Category Archives: Data Preservation

Admissibility of Text Messages

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[Editor’s Note: Alicia Penn joined the NLST in September of 2023 from the District of South Carolina Federal Defender Office, where she represented clients charged with offenses involving everything from turtles to terrorism. A career Public Defender, she was forced to become proficient in electronically stored information after being assigned a 3-terabyte lottery scam case in 2013. Ever since, she has worked to adapt to the ever-changing electronic landscape and make it work in favor of her clients. In her new role her goal is to provide practical solutions to technological problems.]

Are screenshots of text messages admissible? The answer is everyone’s favorite: it depends!

There is no federal rule expressly forbidding the use of screenshots of text messages in court, but not all relevant evidence is admissible. To get a screenshot admitted and considered by a judge or jury there are procedural hurdles to overcome. Conversely, if your goal is to keep a screenshot out, the federal rules give you a framework to argue against admission.

The Rules:

Federal Rule of Evidence 901(a): In general, the proponent of the evidence must produce evidence sufficient to support a finding that the item is what the proponent claims it is. (b) gives examples of evidence that satisfies this requirement.

Other federal rules you can make hay with are: 1002 (Best Evidence), 401 (Relevance), 801 (Hearsay).

For a thorough and beautiful rubric of how to admit or challenge admission of electronic evidence, see

Admissibility of Electronic Evidence Chart by Hon. Paul W. Grimm and Kevin F. Brady (2018) craigball.com/Grimm Brady Evid Admiss Chart 2018.pdf

In addition, an excellent primer on admitting evidence in federal court is Lorraine v. Markel American Insurance Co., 2017 U.S. Dist. LEXIS 33020 (D. Md. May 4, 2007).

The Argument:

With reliability as a framework, there are two ways screenshots of text messages are inherently unreliable.

  1. The text message itself is fake.

With only the screenshot, there is no way to prove a text message is real. Anyone can create an image that looks like a text message using a free online program, screenshot it, and then send it or show it to someone and claim it is real. Without any other proof, such as a direct download from a cellphone, subscriber records, IP address data, etc. there is no way to prove that the text message itself was a real message that existed in the way the government witness may claim.

I made the fake chat at the beginning of this post online, for free, entering no personal identifying information, downloading no software program, in two minutes, after Googling, “fake chat generator.”

You can imagine the ways a fake text message could be used against a client. I have had a case where the government wanted to use screenshots of text messages, supposedly received from an informant, and claimed that these screenshots proved my client planned armed robberies. When I showed the screenshots to my client, he denied ever creating or sending them. The government had no other corroborating evidence or witness to show the text messages were real or received from my client. I objected and argued the supposed screenshot was unreliable.

  1. It is a real text message, but the sender/receiver is fake.

This scenario requires only a little more effort. There are apps like TextNow that allow you to send anonymous text messages. In one of my other cases, the government shared screenshots of threatening text messages sent from an anonymous number to my client’s ex-girlfriend and claimed my client had used TextNow to send these messages. Based on these screenshots of text messages, my client was detained, even though I argued the screenshots of text messages were unreliable and shouldn’t be considered. After the hearing, my investigator subpoenaed TextNow for subscriber information linked to the numbers used at the times the texts were sent. TextNow responded within a day, and the subscriber implicated the ex-girlfriend’s new partner as the person who created the text messages and sent the threats. After explaining and presenting this new information to the government and court, my client was released on an unsecured bond.

Cases that talk about screenshots and admissibility:

So, what is enough to admit a screenshot?

In United States v. Walker, 32 F.4th 377 (4th Cir. 2022), a government agent’s personal knowledge about the original report and the comparison of that report with a screenshot of letters calling a victim a snitch was “enough to show the screenshot was authentic. See Fed. R. Evid (b)(1)(4).

In United States v. Quintana, 763 Fed. Appx. 422 (6th Cir. 2019), an account in the defendant’s name, an email address with his name and moniker, a location linked to him, dates that corresponded to witness testimony, and a picture of him, plus other circumstantial evidence, was enough to authenticate a screenshot of a Facebook page presented by the government as the defendant’s.

In United States v. Vayner, 769 F.3d 125 (2nd Cir. 2014), the court did find a screenshot, alone, was not enough. The court expressed no view on what was enough but said that the fact the page with a defendant’s name and photograph existed on the internet was not enough to show the page was created by him or on his behalf.

Conclusion:

If the government presents you with a cellphone screenshot and claims your client is responsible, do not accept this at face value! Investigate it, even if it looks legitimate. Check to see if you received the file from the government in a PDF format, versus in an image format consistent with the device that allegedly took the screenshot. In addition, make the argument that the screenshot, alone, or even with other evidence, is unreliable, unauthenticated, and inadmissible. As part of this attack, educate the court and government on how easy it is to create fake messages. This is necessary to remove the gloss of reliability given to a screenshot of a text message that looks like what we are used to text messages looking like.

