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The Threat of Deepfakes in Litigation: Raising the Authentication Bar to Combat Falsehood

Posted by on Friday, April 9, 2021 in Articles, Volume 23, Volume 23, Issue 2.

Agnieszka McPeak | 23 Vand. J. Ent. & Tech. L. 433 (2021)

Deepfakes are all over the internet—from shape-shifting comedians and incoherent politicians to disturbingly realistic fake pornography. Emerging technology makes it easier than ever to create a convincing deepfake. What used to take significant time and money to develop is now widely available, often for free, thanks to rapid advances in deepfake technology.

Deepfakes threaten individual rights and even democracy. But their impact on litigation should not be overlooked. The US adversarial system of justice is built on a foundation of seeking out the truth to arrive at a just result. The Federal Rules of Evidence serve as an important framework for this truth-seeking mission, and the authentication rules, in particular, should play a key role in preventing deepfake evidence from corrupting the legal process.

This Article looks at the unique threat of deepfakes and how the authentication rules under the Federal Rules of Evidence can adapt to help deal with these new challenges. It examines authentication standards that have emerged for social media evidence and suggests a middle-ground approach that redefines the quantity and quality of circumstantial evidence necessary for a reasonable jury to determine authenticity in the age of deepfakes. This middle-ground approach may raise the evidentiary bar in some cases, but it seeks to balance efficiency with the need to combat falsehood in the litigation process.

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Agnieszka McPeak