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Just because an Instagram message comes from somebody's account doesn't mean he actually sent it, court rules

The Massachusetts Appeals Court today overturned a man's conviction for disobeying an order not to contact a former girlfriend, saying prosecutors failed to prove that he actually sent her an Instagram message that had his account name linked on it.

In 2018, the Grafton man was convicted of violating a domestic-abuse prevention order for allegedly sending a woman he'd dated for five months a message on Instagram that read, in its entirety: "Yoooo." The woman reported the message to police and the man was hauled into criminal court, convicted in a trial before a judge and given a sentence of two months of probation.

In its ruling overturning the conviction, however, the court said prosecutors did not provide any proof that the man was actually the one who logged into his account and sent the message.

Here, even assuming without deciding that the Instagram message was properly authenticated, the Commonwealth failed to meet its higher burden of proving beyond a reasonable doubt that the defendant was the person who wrote or sent the message to the victim. Although the evidence was sufficient to show that the Instagram account was the defendant's and that he could access it, there was no circumstantial evidence establishing authorship. Nothing about the content or tone of the message, "Yoooo," corroborated that the defendant wrote it. The message did not refer to any prior conversation between the parties or contain other distinctive characteristics. Cf. Oppenheim, 86 Mass. App. Ct. at 368 (evidence sufficient to authenticate that defendant wrote instant message, where tone was familiar to recipient, and message referred to earlier discussions with recipient and personal details about defendant). In fact, contrary to the Commonwealth's assertion, the evidence did not even show that the defendant previously sent the victim messages through Instagram.

The court added:

Although the Commonwealth cites the fact that the defendant needed a passcode to open his cell phone, this does not tip the scale in favor of sufficiency because the Commonwealth offered no evidence that a cell phone is the only, or even primary, means of accessing an Instagram account. In fact, the officer testified that Instagram accounts can be accessed from multiple devices, such as tablets and desktop computers. The Commonwealth also put in no evidence to show (nor does it argue on appeal) that a message appearing on an Instagram cell phone application is akin to a text message on a cell phone or to an e-mail downloaded to a computer hard drive. Cf. Purdy, 459 Mass. at 450-451. Thus, that the message appeared when the defendant opened the Instagram application is not proof that he used his cell phone to send it. The Commonwealth conceded as much at oral argument.

The court also pointed to the weakness of the prosecution's case in a footnote:

On direct examination the Commonwealth asked the victim, "And before you had your restraining order, you had previously talked to the defendant on Instagram messenger . . . using this name?" While the victim answered, "Yes," no evidence was offered to explain the meaning of "Instagram messenger." It is unclear whether the Commonwealth was referring to Instagram generally or a feature or application; if the latter, there was no evidence regarding how such a feature or application works or even whether something called "Instagram messenger" exists. Moreover, in response to the follow-up question -- "[H]ow often would you say you communicated with the defendant via Instagram?" -- the victim stated only, "We liked each other's posts." Then, on cross-examination, the victim confirmed that her Instagram communication with the defendant was limited to "liking posts and comments."

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Comments

Would a friend request on social media constitute a violation of an order? Being tagged in a direct message to the victim?

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Voting closed 3

What in the world would have constituted proof here? Lots of people have access to telephones; is the prosecution now going to have to come up to with an eye-witness the next time an abuser calls his or her victim?

If someone has a restraining order against them I really don't think it is too much to ask them to make sure their passwords are secure!

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Voting closed 22

The post above directly states what would have constituted evidence.

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Voting closed 5

Did the abuser send the message? Probably. But "probably" isn't "beyond a reasonable doubt", so he can't be convicted.

The prosecution should have subpoenaed records from Instagram to obtain the IP address the message was posted from, and then subpoenaed records from whatever Internet Service Provider owns that IP address to see which account it was assigned to at the time. That would probably establish that the message came from a device controlled by the abuser. If that didn't work out, Instagram may (many apps do) record unique IDs that would correspond to the user's specific device, which is another way of establishing the same thing. I think that would meet a reasonable doubt standard.

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Voting closed 3

In today's world even kids know some fo the back-end possibilities especially iof they are tech inclined. It is possible to change the data sent by a web browser to make a server thing it is a different brand. For example you could be using a Firefox browser but tell the server you are connecting that it is Google Chrome. If you are really a techie type you can also change the Media Access Code (MAC) address of a computer, thus spoofing the trie identity of even the computer itself. WiFi signals can be cracked as well. Ever heard of "War Driving?"

The amateurs can be easily checked by just checking things like an e-mail header data but a really good person can make it look oh-so real.

So unless they were to pull all of the records necessary to link the message to the originaing IP address at his home, or link it to his MAC address, the state really doesn't have a case. The data is there, and while it can be spoofed, in most cases that is unlikely. However for a solid stance, you need the paper trail and the pedigree back to the originating machine. Even then... what if he loaned it to someone and his password was stored on the device?

So many possibilities. State failed on this one.

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Voting closed 4

"The message did not refer to any prior conversation between the parties or contain other distinctive characteristics. Cf. Oppenheim, 86 Mass. App. Ct. at 368 (evidence sufficient to authenticate that defendant wrote instant message, where tone was familiar to recipient, and message referred to earlier discussions with recipient and personal details about defendant)"

I can see how it's different from a technical perspective.

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Voting closed 6

So what proof would the court accept?

If a defendant wants to claim someone else used their account because a phone or device was left unlocked, that should be an affirmative defense.

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One is context: A message that refers to events or issues only the two parties know about. "Yoooo" clearly wasn't that.

There is also geeky stuff that, at least on the federal level, investigators and prosecutors use all the time. You subpoena records from Instagram that shows the IP address the message was posted from. Then you subpoena records from the guy's ISP or phone provider. Compare those, and look at the times his device(s) connected to Instagram.

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Voting closed 5

It’s also not hard to make a Snapchat/Instagram /facebook account with a bogus email.

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