UNSOCIAL MEDIA AEQUITAS AVAILABLE 24 / 7 VIA TELEPHONE AND / OR . When Facebook is Weaponized AEquitas 1

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1 UNSOCIAL MEDIA When Facebook is Weaponized AEQUITAS AVAILABLE 24 / 7 VIA TELEPHONE AND / OR TECHNICAL ASSISTANCE Case Consultation Legal research Motions assistance ID of expert witnesses Media inquiries Peer review TRAININGS Institutes Tracks Workshops On-site Webinars Webinar recordings RESOURCES Monographs Prosecutors Resources STRATEGIES and STRATEGIES in Brief Statutory compilations and case law digests Sample motions, briefs, expert reports, etc. Sample voir dire, expert examinations, etc AEquitas 1

2 SUPPORT This project was supported by Grant No TA-AX-K043 awarded by the U.S. Department of Justice, Office on Violence Against Women (OVW). The opinions, findings, conclusions, and recommendations expressed in this presentation are those of the author(s) and do not necessarily reflect the views of OVW. FAIR USE This presentation includes the creative work of others. This property is being used by permission or under claim of fair use (17 USC 107). This presentation was created pursuant to fair use guidelines, and further use or distribution is prohibited. CAVEAT Photos and case scenarios used in this presentation may include graphic language or images. Photos have been redacted to remove identifying information and to protect victim privacy AEquitas 2

3 OBJECTIVES Identify how offenders misuse Facebook to perpetrate crimes and assert power and control Coordinate with allied professionals to support victims and identify and preserve digital evidence from Facebook Effectively litigate the admission of Facebook evidence by analyzing applicable evidence rules, current case law, and underlying theories of admission TECHNOLOGY CHANGES But abuse doesn t. MISUSE OF FACEBOOK Power and Control Criminal Act 2018 AEquitas 3

4 WHAT MAKES WEAPONIZING FACEBOOK SO HARMFUL? UNIQUE HARM Perpetual Infinite Every day of my life I live in constant fear that someone will see my pictures and recognize me and that I will be humiliated all over again. It hurts me to know someone is looking at them at me when I was just a little girl being abused for the camera. I did not choose to be there, but now I am there forever in pictures that people are using to do sick things. I want it all erased. I want it all stopped. But I am powerless to stop it just like I was powerless to stop my uncle... My life and my feelings are worse now because the crime has never really stopped and will never really stop... It's like I am being abused over and over and over again. Paroline v. United States, 572 U.S. 434, 441 (2014) (quoting an impact statement provided by the victim) 2018 AEquitas 4

5 HOW MIGHT AN OFFENDER USE FACEBOOK TO ASSERT POWER AND CONTROL? Monitor Activity Pose as Victim Offender Scrutinize Communications Insist on Password THEORIES OF ADMISSION Other Bad Acts Proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident Okla. Stat. tit. 12, 2404(b) Rebuttal Testimony To explain victim s behavior after the defense attacks credibility; e.g. delayed disclosure Introduced to rebut defense claims of good character 2018 AEquitas 5

6 GRIGSBY v. STATE 496 P.2D 1188 (OKLA. CRIM. APP. 1972) Arson conviction Evidence was presented that the offender had previously assaulted, harassed, and threatened the victim Court found the evidence of other bad acts was admissible as evidence of a continuous scheme We are of the opinion that the challenged testimony indicating harassment and a possible assault falls within the well-recognized exceptions... The evidence indicated that there was a continuous scheme on the part of the defendant." Grigsby v. State, 496 P.2d 1188 (Okla. Crim. App. 1972) HOLT v. STATE 774 P.2D 476 (OKLA. CRIM. APP. 1989) DV burglary and battery case Defendant s prior violations of a protection order were properly admitted Court found that the violations were relevant to show motive and / or intent and were not unduly cumulative or prejudicial 2018 AEquitas 6

