Communication Data as Evidence: Discovering The Tweeter Behind the Tweet

Submitted by internet sex crime lawyer, Jeffrey Hark

Internet Sex Crimes and Technology

State v. Brown, decided September 11, is an interlocutory appeal by the State from the grant of the defendant’s motion in limine that required the State to produce an expert to explain internet service provider and cell phone records. The State wanted to introduce these records in order to prove that the defendant uploaded a video of his former girlfriend undressing. This alleged act resulted in an indictment of two counts of third degree invasion of privacy. An interlocutory appeal, or interim appeal, is an appeal that occurs before all claims are resolved.

Rule 104 Hearing and Technology

The Appellate Division reversed and remanded for a Rule 104 Hearing. Rule 104 refers to preliminary questions about whether a witness is qualified, a privilege exists, or evidence is admissible. This issue here was that in order for the State to prove that the video was uploaded by the defendant they had to issue a series of subpoenas to Blackberry and Microsoft in order to track down IP addresses and information about download times of Twitter applications as well as email addresses.
The defendant argued that this process was too technical for a jury to understand or make a decision of fact on without an expert witness. The State disagreed. The Appellate Division concluded they did not have the record necessary to determine who was right but rather remanded the matter for a Rule 104 Hearing by the lower court. However the Appellate Division did note that they themselves had significant trouble understanding the technical process associated with discovery of who was using a particular electronic device at a particular time so a jury would likely have trouble as well.

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