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When Is a Tweet Not an Admissible Tweet? Closing the Authentication Gap in the Federal Rules of Evidence

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. As with all evidence, concerns over relevance, authenticity, prejudice, and reliability arise. 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. 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, 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. 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.

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. The Rules’ authentication requirements have not changed since the inception of now‐widely utilized advances in communication technology. Yet many scholars and even courts do not advocate for revising authentication requirements. They point to the current Rules’ nonexhaustive nature, the ability to combine examples to authenticate digital evidence, the challenge of creating an effective Rule, and the inevitability of a cohesive approach once courts apply the current Rules in a similar fashion. 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.