Preserving and Authenticating YouTube, TikTok and Other Online Videos in Court

In the rise of video use on social media, news websites, and across the internet, video platforms such as YouTube, TikTok, and others serve as vital sources of evidence. As a result, legal professionals face challenges in authenticating video content for use in court. This task requires an understanding of both technological and legal nuances.

The Challenges of Video as Evidence

When researching and collecting evidence for a case, a video can be a powerful tool. Video is commonly seen in opening and closing arguments, as supplemental exhibits, or even as the “smoking gun.” However, the digital landscape and its ephemeral nature creates obstacles for legal professionals seeking to use online videos as evidence. Common challenges to relying on video as evidence include:

• Having proper tools for collection: When faced with collecting video evidence, many law firms only have free or low-cost screen recording tools at their disposal. These tools often diminish the quality of the video, can be a manual process, present chain of custody issues, and lack necessary metadata to authenticate the video.
• Timely review and collection: Legal professionals often have a short window of time to review and preserve videos for use as evidence before they are deleted. Thus, they must be collected in a way that is fast and meets authentication requirements.
• Deleted video evidence: Given the challenges presented above, searching for deleted videos is unfortunately a common occurrence. This typically requires lawyers to resort to the Wayback Machine, which can be limited in availability and often presents admissibility limitations. In criminal cases, law enforcement officials may be able to recover deleted TikTok videos by following its request guidelines, however, the timeline is unclear and the process may not guarantee a result.
• Anonymity of users: The anonymity of YouTube and other social media platforms makes it difficult to identify uploaders or subjects in the video.

Authenticating Video Evidence: A Multi-Faceted Approach

1. Circumstantial Evidence

Circumstantial evidence can enhance the credibility of video evidence. As defined by Cornell Law Legal Information Institute:

Circumstantial evidence is indirect evidence that does not, on its face, prove a fact in issue but gives rise to a logical inference that the fact exists. Circumstantial evidence requires drawing additional reasonable inferences in order to support the claim.

 The context in which a video was uploaded, including the date, time, and even accompanying social media reactions such as likes and comments, can provide valuable insights into its authenticity and relevance to the case at hand.

2. Expert Testimony

The engagement of third-party video forensics experts can help preserve, authenticate, and provide reliable expert witness testimony for cases using videos as evidence. Additionally, these experts can aid in anonymity concerns by using techniques such as voice and facial recognition to aid in identification. In today’s era of deepfakes, digital forensics experts can also help determine if videos are fake, or AI generated.

3. Maintaining Digital Chain of Custody

Properly documented chain of custody establishes that: 1) when the record was originally produced, it accurately recorded the webpage in question, and 2) the record was not subject to alteration from the point of collection until presentation in court. When legal professionals are relying on low-cost browser tools to capture video evidence themselves, this compromises the chain of custody. Whereever possible, it is recommended to stay out of the chain of custody altogether and use a third-party expert or self-authenticating software to collect online video evidence.

4. Ensure Metadata

Underlying the surface of a video is a vast amount of information that further proves its authenticity. Simple screen recordings commonly fall short in their collection of metadata. This includes information such as: date and timestamps, browser or operating system, IP addresses, users, hash values, and URLs.

Effective Collection Methods

Digital video evidence must be authenticated pursuant to Federal Rule of Evidence (“FRE”) 901 in order to be admissible in court. FRE 902(13) allows certain evidence regarding “an electronic process or system that produces an accurate result” to be self-authenticating through “a certification by a qualified person.” This includes evidence regarding the process for videos found online.

Due to its patented technology, Page Vault keeps the user out of the chain of custody. Therefore, Page Vault can serve as the “qualified person” to provide the required certification under FRE 902(13).

Page Vault's Chain of Custody Architecture

As the amount of online video evidence in legal cases grows, along with the challenges in verifying its authenticity, creating a strategy for its correct collection and preservation becomes essential for those in the legal field.