to support authentication. Cf. People v. Buckley, 185 Cal. App. 4th 509 (Cal. Ct. App. 2nd Dist. 2010) (prosecution was wrongly allowed to introduce a photograph, obtained from a witness’s MySpace page, of the witness flashing gang signs; however, based on prior case law, the court suggested that the picture may have been admissible with “evidence of when and where the picture was taken” and testimony from “a photographic expert . . . that the picture was not a composite and had not been faked”).
How high a hurdle is authentication? The hypothetical at the beginning of this post didn’t include any information about metadata or the other contents of the defendant’s Facebook page. Plus, the law isn’t settled in this area, particularly in North Carolina. Therefore, I don’t have a conclusive answer to my own question, but as a practical matter, the answer may hinge in part on how certain a court must be about authenticity before it will allow the evidence to be introduced. The black-letter law is that authentication is a relatively low hurdle. State v. Mercer, 89 N.C. App. 714 (1988) (noting approvingly that “federal courts have held that a prima facie showing, by direct or circumstantial evidence, such that a reasonable juror could find in favor of authenticity, is enough”). But courts around the country seem to be approaching digital evidence carefully, and perhaps requiring greater certainty about the nature of digital evidence before admitting it.
North Carolina’s ban on accessing commercial social networking sites by sex offenders is unconstitutional on its face, the court of appeals held this morning in State v. Packingham.
Under G.S. 14-202.5, it is (was?) a Class I felony for any registered sex offender to access a commercial social networking web site where the offender knows that the site permits children to join. The law defines commercial social networking Web site broadly to include any site that:
- Derives revenue, through membership fees, advertising, or other sources;
- Facilitates social introduction between two or more persons for friendship, meetings, or information exchanges;
- Allows users to create Web pages or personal profiles that may be accessed by others; and
- Provides mechanisms for users to communicate with one another. G.S. 14-202.5(b).
The definition excludes sites that provide only one discrete service (photo-sharing, email, instant message, or chat), and sites whose primary purpose is to facilitate commercial transactions involving goods or services. G.S. 14-202.5(c).
Registrant Lester Packingham was found to be using Facebook under a pseudonym and charged with a violation of G.S. 14-202.5. A jury found him guilty. On appeal, he argued that the statute violated his First and Fourteenth Amendment rights to free speech, expression, association, assembly, and press. He also argued that the law was impermissibly overbroad and vague in violation of due process. The court of appeals agreed on both fronts.
Applying intermediate scrutiny—the proper level of review for a content-neutral restriction on expressive activity—the court considered whether the law was narrowly tailored to achieve a significant government interest. The government’s interest in protecting children was undisputed, but the court concluded that the law was not sufficiently narrowly tailored to achieve that interest. The law applied to all registrants, regardless of whether their underlying crime involved children at all, and without any showing that the offender is a current threat to minors. “In essence,” the court concluded, “it burdens more people than necessary to achieve its purported goal.” Slip op. at 15. In support of its holding, the court cited a handful of federal cases—each discussed in this prior blog post—in which courts have struck even narrower restrictions in other states.
As to overbreadth and vagueness, the court of appeals agreed with the defendant’s argument that G.S. 14-202.5 did not “give people of ordinary intelligence fair notice of what conduct is prohibited.” Slip op. at 16. The court noted that the law’s broad definitions could sweep beyond mainstream sites like Facebook and Myspace (is that still mainstream?) to include sites such as foodnetwork.com, which apparently falls within the law’s prohibition by virtue of its user profile and messaging features. The court also indicated that sites like Amazon.com might be off limits, although it seems to me that Amazon would fall within the law’s exception for sites whose main purpose is to facilitate commercial transactions. Nevertheless, the point is that the law excludes sites a person of ordinary intelligence wouldn’t expect—and which probably don’t present a risk to children in any event.
The court concluded by noting that North Carolina has other criminal laws that protect children on the Internet without impinging on First Amendment rights: solicitation by computer under G.S. 14-202.3; cyberstalking under G.S. 14-196.3, and requiring sex offender to provide online identifiers as part of their registration with the sheriff under G.S. 14-208.7(b)(7). In fact, a failure to inform the sheriff of an online identifier is a Class F felony under G.S. 14-208.11(a)(10)—a more serious crime than the Class I crime deemed unconstitutional in Packingham, and one that may apply to Mr. Packingham depending on the particular facts of his case.
Packingham is the second recent case in which the court of appeals has deemed a restriction on sex offenders unconstitutional. The other is State v. Daniels, __ N.C. App. __, 741 S.E.2d 354 (2012), discussed here, in which the court found the restriction barring certain registrants from “any place where minors gather for regularly scheduled educational, recreational, or social programs” unconstitutional as applied to the particular defendant in question. In Packingham, the court held G.S. 14-202.5 unconstitutional on its face, meaning there is no set of facts to which it could validly apply.
Furious that her ex-boyfriend slept with her best friend, defendant puts up a post on Facebook falsely stating that boyfriend enjoys intimate relations with inbred dogs (actually, the phrase “enjoys intimate relations” and the term “dogs” are mine; defendant herself employed far more colorful language). Since boyfriend and defendant are “friends” on Facebook, defendant knows that boyfriend will see the post. Did defendant commit a crime?
