After original chat conversations were missing, the government failed to authenticate conversations based on a modified cut and paste document of the conversations, in United States v. Jackson, 488 F.Supp.2d 866 (D. Neb. 2007)
The inability to authenticate Internet and computer evidence can have significant consequences. This point was reiterated in a case involving “instant messaging” or online “chat” between the defendant and “k8tee4fun,” who claimed to be a fourteen-year-old girl but was actually an agent. They agreed to meet at a park. The defendant drove to the location but then returned home. Officers arrested the defendant and seized his computers. He was charged with using a computer to knowingly attempt to persuade, induce, and entice a minor to engage in sexual activity, under 18 U.S.C. § 2422(b). The chat conversations occurred during a one month period. The agent participating in the conversations cut and pasted them after each session into another document. He then made a second copy on which he made notes and other alterations. At the time of the trial, the original conversations were missing. The originals were not available through the agent. The defendant’s computer did not archive the conversations. The district court summarized the state of the evidence:
“The parties agree that there are no original transcripts of the conversations, either because computers are missing or because instant-message conversations were not maintained or archived on the computers. The parties also agree that there are no longer original electronic computer printouts or copies on floppy discs or hard drives or disc drives capturing the computer conversations between [agent] Margritz and the defendant during that period of time. None of the conversations were saved. It appears from the testimony of Margritz that he wiped his computer clean during a routine upgrade a couple of years after this investigation. Consequently, the government is attempting to introduce copy-and-paste notes taken by Margritz from the online chats and saved into a Microsoft Word document.”Jackson, 488 F.Supp.2d at 869. The defense moved to exclude the conversations at trial. A defense expert testified that cutting and pasting was the least effective way to capture chat evidence. According to the defense expert, “other ways to accurately save computer chats would include a screen capture where a log file is saved to the hard drive, found in unallocated space, or use of the ypager log found in Yahoo. He also testified that there were third-party software programs available in 2001 that would accurately save the online chats, and the basic ‘print screen’ and ‘file-print’ options would likewise have captured the entire chat.” Id. at 870. The defendant claimed that the original chat conversations would have supported his defense that he planned to meet the minor and introduce her to his grandniece.
The trial court excluded the cut-and-paste evidence since the government failed to meet its burden to authentic the document. The remaining document contained alternations and missing information and therefore was not an accurate record of the conversations. The court concluded: “Changes, additions, and deletions have clearly been made to this document, and accordingly, the court finds this document is not authentic as a matter of law.” Id. at 871. The altered document also could not be admitted as a duplicate. The court would have admitted “evidence which had been saved on the computer and was the actual computer printout,” but those records were not available. The inability to preserve evidence of the online communications resulted in their exclusion.
Other examples concerning the Limits To Relying On Internet Materials And Information In Court have been noted, including Part I, and Part II.
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