Webpages as Electronic Evidence – Facebook Case Study

A subscriber to The Litigation Support Mailing List recently raised a question in relation to the collection of electronically stored information ("ESI") from popular social networking website, Facebook.

Whilst reflecting minor updates, my response was as follows:

Identification

The "Profile" for a specific Facebook user will typically be set to private, and is largely inaccessible, unless:

1. You are "friends" with the Facebook user; or
2. You are a member of one or more "virtual networks" (e.g. School/College/University, Employer/Workplace, City, Country) that the Facebook user is also a member of.

Collection

If you are able to access the specific Facebook Profile, you may endeavour to use traditional webpage collection methods:

1. Use Adobe Acrobat 9 Professional to capture the webpage as a Portable Document Format ("PDF") document;
2. Use a webpage copy utility, e.g. HTTrack;
3. Manually save the page from your web browser, e.g. Microsoft Internet Explorer or Mozilla Firefox; or
4. Reference a cached copy of the webpage from a search engine, e.g. Google, Wayback Machine.

Note: Traditional webpage collection methods are typically unable to appropriately capture or copy all content stored or presented on a webpage. For example, content stored in Adobe Flash Video format, as used by YouTube and other popular video sharing websites.

If such content is relevant, you will need to consider the use of a separate software utility to manually download the content, or use screen recording technology, e.g. TechSmith's Camtasia Studio.

If you are unable to access the specific Facebook Profile or seek to obtain other associated non-public information, not limited to the Inbox and Sent Messages of the Facebook user, you may consider contacting the Facebook Security Department and filing appropriate legal documentation to obtain a "Neoprint". Per the Facebook Subpoena and Search Warrant Guidelines, a Neoprint "is an expanded view of a given user profile."

You may also consider using available legal means to compel the purported individual linked to the Facebook Profile to provide their login credentials (i.e. e-mail address and password). Alternatively, for the purported individual to provide access, via an independent computer expert, to any and all devices used to access their Facebook Profile (e.g. personal computer, mobile phone).

Admissibility

Due to the relative ease of alteration, both accidental and intentional, questions are increasingly raised when tendering electronic documents as evidence.

Notwithstanding forum-specific rules of evidence, the key outcome of any webpage collection is for you, or your computer forensic expert, to confidently satisfy any question that may affect admissibility.

As a starting point, consider the following:

1. How was the webpage was accessed, in this case, the specific Facebook Profile? (Procedure)
2. What method was used to make a copy of the webpage? (Procedure)
3. Have you previously used that method to make a copy of a webpage? (Experience)
4. Do you consider the method of copying used, a robust and reliable method, for the purpose of copying a webpage for evidentiary purposes? If yes, why? (Reliability)
5. What steps have been taken to ensure that the webpage, as a document, was not altered from the time of collection, to the time of being tendered? (Authenticity)