7 HOW MIGHT FACEBOOK BE USED TO COMMIT A CRIMINAL ACT? What crimes? CRIMES WITH DIGITAL EVIDENCE Nonconsensual dissemination of private sexual images Okla. Stat. tit. 21, b Peeping Tom Okla. Stat. tit. 21, 1171 Stalking Okla. Stat. tit. 21, 1173 Obscene, threatening or harassing communications Okla. Stat. tit. 21, 1172 Extortion Okla. Stat. tit. 21, 1481 Computer Crimes Okla. Stat. tit. 21, 1953 Image Exploitation Nonconsensual creation, possession, or distribution of an image or images of the victim Nude, semi-nude, engaged in consensual sexual activity, or being sexually assaulted 2018 AEquitas 7

8 NONCONSENSUAL DISSEMINATION OF PRIVATE SEXUAL IMAGES OKLA. STAT. TIT. 21, B A person commits nonconsensual dissemination of private sexual images when he or she: 1. Intentionally disseminates an image of another person: a. Who is at least eighteen (18) years of age; b. who is identifiable from the image itself or information displayed in connection with the image, and c. who is engaged in a sexual act or whose intimate parts are exposed, in whole or in part; NONCONSENSUAL DISSEMINATION OF PRIVATE SEXUAL IMAGES OKLA. STAT. TIT. 21, B, CONT D 2. Disseminates the image with the intent to harass, intimidate or coerce the person, or under circumstances in which a reasonable person would know or understand that dissemination of the image would harass, intimidate or coerce the person; 3. Obtains the image under circumstances in which a reasonable person would know or understand that the image was to remain private; and NONCONSENSUAL DISSEMINATION OF PRIVATE SEXUAL IMAGES OKLA. STAT. TIT. 21, B, CONT D 4. Knows or a reasonable person should have known that the person in the image has not consented to the dissemination AEquitas 8

9 EXCEPTIONS OKLA. STAT. TIT. 21, b(C) 1. The dissemination is made for the purpose of a criminal investigation that is otherwise lawful; 2. The dissemination is for the purpose of, or in connection with, the reporting of unlawful conduct; 3. The images involve voluntary exposure in public or commercial settings; or 4. The dissemination serves a lawful purpose. DEFINITIONS OKLA. STAT. TIT. 21, b(A) IMAGE Includes a photograph, film, videotape, digital recording or other depiction or portrayal of an object, including a human body INTIMATE PARTS Means the fully unclothed, partially unclothed or transparently clothed genitals, pubic area, or female adult nipple SEXUAL ACT Means sexual intercourse, including genital, anal, or oral sex PEEPING TOM OKLA. STAT. TIT. 21, 1171 Using photographic, electronic or video equipment (or publishing/distributing image obtained from such act) In a clandestine manner For any illegal, illegitimate, prurient, lewd or lascivious purpose With unlawful and willful intent to view, watch, gaze or look upon any person Without knowledge and consent of such person When the person viewed is in a place where there is a right to a reasonable expectation of privacy 2018 AEquitas 9

10 PEEPING TOM OKLA. STAT. TIT. 21, 1171, CONT D Using photographic, electronic or video equipment In a clandestine manner For any illegal, illegitimate, prurient, lewd or lascivious purpose With unlawful and willful intent to view, watch, gaze or look upon any person Knowingly capturing an image of a private area of a person without that person s knowledge and consent Under circumstances in which a reasonable person would believe that the private area of the person would not be visible to the public, regardless of whether the person is in a public or private place PRIVATE AREA OF THE PERSON OKLA. STAT. TIT. 21, 1171 The naked or undergarment-clad genitals, pubic area, buttocks, or any portion of the areola of the female breast of that individual STALKING OKLA. STAT. TIT. 21, 1173 Any person who willfully, maliciously, and repeatedly follows or harasses another person in a manner that: 1. Would cause a reasonable person or a member of the immediate family of that person to feel frightened, intimidated, threatened, harassed, or molested; and 2. Actually causes the person being followed or harassed to feel terrorized, frightened, intimidated, threatened, harassed, or molested 2018 AEquitas 10

