United States v. Vayner
769 F.3d 125 (2014)
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Rule of Law:
To authenticate a social media profile as belonging to a specific individual under Federal Rule of Evidence 901, the proponent must produce evidence sufficient to support a finding that the individual created or is responsible for the page. The mere fact that the page contains the individual's name, photograph, and other publicly known details is insufficient on its own to authenticate it.
Facts:
- Vladyslav Timku and Aliaksandr Zhyltsou were friends who had previously worked together creating false documents for a tax avoidance scheme.
- In the summer of 2009, Timku asked Zhyltsou to create a forged birth certificate for an invented child to help Timku avoid compulsory military service in Ukraine.
- According to Timku, Zhyltsou agreed to create the certificate as a favor and worked on it at a Brooklyn Internet café.
- On August 27, 2009, Timku received an email with the forged birth certificate as an attachment.
- The email was sent from the address 'azmadeuz@gmail.com', which Timku claimed was an address he often used to correspond with Zhyltsou.
- The government discovered a profile page on VK.com, a Russian social networking site, under the name 'Alexander Zhiltsov.'
- The VK.com profile contained a photograph of Zhyltsou, listed his employer as 'Martex International' (an entity connected to both men), and listed his Skype username as 'Azmadeuz'.
Procedural Posture:
- The United States prosecuted Aliaksandr Zhyltsou in the U.S. District Court (trial court) for unlawful transfer of a false identification document.
- At trial, the government sought to admit a printout of a VK.com social media profile page allegedly belonging to Zhyltsou.
- Zhyltsou objected, arguing the government had not properly authenticated the page under Federal Rule of Evidence 901.
- The trial court overruled the objection and admitted the evidence.
- A jury found Zhyltsou guilty.
- Following the entry of judgment, Zhyltsou (appellant) appealed his conviction to the U.S. Court of Appeals for the Second Circuit, with the United States as the appellee.
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Issue:
Does a printed copy of a social media profile page meet the authentication requirement of Federal Rule of Evidence 901 when the only evidence linking it to the defendant is that it contains his name, photograph, and other biographical information known to third parties?
Opinions:
Majority - Livingston, J.
No. A printed copy of a social media profile page does not meet the authentication requirement where the proponent fails to provide sufficient evidence for a reasonable juror to conclude that the page was created by or is attributable to the defendant. The government claimed the VK.com page was Zhyltsou’s own profile, and thus had the burden under Rule 901 to produce evidence supporting that claim. The court found the evidence presented—the presence of Zhyltsou's name, photo, and other details—was insufficient because all of this information was known by the government's primary witness, Vladyslav Timku, who had a motive and the expertise to create a fake profile to implicate Zhyltsou. The government presented no extrinsic evidence, such as testimony from someone who communicated with Zhyltsou through the account or information about VK.com's identity verification process, to connect Zhyltsou to the page. Because the government's case relied heavily on the testimony of the highly impeachable witness, Timku, the admission of the unauthenticated profile as corroboration was a prejudicial error, not a harmless one.
Analysis:
This decision establishes a significant precedent in the Second Circuit for the authentication of social media evidence, clarifying that mere superficial identifiers like a name and photo are insufficient. It compels litigants to provide more substantial proof of authorship or control, such as technical data from the platform, testimony from witnesses who interacted with the user online, or evidence of unique information on the page known only to the purported author. This raises the bar for admitting social media evidence and serves as a safeguard against the potential for digital fabrication, especially in criminal cases where a cooperating witness could create false evidence to bolster their testimony. Future cases will likely require a more rigorous foundational showing before such evidence can be presented to a jury.
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