Because this question incorporates a technical inquiry, it is an area where working closely with an investigator, paralegal, or expert who understands the processes of the device at issue can help you argue to keep something out or let something in. A knowledgeable source can help you identify weaknesses or vulnerabilities to bring attention to during cross-examination. They should also be able to give you a factual assessment of a device’s or processes’ strengths and reliability. Either way, the more you know and understand, the better you can formulate and convey your argument.

Traveling Through Time in the Wayback Machine (without Mr. Peabody)

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The Internet is a dynamic place. While that is a benefit when we want new information quickly, it is a challenge in the legal field when we need a reliable, stable platform on which to build our arguments or conduct research. This backdrop is where the Wayback Machine comes in. The Wayback Machine is a service provided by the Internet Archive, a non-profit digital library dedicated to the preservation of our digital culture, which contains more than 26 years of archived web pages available for our viewing. This resource can serve our profession in two ways: first, as a tool for researching information that has disappeared from the public-facing internet; and second, as a tool for providing a stable link for use in briefs and motions. There are for-profit entities out there that will charge you for a similar service, however the Internet Archive is free, and has a proven track record of stability.

As a Research Tool

The Wayback Machine gives users the ability to go back and see what a particular webpage looked like on a certain day. For instance, here is this blog from April 27, 2012: https://web.archive.org/web/20120427202547/http://nlsblog.org/. Or here’s the front page from the New York Times on February 23, 2016: https://web.archive.org/web/20160223172920/https://www.nytimes.com/.

How can this be useful? Let’s say that part of your theory of defense hinges on Snapchat’s Privacy Policy in place on June 8, 2019, but if you visit Snapchat’s website at the time of this writing, you will see that the current privacy policy was updated in 2022.

To find the policy in effect on June 8, 2019, you can use the Wayback Machine, by going to https://web.archive.org and searching for http://www.snapchat.com.

Once you have selected the correct site, the Machine will take you to a timeline and calendar where you can select the capture for the desired date and time. First, click on the correct year on the timeline, in this example, 2019.

Next, select the date and capture time you want from the calendar. A quick note, captures and dates that are blue are better than green, so go for those if possible.

The Wayback Machine will now load snapchat.com as it looked on June 8, 2019, at the time you selected.

From here, you can navigate to the Privacy Policy and view it as it was on June 8, 2019.

To save it, you can either print it, capture it with software like WebPreserver, or link to it via the Wayback Machine. For more information on this last method, see the next section.

Stable Links for Citation

Citation to internet sources in motions or briefs can be a tricky thing. Sure, the Bluebook can tell you the “proper form” for an internet citation, but no amount of spading today guarantees that a link will work tomorrow. Not only can a website change its structure, rendering the link dead, but the site itself could disappear, taking all its data with it. The Wayback Machine can help.

In the exercise above, we located the Privacy Policy for Snapchat.com from June 8, 2019. If you needed to incorporate this page into a brief, you could either print or capture it as a PDF and attach it as an exhibit, or you can cite to the Wayback Machine’s version. This type of use is encouraged by the Internet Archive. After you arrived at the Snapchat’s privacy policy, the address bar shows an exact link to this version of this page.

Simply copy and paste the URL from the address bar into the citation in your brief. Now, when the court glowingly quotes your winning argument in a ruling, future lawyers reading it on Westlaw in ten years can click and read the original source material without encountering a dead link.

But what if the information you want is not on the Wayback Machine yet? Perhaps the website hasn’t been recently archived, or worse, has never been archived? You can trigger the Wayback Machine to take a snapshot of a page on demand, which will give you a stable link to the information you want for citation. To trigger a capture, go back to the Wayback Machine homepage (https://web.archive.org). Instead of entering a query in the search box, enter the URL you would like to preserve in the “Save Page Now” box.

For instance, this blog had not been archived since January. I entered https://nlsblog.org into the “Save Page” box, and told it to save. After a page where I confirmed what I wanted, The Wayback Machine got to work:

Now the Wayback Machine has a current snapshot. To copy the link, right-click on the “Visit Page” link and select “Copy Link Location” or visit the page itself and copy the URL from the address bar.

As a warning, the Wayback Machine will not work with all websites. Some sites use special settings (robots.txt) to prevent automatic capture or crawling by sites by search engines. For example, individual Facebook profiles are not available. A good rule is if you can’t find it with Google, you probably won’t find it on the Wayback Machine.

Conclusion

As I said in the beginning, the Internet is a dynamic place, but we do not have to let it stop us from finding the information we need or cause us to worry about the citations in our legal arguments. The Wayback Machine can be a blissful island of stability in an ever-changing world. Cite with confidence.