11 REBUTTABLE PRESUMPTION OKLA. STAT. TIT. 21, 1173 Evidence that the defendant continued to engage in a course of conduct involving repeated unconsented contact with the victim after having been requested by the victim to discontinue the same or any other form of unconsented contact, and to refrain from any further unconsented contact with the victim, shall give rise to a rebuttable presumption that the continuation of the course of conduct caused the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested. HARASSES OKLA. STAT. TIT. 21, 1173 A pattern or course of conduct directed toward another individual that includes, but is not limited to, repeated or continuing unconsented contact, that would cause a reasonable person to suffer emotional distress, and that actually causes emotional distress to the victim. Harassment does not include constitutionally protected activity or conduct that serves a legitimate purpose COURSE OF CONDUCT OKLA. STAT. TIT. 21, 1173 A pattern of conduct composed of a series of two or more separate acts over a period of time, however short, evidencing a continuity of purpose Constitutionally protected activity is not included within the meaning of course of conduct 2018 AEquitas 11

12 EMOTIONAL DISTRESS OKLA. STAT. TIT. 21, 1173 Significant mental suffering or distress that may, but does not necessarily require, medical or other professional treatment or counseling UNCONSENTED CONTACT OKLA. STAT. TIT. 21, 1173 Any contact with another individual that is initiated or continued without the consent of the individual, or in disregard of that individual's expressed desire that the contact be avoided or discontinued. Constitutionally protected activity not included within the meaning of unconsented contact. Unconsented contact includes but is not limited to any of the following: a. following or appearing within the sight of that individual, b. approaching or confronting that individual in a public place or on private property, UNCONSENTED CONTACT OKLA. STAT. TIT. 21, 1173, CONT D c. appearing at the workplace or residence of that individual, d. entering onto or remaining on property owned, leased, or occupied by that individual, e. contacting that individual by telephone, f. sending mail or electronic communications to that individual, and g. placing an object on, or delivering an object to, property owned, leased, or occupied by that individual 2018 AEquitas 12

13 IMMEDIATE FAMILY OKLA. STAT. TIT. 21, 1173 Any spouse, parent, child, person related within the third degree of consanguinity or affinity or any other person who regularly resides in the household or who regularly resided in the household within the prior six (6) months. COMMUNICATIONS OKLA. STAT. TIT. 21, 1172 Obscene, threatening, or harassing A. It shall be unlawful for a person who, by means of a telecommunication or other electronic communication device, willfully either: 1. Makes any comment, request, suggestion, or proposal which is obscene, lewd, lascivious, filthy, or indecent; COMMUNICATIONS OKLA. STAT. TIT. 21, 1172, CONT D 2. Makes a telecommunication or other electronic communication with intent to terrify, intimidate or harass, or threaten to inflict injury or physical harm to any person or property of that person; 3. Makes a telecommunication or other electronic communication, whether or not conversation ensues, with intent to put the party called in fear of physical harm or death; 2018 AEquitas 13

14 COMMUNICATIONS OKLA. STAT. TIT. 21, 1172, CONT D 2. Makes a telecommunication or other electronic communication with intent to terrify, intimidate or harass, or threaten to inflict injury or physical harm to any person or property of that person; 3. Makes a telecommunication or other electronic communication, whether or not conversation ensues, with intent to put the party called in fear of physical harm or death; COMMUNICATIONS OKLA. STAT. TIT. 21, 1172, CONT D 4. Makes a telecommunication or other electronic communication, whether or not conversation ensues, without disclosing the identity of the person making the call or communication and with intent to annoy, abuse, threaten, or harass any person at the called number TELECOMMUNICATION AND ELECTRONIC COMMUNICATION OKLA. STAT. TIT. 21, 1172 Any type of telephonic, electronic or radio communications, or transmission of signs, signals, data, writings, images and sounds or intelligence of any nature by telephone, including cellular telephones, wire, cable, radio, electromagnetic, photoelectronic or photo-optical system or the creation, display, management, storage, processing, transmission or distribution of images, text, voice, video or data by wire, cable or wireless means, including the Internet AEquitas 14

15 TELECOMMUNICATION AND ELECTRONIC COMMUNICATION OKLA. STAT. TIT. 21, 1172, CONT D The term includes: A communication initiated by electronic mail, instant message, network call, or facsimile machine; and A communication made to a pager JURISDICTION OKLA. STAT. TIT. 21, 1172 Any offense under this section is a continuing offense and shall be deemed to have been committed at either the place of origin or the place of reception EXTORTION OKLA. STAT. TIT. 21, 1481 Extortion is the obtaining of property from another with his consent, induced by a wrongful use of force or fear, or under color of official right AEquitas 15

