Malinao, Charlotte Iris: Social Networking Content as Electronic Evidence

Introduction:

With the proliferation of social networking services over the cyberspace which gives people to interact with one another (old friends and potential friends) and authorize them to publish personal details in a public medium, having the sense of privacy and reasonable degree of security and safety which entice people from all walks of life to embrace it, with significant degree of pressure to be electronically connected among peers. Social networking activities are selling like hot pancakes without knowing the dark side of social networking.

Having this risks of penetrations vulnerabilities, identity thief, data invasion and financial fraud our law enforcement and judicial proponents and advocates still continues to take advantage the resources provided by social networking as part of their evidence whether primary evidence or secondary evidence. Would such social networking evidence stands to its integrity, despite its inherent setbacks? How dependable is our law for this type of evidence? We will examine the existing Philippines laws and how they deal for this type of evidence.

Rise of the Titan

During the early days, when it comes to discussing matters regarding politics, sports , showbiz and other local interest conversation takes places in our usual so called “Tambayan“ Barbershops, School Gazebo or nearby bars and restaurants. These days they are still having those conversations as usual but they are much more preferred over their keyboard at their own convenience in so called online or virtual communities as referred to be Social Networking sites, it is defined as interactive web sites that connect user based on common interests and allow subscribers to personalized individual websites. [1] Social networking sites not only offers interpersonal communications but can provide personalized internet web pages which can be modified or customized according to your preferences, you can post photographs, videos, add music, or write journal or blog which is published in an online world and you can create or join group who has same interest. With its exceptional breakthrough, its success attributed to age-old concept of self-promotions, by allowing, encouraging, soliciting, promoting of anything or everything to our society with customization and drawing attentions to one’s self. [2] When does this activities of so called self promotions becomes illegal or criminally inclined attachment? What available evidence can be gathered to prove these illegal activities? Would this kind of evidence admissible in court?

Social Networking Issues vs. Social Networking Evidence

Issues concerning Personal Safety, monitoring for content and the relationship between institutional missions and new generation’s expectation of privacy [3] it has been a major concern of every social networking sites despite of site securities they provided to their users such as concealed profiles not available in their list of “friends”. Nowadays, it was proven that users of this social networking sites can be penetrate by hackers or spammers to use information to the expense of unaware user.

By its extreme personal nature it may be a potential source of civil and criminal liabilities, hence various IT related laws are put in place to in order to catch up with this new form of media to balance fair activities and appropriateness of its use.

Pictures, videos and verbal descriptions are being used by law enforcement authorities as evidence to prove or spot suspected illegal activities

Let’s take for example the case of libel by Miguel Osmena son of Cebu City Mayor-on- leave against Elise Diores Benitez for which the latter were allegedly accused of uploading/posting picture of Pink Sony Cybershot with a bullet hole and a shot of a phone with this message: “The next time that has to happen Sam, the bullet goes through your head.” As shown in the photo with the message from unregistered number, it was not mentioned in the site that the picture is from Miguel Osmena Alleged harassment until that it was brought out to the media for which she directly accused of harassment by way of picture as showed in the networking site photo album, [4] under this case the basis of complaint was the direct allegation made by Ms. Benitez in connection with the uploading of picture and being shared by 200 “friends” or list of user in your account for which you has a little or no personal affiliation.

As far allegation of harassment in her (accuser) case and libelous intent as charged by Miguel (accused) is a question of law for which our judicial system will determine the merits of this cases but as far as photos (evidences) is concerned they should be “authenticated “under the manner provided by rule 4 – Best Evidence Rule on Philippine Rules on Electronic Evidence promulgated by the Supreme Court as amended to include coverage of criminal cases effective 24 October 2002.
The above cited case for which the user has a direct control of her user account, how about those actions for which the user has no direct control or our control or hardware such pc or laptop have been compromised due to virus or spam attacks despite securities being implemented by social networking sites on the legal side two significant issues is being considered such a privacy issue (as provided by our constitution) and admissibility of evidence in social networking site whether it can be authenticated in a manner provide by law and cost efficient gathering this would pose tradeoffs between this conflicting issues.

Admissibility of Social networking Evidence how far it goes

How do we authenticate electronic evidence? According to the rules of electronic evidence, in order to be acceptable it must be subjected to the pertinent rules on evidence such as admissibility and evidentiary weight and would still have hurdle the requirements of relevance, authenticity and making formal offer of evidence which needs to be emphasized that neither the law nor the rule attempt to elevate electronic evidence into a higher category of evidence, hence making it the same as ordinary evidence.

The following specific rules under the electronic evidence are being highlighted that significant effect in gathering electronic evidence as far as social networking evidence is concerned:

Rule 5 section 1 places the burden of proving the authenticity of electronic evidence on the party seeking to introduce such evidence.

Rule 6 discussed electronic signatures and provides for disputable presumptions relating for both electronic signatures, these presumptions is necessary considering the complicated and technical nature of proving electronic signatures in order to simplify its presentation .