In a post here, I wrote about cyberbullying, a crime enacted in 2009. A related offense but one that generates far more charges annually (over 1,200 charges in 2010) is cyberstalking. Because I get a fair number of questions about cyberstalking, particularly with regard to postings on social media sites such as girlfriend’s above, I’ll use this post to explain the crime.
The cyberstalking statute, G.S. 14-196.3, actually proscribes four offenses, all of which are Class 2 misdemeanors. G.S. 14-196.3(d).
Using Electronic Email or Electronic Communication To Threaten or Extort
The first cyberstalking offense involves using electronic email or electronic communication to threaten or extort. A person guilty of this offense uses in electronic mail or electronic communication words or language threatening to inflict bodily harm to any person, threatening physical injury to the property of another, or for the purpose of extorting money or other things of value from any person. G.S. 14-196.3(b)(1). If there is no threat or purpose to extort, this offense doesn’t apply. Note that as to the threat, statute does not define the terms “bodily harm” or “physical injury.”
For this and all cyberstalking offenses:
- The term “electronic mail” means the transmission of information or communication by the use of the Internet, a computer, a facsimile machine, a pager, a cellular telephone, a video recorder, or other electronic means sent to a person identified by a unique address or address number and received by that person. G.S. 14-196.3(a)(2).
- The term “electronic communication” means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature, transmitted in whole or in part by a wire, radio, computer, electromagnetic, photoelectric, or photo‑optical system. G.S. 14-196.3(a)(1).
- The statute provides that the offenses don’t to apply to any peaceable, nonviolent, or nonthreatening activity intended to express political views or to provide lawful information to others. G.S. 14-196.3(e). Also, the offenses may not be construed to impair any constitutionally protected activity, including speech, protest, or assembly. Id.
- The offenses are considered to have been committed where the electronic mail or electronic communication was originally sent, originally received in North Carolina, or first viewed by a person in North Carolina. G.S. 14-196.3(c).
Repeated Use of Electronic Mail or Communication To Harass, Etc.
The second cybertalking offense involves repeated use of electronic mail or communication to harass, etc. A person guilty of this offense electronically mails or electronically communicates to another, repeatedly and for the purpose of abusing, annoying, threatening, terrifying, harassing, or embarrassing any person. G.S. 14-196.3(b)(2). Conversation need not occur. Id. This offense only applies when there is repeated conduct. Thus, if it’s one message or one posting, this offense hasn’t occurred. The statute does not define the terms abusing, annoying, threatening, terrifying, harassing, or embarrassing. However, the stalking statute defines the terms “harasses” and “harassment” as knowing conduct directed at a specific person that torments, terrorizes, or terrifies that person and that serves no legitimate purpose. G.S. 14-277.3A(b)(2). Apparently, the person the defendant seeks to abuse, annoy, etc., need not be the person to whom the defendant directs the electronic mail or communication. See G.S. 14-196.3(b)(2) (to annoy, abuse, etc., “any person”).
Using Electronic Mail or Communication To Send a Specified False Statement
The third prohibited offense is using electronic mail or communication to send a false statement. A person guilty of this offense electronically mails to or electronically communicates with another and knowingly makes a false statement concerning death, injury, illness, disfigurement, or indecent or criminal conduct of the person electronically mailed or any member of the person’s family or household with the intent to abuse, annoy, threaten, terrify, harass, or embarrass. G.S. 14-196.3(b)(3). Note that any false statement won’t do it—the statement has to concern death, injury, illness, disfigurement, or indecent or criminal conduct. As with the previous offense, the statute does not define the terms abuse, annoy, threaten, terrify, harass, or embarrass. But as noted, the stalking statute provides guidance on the meaning of the terms “harass” and “harassment.” It’s not clear what falls within the scope of the statutory term “indecent conduct.”
Finally, the statute makes it a crime to permit cyberstalking. A person guilty of this offense knowingly permits an electronic communication device under his or her control to be used for a purpose prohibited by the three offenses listed above. G.S. 14-196.3(b)(4). This offense would apply, for example, if I knowingly let you use my smart phone to send threatening text messages to the victim.
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So what about defendant’s post? Since she didn’t threaten or extort, the first offense doesn’t apply. And since she only made one post, the second doesn’t apply either. That brings us to offense three: using electronic mail or communication to send a false statement. Defendant’s Facebook posting probably qualifies as an electronic communication within the meaning of the statute. Given her anger over boyfriend’s conduct, we can probably infer the improper purpose. That leaves the question of whether the communication pertained death, injury, illness, disfigurement, or indecent or criminal conduct. With regard to this posting, my caller was wondering whether an allegation that someone is having sex with dogs constitutes “indecent conduct.” As noted above, the statute doesn’t define that term. But I didn’t get hung up on that issue because the post clearly concerns criminal conduct. Having sex with animals constitutes crime against nature, a Class I felony. Since all of the elements are satisfied, I think there is probable cause to charge. Let me know if you disagree.