16 ATTEMPTED EXTORTION YODER v. STATE, 493 P.2D 1141 (OKLA. CRIM. APP. 1972) Defendant contacted his ex-common law wife and threatened to release and distribute certain lewd photographs of her which he had taken during their marriage relationship unless she delivered to him a television set, stereo, range, refrigerator and a promissory note ATTEMPTED EXTORTION YODER, 493 P.2D 1141, CONT D Victim contacted the police and the defendant was apprehended prior to the delivery of any of the items The defendant denied making any threatening statements to the complaining witness and denied having any lewd photographs of her ATTEMPTED EXTORTION YODER, 493 P.2D 1141, CONT D In the instant case there was no evidence that any property was delivered to the defendant by the complaining witness with her consent In conclusion we observe that the evidence supports the filing of an amended Information charging the defendant with [attempted extortion] 2018 AEquitas 16

17 COMPUTER CRIMES OKLA. STAT. TIT. 21, 1953 It shall be unlawful to: 1. Willfully, and without authorization, gain or attempt to gain access to and damage, modify, alter, delete, destroy, copy, make use of, disclose or take possession of a computer, computer system, computer network or any other property; 2. Use computer, computer system, computer network or any other for purpose of devising or executing a scheme or artifice with intent to defraud, deceive, extort or for the purpose of controlling or obtaining money, property, services or other thing of value by means of a false or fraudulent pretense or representation; COMPUTER CRIMES OKLA. STAT. TIT. 21, 1953, CONT D 3. Willfully exceed the limits of authorization and damage, modify, alter, destroy, copy, delete, disclose or take possession of a computer, computer system, computer network or any other property; 4. Willfully and without authorization, gain or attempt to gain access to a computer, computer system, computer network or any other property CHALLENGES TO PROSECUTION Charging Investigating Victim Privacy Admitting Evidence Establishing Harm Victim Blaming 2018 AEquitas 17

18 CHARGING WEAPONIZATION OF FACEBOOK No comprehensive statute that addresses misuse of Facebook Patchwork Imperfect Untested Misdemeanor crimes Charging strategies required Multiple counts Multiple victims INVESTIGATING EVIDENCE ON FACEBOOK Victims may be asked to identify and preserve evidence Archive Facebook: Your Facebook Information Consent to assume online presence Limited information available with a subpoena Self-reported account information IP Addresses for logins INVESTIGATING EVIDENCE ON FACEBOOK, CONT D Search Warrant required for content from Facebook, computer or cell phone Preservation Letters Non-disclosure Orders Law enforcement portal: login/ 2018 AEquitas 18

19 INVESTIGATING, CONT D. IP ADDRESSES Fixed IP address assigned to a residence or business Pooled IP address owned by cell phone company and shared between users New Trend à IP6 which may be assigned to a cell phone user INVESTIGATING, CONT D IDENTIFYING FACEBOOK EVIDENCE Who? Victim Defendant Friends and Family What? Posts Private messages Comments Nonconsensual access TAINT TEAMS FACEBOOK RECORDS Search warrant gives law enforcement permission to search a device and seize certain items; e.g. photos of victim Typically, a forensic search of a cell phone downloads the entire contents of the phone Does law enforcement have permission to seize all photos? See United States v. Cutting, No. 14-CR SI-1, 2017 WL (N.D. Cal. Jan. 23, 2017) 2018 AEquitas 19

20 VICTIM PRIVACY FACEBOOK CONTENT Results from Facebook include entire account history Victims should be able to limit consent to information Defense subpoenas and motions to compel Is it relevant, material, or exculpable? Is it in the state s care, custody or control? Defense does not have the right to discovery from victim (non-party) See NATIONAL CRIME VICTIM LAW INSTITUTE (NCVLI), PENNSYLVANIA V. RITCHIE: SETTING LIMITS ON DEFENDANTS RIGHT TO DISCOVERY OF VICTIMS RECORDS (2006), available at see generally NCVLI, ute/ ADMITTING EVIDENCE FACEBOOK What are you trying to admit? How are you going to authenticate it? How are you going to link the evidence to the offender? WHAT ARE YOU ADMITTING? FACEBOOK Testimony Records Screenshot / photograph Forensic Report HTML document Manual Examination Video 2018 AEquitas 20

