Faking It On Facebook: Implications Of Fraudulent Social Media Activity
In 2013, instant interpersonal contact no longer means face-to-face or telephone contact with another person. Text messaging and social media have made nonpersonal instant communications commonplace. I confess, I have sent a message to my wife through a text or via social media while she was in another room in our house. But the modern prevalence of this technology also makes fraud easier than ever before. You may not know what the terms “catfishing” and “spoofing” are, but the chances are high that you’ve heard of Manti T’eo and his “fake girlfriend.” We often mock those who are fooled by people using fake Facebook or Twitter accounts and falsified e-mail addresses, and we shake our heads in disdain at those perpetrating the fraud—but we often place these things in the category of prank, rather than crime. At the end of the day, it’s just someone’s feelings, right?
There are serious legal, and specifically criminal, implications for these activities. Consider this: statements made by a person on Facebook or in other social media may be used against that person in a criminal conviction or in civil court, such as in a divorce case. What a person “says” on the internet can be — and now routinely is– used against that person in court. For that reason, investigative work in criminal or civil court cases now usually includes looking at a person’s Facebook profile, Twitter feed or Tumblr blog for possible evidence.
In many cases, authentication of a person’s statements in social media becomes a critical part of a criminal prosecution or defense, or an important issue in a divorce or custody battle. However, in Virginia there is no specific law or case precedent on how to deal with admitting these kinds of things into evidence. Does admission into evidence of a person’s activity on social media require a forensic expert who can testify to the IP Address and origination of the registrant of the account? Or is it as simple as the court finding that the profile picture or name is yours and therefore, it must be you?
A helpful case on the subject is that of Griffin v. State of Maryland, a 2011 case in which the Maryland Court of Appeals overturned a conviction based on the trial court’s improper admission of MySpace page documentation without the proper authentication. The Court in the Griffin case, which can be read in full HERE, indicates that a picture and some identifying information is not sufficient to authenticate a person’s social media page, without some particularized knowledge of that person. For instance, an investigator who does not know the accused cannot just compare photographs and names and come to the conclusion that the page is truly that of the accused, and not a spoofed or catfished page. The Court acknowledges how easy it is to create false accounts. Legal commentators analyzing some other cases in other jurisdictions seem to believe that authentication through the unique digital markers that exist in the internet to trace the origins of content to a particular source will be acceptable as well.
We should not treat spoofing or catfishing as simple pranks, because the ramifications could be severe; not just for the person who is being hoaxed, but for those occasions where the spoofer or catfisher is using a real person’s identity. You surely do not want something someone else said online using your identity to be used against you in court. There may be no foolproof way to prevent your identity from being used; but just as we check our credit reports periodically to ensure there are no unknown accounts or charges, we should be checking our internet presence, searching our own names from time to time and ensuring that our names or images are not being used in a fraudulent manner.