In December of 2017, a UK inmate was freed after years in prison when deleted social media messages disproved the allegations against him.
Danny Kay was accused of rape in 2013. A key piece of evidence was a social media conversation between Kay and his accuser, in which he appeared to be apologizing for nonconsensual sex. Kay maintained that the conversation shown to the jury was incomplete, but he believed the full conversation had been deleted and could not be retrieved. Fortunately for him, a fellow inmate convinced Kay that the conversation could be recovered. Kay’s sister-in-law logged in to his account and found an archived version of the messages in just a few minutes. Mr. Kay challenged his conviction, which the Court of Appeal in London overturned, finding that the full exchange supported Mr. Kay’s version of the story.
An interesting twist on the facts in the Kay case could arise through the use of a newer form of social media—apps that cause their messages to “self-destruct.” Snapchat and other social media platforms now contain features that allow their users to send messages, pictures, and videos that will vanish after a set period of time. Ironically, Snapchat’s own ghost logo perfectly captures the notion that your vanishing messages may come back to haunt you.
The idea that your self-destructing messages disappear forever is a common misconception as we have previously written. Nevertheless, ephemeral messaging apps have made some social media users brazen and overconfident. One group of teens even felt comfortable enough to send “Snaps” of themselves smiling next to the caption, “Robbed dairy queen tip jar.” The group did not make it far before being turned in to police, which is not surprising given the variety of methods by which disappearing messages can be saved or retrieved. Many Snapchat users, for instance, save “Snap” messages and photographs by taking screenshots on their phone, or by using another device to capture a separate video or picture of the message playing on the phone. Snap Inc. has also stated that it might provide unopened or saved Snaps to law enforcement in limited circumstances. Additionally, it may come as a surprise that you might be able to retrieve “disappearing” social media evidence through forensic tools. Some digital forensics firms have managed to re-access Snapchat messages, including viewed messages that had expired, and this service has already been used in divorce and missing teenager cases.
If attorneys can learn to use and present it in the right way, self-destructing social media evidence could become an extremely valuable asset in the courtroom. Even when messages could not be retrieved, forward-thinking attorneys have found novel solutions to the obstacles created by disappearing evidence. In one case, prosecutors worked with a student who had viewed a Snapchat video to prepare a “re-creation” of the lost video. The defense inexplicably raised no objection, and the court admitted the video into evidence.
This discussion can serve as a lesson for attorneys to stay abreast of developments in technology and social media. A diligent attorney will not fall prey to the illusion that Snapchat messages are lost forever, but will research and craft creative arguments regarding the admissibility of the evidence. In a new age of ephemeral social media, both attorneys and social media users should take heed that their self-destructing messages may be more permanent than they seem.
