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Financial Services Law Insights and Observations

Maryland Appeals Court Rules Printed MySpace Page Not Properly Authenticated & Provides Guidelines

State Issues

On April 28, Maryland’s highest court overturned a lower court that had ruled the MySpace profile page of a convicted murderer’s girlfriend was properly authenticated evidence. The girlfriend’s profile page, used by the prosecution at trial, contained threatening statements allegedly made by the defendant, the defendant’s unique nickname, pictures of the defendant and his girlfriend, and a reference to the girlfriend’s birthday. Testimony was also presented linking the defendant with his nickname and the girlfriend with her profile picture In Griffin v. Maryland, 2011 WL 1586683, No. 74 (Ct. App. Md., Apr. 28, 2011), the court of appeals held that more is required when dealing with printouts from social networking sites, noting that anyone can set up a fake account on MySpace and "masquerade under another person’s name or . . . gain access to another’s account by obtaining the user’s username and password[.]" Finding that the lower court simply "failed to acknowledge the possibility or likelihood that another user could have created the profile in issue or authored the [threatening statements]," the appeals court observed that electronically stored information, "with its potential for manipulation, requires greater scrutiny of the ‘foundational requirements’ than letters or other paper records, to bolster reliability," and went on to hold that such potential "requires a greater degree of authentication [of an image printed from such a site] than merely identifying the date of birth of the creator and her visage." The court then went on to offer specific guidelines for proper authentication of such information: first, the purported creator of the profile or posting should be asked whether he created it; second, digital forensics should be performed on the purported creator’s computer; and, finally, information should be obtained directly from the social networking site that links the profile to the person allegedly creating it. Significantly, none of these steps had been taken at trial in Griffin.

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