Authenticating Internet Chat Communications With A Witness Familiar With The Records (Part II)

Internet chat logs were authenticated by a witness who testified that they represented a full and fair reproduction of the year-long online “relationship”; Fifth Circuit notes developing circuit consensus on authenticating Internet chat logs, in United States v. Barlow, 568 F.3d 215 (5th Cir. May 6, 2009) (No. 08-60556)

With the increasing use of the Internet as a vehicle for criminal activity, the courts have found that established methods of authentication that are common for non-digital materials may be applicable for digital forms of communication. The Fifth Circuit recently considered the authentication of an Internet chat log, and found it fairly indistinguishable from the authentication of materials, such as a phone transcript or written materials. In reaching this issue, the circuit noted at least three other circuits that have approved witness authentication.

In Barlow, the defendant was charged with trying to entice a person he believed was a minor to engage in sexual activity and with sending that person obscene material. The investigation established that he had Internet conversations with a person he thought was “a teenage Mississippi girl named Rebecca.” Only after arrest did he learn his correspondent was actually “a middle-aged, married paralegal from Dixie, Mississippi, named Ginny English” who “freelanced for law enforcement by posing online as an underage girl to attract potential sex offenders.”

As described by the circuit, their “online relationship… continued sporadically. …They chatted mostly via Yahoo! Messenger, an instant messaging service, but also by email. At Barlow's instigation, the conversations became explicit immediately, and over time Barlow emailed Rebecca multiple pornographic pictures, including of his erect penis. He repeatedly asked her to send explicit pictures of herself, occasionally asserting that he was a photographer who could set her on the path to a lucrative modeling career if she would comply.” Barlow, 568 F.3d at 218.

Finally, the defendant tried to set up a meeting with Rebecca at a state park. The defendant was arrested by FBI agents after he went to the park. On his laptop in his car, they found “some remnants of the chats he had had with Rebecca.” Barlow, 568 F.3d at 218. At his trial, the chat logs of his communications with Rebecca were admitted. The defendant objected that the government failed to authenticate the chat log. After his conviction, on appeal he also contended for the first time that the logs “could” have been altered. But he did not “contend that it actually was altered.” Barlow, 568 F.3d at 220 (emphasis added).

The circuit affirmed the authentication of the chat logs under the low standard that allows for authentication by “[t]estimony by a witness with knowledge that the ‘matter is what it is claimed to be’ can be enough to prove the thing's authenticity. The ultimate responsibility for determining whether evidence is what its proponent says it is rests with the jury.” Barlow, 568 F.3d at 220 (footnotes omitted). As the circuit succinctly explained:

“At trial, English testified that the transcripts fairly and fully reproduced the chats between her (posing as Rebecca) and Barlow. English, as the other participant in the year-long ‘relationship,’ had direct knowledge of the chats. Her testimony could sufficiently authenticate the chat log presented at trial, and it was not plainly erroneous to admit the transcript on this basis.”
Barlow, 568 F.3d at 220.

While this form of authentication of Internet communications was new in the Fifth Circuit, the circuit noted that it was not “the first court to find testimony of the other participant in an online chat can authenticate the conversation's transcript.” Barlow, 568 F.3d at 220 n.17. The Fifth Circuit specifically pointed to similar cases in three other circuits:

  • Second Circuit: United States v. Gagliardi, 506 F.3d 140, 151 (2d Cir. 2007) (“In this case, both the informant and Agent Berglas testified that the exhibits were in fact accurate records of Gagliardi's conversations with Lorie and Julie. Based on their testimony, a reasonable juror could have found that the exhibits did represent those conversations, notwithstanding that the e-mails and online chats were editable. The district court did not abuse its discretion in admitting the documents into evidence.”)
  • Ninth Circuit: United States v. Tank, 200 F.3d 627, 630-31 (9th Cir. 2000) (testimony of another chat room user that he recorded the chats and printed them out, and that the printouts appeared to accurately represent the chats, was sufficient to establish prima facie showing of authenticity)
  • Tenth Circuit: United States v. Simpson, 152 F.3d 1241, 1249-50 (10th Cir. 1998) (combination of identifying information given by user in the chat and corroborating evidence found in defendant's home near his computer sufficient to authenticate chat log)

The Barlow case illustrates one accepted means of authenticating Internet evidence. The circuit did not spend much time on the claim that the logs could be altered. Usually such claims are insufficient to prevent authentication. See, e.g., United States v. Whitaker, 127 F.3d 595, 602 (7th Cir. 1997) (party’s allegation of tampering with the computer files of co-defendant was “almost wild-eyed speculation . . . [without] evidence to support such a scenario” so that the evidence could be authenticated). Typically, any questions about alternations or changes to the original go to the weight of the evidence, but not authentication.

For another example of the use of traditional methods of authentication in the Internet context, see the blog entry Authenticating Internet Chat Communications By A Witness Familiar With The Records (Part I).


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