When is a tweet not an admissible tweet? Closing the authentication gap in the Federal Rules of Evidence.

• Author: Carlson, Siri
• Position: COMMENT

INTRODUCTION I. THE LENS OF SOCIAL MEDIA A. General Features of Social Media B. Social Media Content as Evidence II. CURRENT APPROACHES TO SOCIAL MEDIA EVIDENCE AUTHENTICATION A. The Applicable Federal Rules B. Recent Developments Regarding Changes to the Rules 1. Fitting New Evidence into Old Rules: Inconsistent Outcomes 2. Modernizing the Rules for Modern Evidence III. SUGGESTIONS FOR AMENDING RULE 901 CONCLUSION INTRODUCTION

Whether referred to as the Information Age or the Digital Age, today's world is awash in just that: digital information. The creation, communication, and storage of digital information have transformed over the past three decades. Today, people use computers, tablets, and smartphones to share public and private messages, photographs, and videos with each other. In particular, communication through social media platforms has increased dramatically over the past fifteen years. While it is challenging to predict what communication advances will be made in the coming years, increasing use of digital communications such as social media suggests that global reliance on these methods of connecting will only continue to grow. (1) s

The proliferation of social media has naturally led to the increased use of information found on social media to resolve legal disputes. In criminal and civil cases, evidence obtained from social media helps the parties tell their stories and provides proof of disputed facts. (2) As with all evidence, concerns over relevance, (3) authenticity, (4) prejudice, (5) and reliability arise. (7) However, evidence from social media and other digital communications create distinct admissibility concerns. Debates over authenticity of digital evidence fall into two distinct yet overlapping categories of inquiry: normative and procedural.

On a normative level, the debate centers on whether the threshold inquiry for authentication should be more than the minimal showing currently required under the Federal Rules of Evidence (Rules) 901 and 104. (8) Even if one accepts the current, minimal threshold for authentication, a procedural question still exists under the current Rules: Can the suggested modes of authentication provided in Rule 901 adequately guide courts in admitting these new forms of evidence, or do concerns over digital evidence authenticity require specific guidance?

While the Rules provide multiple, nonexhaustive illustrations for authenticating evidence, (9) application of these examples has divided both state and federal courts over the appropriate authentication method and the sufficient threshold authenticity requirement for social media and other digital communications. (10) The inconsistencies in application and outcome suggest that modifications specifically addressing these new forms of communication would better promote uniform and consistent admissibility rulings to a greater degree than continued, albeit creative, application of the current authentication examples under Rule 901. (11)

Social media communication is only part of the larger field of digital communications, including email and text messaging, and the even broader field of electronically stored information such as computer files. However, the growing use of social media--combined with courts' differing approaches to authentication--provides a good lens for viewing the shortcomings of applying the current Rules to newer communication formats. (12) The Rules' authentication requirements have not changed since the inception of now-widely utilized advances in communication technology. (13) Yet many scholars and even courts do not advocate for revising authentication requirements. (14) They point to the current Rules' nonexhaustive nature, the ability to combine examples to authenticate digital evidence, (15) the challenge of creating an effective Rule, (16) and the inevitability of a cohesive approach once courts apply the current Rules in a similar fashion. (17) However, the increasing need for and the continued inconsistencies in admitting social media and other digital communications support modifying the Rules to contain explicit procedures for authenticating these types of evidence. (18)

By providing clear guidance on how to sufficiently authenticate digital communications for admissibility purposes, the Rules can address some of the mistrust of newer communication formats and appropriately cabin this consideration from the threshold determination. (19) This approach is preferable to one in which courts establish guidance over time. (20) After nearly two decades of exposure to the new communication technologies and their widespread and growing use, alterations to the Rules for authentication are appropriate. (21) Social media's widespread popularity provides a wealth of digital evidence available for litigation. This evidence will only increase in amount and salience in both civil and criminal litigation. Authenticity of this type of evidence is a threshold consideration directly affecting its relevancy and ultimate admissibility. (22) As such, creating uniform authentication procedures for social media content and other digital communications grows in urgency as access to, use of, and the variety of this information continues to expand. (23)

Part I of this Comment provides a brief overview of social media and its increasing prevalence as a communication tool and as evidence. Part II examines the current approach to authentication under Rule 901, including its application in federal court decisions, and the need to address the gap (24) in authentication for digital communications. Finally, Part III discusses possible updates for the Rules by synthesizing multiple commentators' approaches and proposing changes to the Rules that would improve consistency to rulings on admissibility.

1. THE LENS OF SOCIAL MEDIA

   Most readers will have at least a passing familiarity with various forms of social media. Due to widespread use, the functions associated with websites such as Facebook, Twitter, and MySpace are part of general cultural and societal understanding, both in the United States and abroad. (25) Websites such as LinkedIn, YouTube, and Instagram, (26) and platforms in other countries such as VK.com (formerly Vkontakte.ru), (27) continue to grow in popularity. (28) Due to both the general knowledge of and the wide variance in the details and features of the various platforms, this Section seeks only to highlight the salient, general qualities of social media platforms needed for the remaining discussion. It also briefly addresses the growing use of social media platforms both socially and as evidence in legal proceedings.

   1. General Features of Social Media

      Social media is defined as "forms of electronic communication (such as Web sites for social networking or microblogging) through which users create online communities to share information, ideas, personal messages, and other content...." (29) While the term "social media" at one point (30) encompassed media such as blogs, social network sites, collaborative sites (including Wikipedia, a collaborative online encyclopedia), and "content communities," such as YouTube, (31) many types of earlier social media, including those focused on sharing specific types of content, have now incorporated what would have earlier been defined as purely social networking site (SNS) features into their structures. (32) Because of this overlap in use, this Comment refers to social media and SNS interchangeablely.

      Social media and other digital communication formats are part of a broader category of electronically stored information and share some characteristics with other types of electronically stored information. (33) For example, the private messaging feature of social media sites is similar to both email and text messaging. (34) However, much of social media content is accessible publicly, including the ability to leave public written messages to other users. (35) The "profile" of an individual user is a "unique page" usually containing descriptions of the individual including current and historical demographic, geographic, and personal information such as an individual's interests. (36) These profiles may be completely public or accessible only to those permitted access. (37) Beyond these standard features, social media platforms vary greatly in their features, target content, and users.

      Since its relatively recent inception, social media has grown in its accessibility and in global use. (38) Some brief statistics highlight this trajectory. From an initial site with limited use in 1997, there were hundreds of social media platforms by 2008. (39) By 2014, seventy-one percent of all American adult internet users utilized Facebook and fifty-two percent used two or more social media sites. (40) Currently, two popular sites, Facebook and Twitter, claim over one billion active users (41) and 316 million monthly active users, (42) respectively. Other sites continue to increase in membership and use. (43) Accessibility is also increasing, as users can access social media through their computers, smartphones, and tablets, with companies creating mobile platforms specifically for noncomputer use. (44)

      The use of social media in current political and social movements, both nationally (45) and internationally, (46) demonstrates the widespread prevalence of this digital communication format. One widely discussed and well-known domestic example of social media's value in connecting people over wide distances began in August 2014 when protesters used social media, particularly Twitter, to organize and document activist and police interactions surrounding the fatal shooting of teenager Michael Brown by a police officer in Ferguson, Missouri. (47) This distinct form of on-the-ground documentation of events may be implicated in legal ramifications stemming from these movements. (48) Increasingly, political campaigns also utilize social media platforms to connect...