Pennsylvania Court Opinion Implicates Authentication of Social Media Evidence

A recent Commonwealth Court decision, Chapman v. Unemployment Compensation Board of Review 20 A.3d 603 (Pa. Commw. Ct. 2011), illustrates 1) the growing presence of social media evidence and 2) the potential for social media authentication issues in legal matters —including in administrative law matters.[FN1] Authentication of social media evidence is an emerging issue.[FN2]

In Chapman, the Commonwealth Court affirmed the Appellant’s ineligibility for Pennsylvania Unemployment Compensation benefits under Section 402(e). The contents of a Facebook page (social media), notably, figured prominently in denying unemployment benefits. According to the opinion, the Claimant, a nurse, posted embarrassing information about a co-worker on her Facebook page from a cell phone while on duty dispensing medication to patients. {2-3}

Authentication of Social Media Evidence

In Chapman, the Unemployment Compensation referee, according to testimony cited in the opinion, specifically asked the employer’s witnesses whether the Claimant confirmed that the Facebook postings were the Appellant’s. {6-7, 10} The Facebook pages were already entered into evidence at the hearing as Exhibits #6 and #6A. {6} The authentication was material because the Facebook postings violated the Employer’s policy against cell phone use while on duty. {See 6} In other words, the Facebook postings figured materially into the Claimant’s employment termination for misconduct because the time/date stamps of the postings apparently demonstrated that the Claimant was on duty, and not on break, at the time of posting. {See 6-11 and 3, 6, 12}. Thus, the Facebook postings confirmed the violation of employer policy as a predicate to employment termination.

No Objection to Employer’s Use of the Facebook Evidence Is a Waiver

On appeal, the Claimant also raised federal constitutional objections to the “illegal search” by the Employer of her Facebook page. {14} [FN3] The court summarily rejected the claim because the Claimant did not properly raise the objection during the hearing. {See 14} Failure to raise the claim earlier effectively waived the issue on appeal. {14}

The waiver-for-failure-to-raise or -preserve an issue may have broader implications in social media-related cases. Rather than a claim of federal constitutional prohibitions on unreasonable searches (e.g., Fourth Amendment) as in Chapman, a matter might implicate federal and Pennsylvania statutory bars on access to electronic information. A party might raise, for example, objections to the social media content based on violations of the federal Stored Communications Act (18 U.S.C. §2701 et seq.).[FN4] However, if not raised early (such as at the hearing), as Chapman indicates, a party potentially waives the claim on appeal.

Concluding Notes—Proper Authentication of Social Media Is Necessary

As Chapman illustrates, social media can be material in an administrative law decision. As material evidence, proper authentication of the social media evidence is necessary—including corroborating testimony affirming the tie between the purported social media content and a party.

Furthermore, as Chapman also indicates, if challenging the admission of social media evidence in a Pennsylvania Unemployment Compensation hearing, the challenge should be raised early (e.g., at the hearing) or the issue may be waived.

Footnotes

FN1—Throughout this article, numerals in curly braces {} reference pages in the Chapman opinion.

FN2—For recent treatment of authentication issues related to social media, see for example my working whitepaper entitled Facebook Download Your Information Basics for Lawyers http://www.shannonbrownlaw.com/cms/archives/489 and Griffin v. Maryland (2011) available at http://www.courts.state.md.us/opinions/coa/2011/74a10.pdf (holding improper authentication of MySpace and Facebook evidence was material in a murder conviction).

FN3—The basis for the constitutional claim of an illegal search are unclear since, for example, the opinion does not indicate whether the Employer was a government entity.

FN4—Pietrylo v. Hillstone Restaurant Group d/b/a/ Houston’s, No. 06574, 6–7 (D.N.J. 2009), available at http://www.employerlawreport.com/uploads/file/Opinion%209-25-09.pdf classically illustrates an employer exceeding apparent authority when accessing protected social media content and thus violating the federal Stored Communications Act.
(Pennsylvania also has a statute, primarily criminal, related to wiretapping and interception of electronic storage called the Pennsylvania Wiretapping and Electronic Surveillance Control Act (18 Pa. C.S. 5701 et seq.) and 18 Pa.C.S. 5725, 5741. Expires December 31, 2013, unless extended by statute. See 18 Pa. C.S. 5781.)

Original Publication: 12 May 2011
Minor Update: 12 May 2011
Minor Update: 21 September 2011