If a web user posted something anonymously, or claims that a page with their name and picture is not authentic, how can it be used against them in criminal court? The process starts with Evidence Code § 1552, which states that a printed representation of computer information or a computer program is presumed to be an accurate representation. That means that a printout of a website is presumed to really be from the website displayed, unless some other evidence can show that it is not. This does not mean that everything on the page is presumed true, or can even be used in court, but it overcomes a hurdle of proof for using websites in court.
The next step that prosecutors will use to uncover a person’s identity online is to subpoena the records from the service provider, such as Verizon or AT&T. This will give the IP address of the router used to upload content, as well as the names and addresses associated with the account. An IP address is simply a number that identifies the internet browser being used. While IP addresses are not permanent, they often remain unchanged for long periods of time. This can create strong evidence to prove a user’s identity, regardless of the avatar or moniker that they employ online.
Legal Presumptions Assume AuthenticitySome users may be savvy enough to use rotating IP addresses or TOR browsers when they are online. But the vast majority of users are unaware of how easily they can be identified online. To an individual with a deep understanding of website security, these descriptions may seem overly simplistic. But the level of technological understanding in the court system is regularly very simplistic. In the case of Kinda v. Carpenter, the California Court of Appeals detailed the technological and legal misunderstandings of a trial court judge. Even though two separate IP addresses led to the defendant’s home and business addresses, and there was compelling motive for him to write the reviews, the court found that the website records from the internet service provider could not be connected to the defendant, and the evidence could not be presented to a jury.
The appellate court noted that there was plenty of evidence to authenticate the records, and to meet the authentication threshold for admitting the evidence and showing it to the jury. While some parts of the web content could be excluded on other grounds, the appellate court largely directed that the jury decide whether the evidence was compelling.
It is common for judges to have a limited understanding of the technology and the culture of online communities. It is important to have an attorney who is knowledgeable about the intersection of the online world and the criminal justice system. Such an attorney can educate the judge, and ensure that damaging evidence is not presented to a jury simply because a judge does not understand the way data can be processed and manipulated.
If you or a loved one is facing criminal prosecution for online activity, it is very important that you speak with a Los Angeles Criminal Defense Lawyer immediately. Los Angeles Criminal Defense Attorney Michael Kraut is a former Deputy District Attorney with over 14 years of prosecutorial experience. In many cases, Mr. Kraut is able to intervene early on in the investigation process in order to have charges significantly reduced or rejected altogether. Mr. Kraut is highly respected within law enforcement and prosecutorial agencies for his dedication to his clients and knowledge of the law.
For more information about how online evidence could be used against you, and to schedule your free consultation, contact Los Angeles Criminal Defense Attorney Michael Kraut at the Kraut Criminal & DUI Lawyers located at 6255 Sunset Boulevard, Suite 1520, Los Angeles, CA 90028. Mr. Kraut can be reached 24/7 at 888-334-6344 or 323-464-6453.