21 The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims it to be. Okla. Stat. tit. 12, 2901 AUTHENTICATION FACEBOOK EVIDENCE 1. Testimony that a matter is what it is claimed to be 4. Appearance, content, substance, internal patterns or other distinctive characteristics taken in conjunction with circumstances Okla. Stat. tit. 12, 2901 SOURCE OF AUTHENTICATION FACEBOOK EVIDENCE Business records Testimony from account owner Testimony from witnesses Stipulation of parties 2018 AEquitas 21

22 TESTIMONY ALONE U.S. v. BARLOW, 568 F.3D 215, 220 (5TH CIR. 2009) Evidence must be authenticated to support a finding that the matter in question is what its proponent claims Not a burdensome standard Testimony 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 LINKING THE EVIDENCE TO THE OFFENDER Device MAKING THE LINK FACEBOOK EVIDENCE Account Post Photo Message 2018 AEquitas 22

23 MAKING THE LINK CIRCUMSTANTIAL EVIDENCE Where was the device found? Who is the account registered to? What is the Facebook name? Is someone familiar with the regular use of the Facebook account? Who has access to the photographs? Are there words or phrases that are commonly used by the offender? Where is the IP address located? STATE v. PALERMO 129 A.3D 1020 (N.H. 2015) The State was not required to rule out all possibilities inconsistent with authenticity, or prove beyond any doubt that the Facebook messages were authored by the defendant May be authenticated by circumstantial evidence TIENDA v. STATE 358 S.W.3D 633, 638 (TEX. CRIM. APP. 2012) Evidence may be authenticated in a number of ways, including by direct testimony from a witness with personal knowledge, by comparison with other authenticated evidence, or by circumstantial evidence AEquitas 23

24 TIENDA 358 S.W.3D 633, CONT D Printouts of s, internet chat room dialogues, and cellular phone text messages have all been admitted into evidence when found to be sufficiently linked to the purported author so as to justify submission to the jury for its ultimate determination of authenticity. DIGITAL EVIDENCE COM. v. PURDY, 945 N.E.2D. 372, 379 (MASS. 2011) Here, because the relevance and admissibility of the communications depended on their being authored by the defendant, the judge was required to determine whether the evidence was sufficient for a reasonable jury to find by a preponderance of the evidence that the defendant authored the s. PURDY 945 N.E.2D AT 381, CONT D Evidence that the defendant's name is written as the author of an or that the electronic communication originates from an or a social networking Web site such as Facebook or MySpace that bears the defendant's name is not sufficient alone to authenticate the electronic communication as having been authored or sent by the defendant AEquitas 24

25 ESTABLISHING HARM WEAPONIZATION OF FACEBOOK Extensive harm Emotional Physical Financial Social Relational Professional Ability to participate online Presenting evidence to the Court Victim impact statements Testimony from victim, family, and friends With consent, service provider VICTIM BLAMING FACEBOOK AS A WEAPON Attitudes of investigators, prosecutors, judges, and juries If you don t want this to happen, don t take photos Boys will be boys attitude allows offenders to escape accountability Combat by focusing on offender s behavior, not victim s Betrayal of trust Weaponizing a trusted social media platform One piece of a power and control dynamic FACEBOOK AS A FORCE OF GOOD 2018 AEquitas 25

26 Access to Services Community Combat Isolation Facebook NATIONAL RESOURCES Without My Consent, Something Can be Done! Guide Cyber Civil Rights Initiative National Crime Victim Law Institute stitute/ GOING FORWARD Identify misuse of Facebook Charge offenders who weaponize Facebook Litigate admissibility of Facebook records Protect victim privacy 2018 AEquitas 26

27 WEBINAR RESOURCES Stop Calling it Revenge Porn: Investigating and Prosecuting Image Exploitation #GUILTY: Identifying, Preserving, and Presenting Digital Evidence Safeguarding Victim Privacy in a Digital World: Ethical Considerations for Prosecutors Available at AEquitas 27

28 Jane Anderson Attorney Advisor 1100 H Street NW, Suite 310 Washington, DC P: (202) F: (202) janderson@aequitasresource.org AEquitas 28