Rule 9 allows for affidavit evidence in order to expedite the proceedings on the presentation of matters relating to admissibility and evidentiary weight.

What are the steps in authenticating proof or evidence in social networking potential civil or criminal liabilities?

According to this author, there are some basic steps to assists us in authenticating evidence linked to social networking, this are as follows:

  1. Authenticating keys in facebook, Twitter, Myspace or whatever social networking account
  2. Verifying the account – likely through usernames and passwords
  3. Get a proof from the social networking company that the postings came from computer affiliated with the accused – requesting records from the social networking company
  4. Ensure that activities occurring will have time and date stamp
  5. Provide evidence that the accused actually did the postings from the identified computer or electronic device

In assessing evidentiary weight of electronic documents specifically,” evidence gathered from social networking site the law offered certain factors, such as reliability of the manner in which its originator was identified; the integrity and information and communication system in which it is recorded or stored; the familiarity of the witness or the persons who made the entry with the information and communication system; the nature and quality of the information which went into the communication and information system and other factors which the court may consider as affecting the accuracy or integrity of the electronic documents.

Social networking evidence current challenges

The ability to use information discovered from social networking site as evidence has not yet been fully tested in our local courts and the lawyers must understand the evidentiary and ethical implication of seeking and discovery such evidence, furthermore with the growing of concerns with the admissibility of evidence obtained from social networking sites among defendants in court various issues could be raised if such evidence are being used in our local courtroom in connection with this, judiciary request for production of this evidence which sometimes disclosed personal information which may be tantamount to invasion of privacy, what level of protection can the government provide for the investigation, data collection and surveillance of activities of using networking sites.

Four significant themes have been brought out with regards to legal issues involving privacy, gathering and used of social networking content as evidence which peculiar to the existing laws involving electronic evidence. These are as follows: [5]

  1. The public has a little understanding of the risk involved in giving personal information to other member of social networking sites and postings content on the sites.
  2. Existing laws does not adequately address legal implication of the methods used to gather, and/or the used of evidence from social networking sites:
  3. There are no specific ethical guidelines for lawyers to follow in participating in or gathering evidence from social networking sites; and
  4. The evolution of third-party applications used in conjunction with social network sites is changing the landscape on a continuing basis.

We hope that this issues be address legally in order for us to be complacent that the evidence that were gathered has integrity and reliable source of proof to be used by our judicial system.

Conclusion

Social networking is being preferred for social interaction because of such forums relatively easy to access, posted content can be viewed by anyone with an interest in the user’s personal information. Users of Social networking site should be aware that whatever we put in our profiles/accounts can be used against us, Since the Promulgation of the comprehensive law on Rules on Electronic evidence it has changed/responded to the rapid development in information technology several issues are discussed in handling electronic evidences and its legal, social and ethical implication as far as pieces of evidence from social networking sites. As discussed integrity and reliability is the primary issues concerning handling of evidence specifically from social networking sites for which should be handled carefully and be treated separately because such evidence are transient and coupled with privacy restrictions, therefore attorneys and investigators must understand fully the ethical and evidentiary rules associated with discovering such evidence.


Endnotes

[1] Brand Stone, Social Networking’s Next phase, N.Y. Times, Mar 3, 2007 at C!

[2] Joseph Pine II, The new frontier in Business competition 8 (1993)

[3] EDUCAUSE Review, vol 41, no. 6 (November/December 2006): 16-26

[4]Miguel accuser limits posts on Facebook to about 200 friends, Sun Star Cebu Newspaper September 19, 2009

[5] Donna Seyles, The legal Dilemmas of Social Networking, www. Lawlink.com Oct. 28, 2009


References

  • John S Wilson, Myspace, Your Space, or Our Space? New Frontier in Electronic evidence
  • Rules on Electronic Evidence, Amended October 24, 2002
  • Facebook Alibi: Social Media as Defense Evidence Nov 12, 2009, http://www.findlaw.com
  • Social Networks: Friends or Foes? Confronting Online Legal and Ethical Issues, http://www.Law.Berkeley.edu
  • Admissibility of Social Networking Websites by Delora Deravi
  • Miguel accuser limits posts on Facebook to about 200 friends, Sun Star Cebu Newspaper – September 19, 2009
  • Myspace: Social Networking or Social Isolation? Rob Nyland, Raquel Marvez, Jason Beck
  • Facebook and Litigation, New York Law Journal, September 11, 2009
  • Social Networking – legal and Ethical Issues for Lawyers and Investigators, http://www.pibuzz.com
  • What’s on your Witness ‘s Myspace Page, March 2008, Karen Stevenson
  • Facebook – Who is watching You! November 20, 2006
  • Social Networking Sites and Litigation, http://www.lawprofessors.typepad.com
  • Legal Dilemmas of Social Networking by Dona Sayle, http://www.lawlink.com
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