Obtaining and Using Deleted Internet Evidence
by Jason P. Bloom
The Internet permeates all aspects of modern life, facilitating communications, business transactions, news gathering and dissemination, advertisements and consumption, to a degree never accomplished by any other medium. As such, the Internet is increasingly a place where civil and criminal wrongs are committed and is, accordingly, a potential repository of evidence.
By its nature, however, the Internet is fluid and ever-changing. What is there and causing harm today could very easily be removed by the time a lawsuit is filed or discovery begins, only to rear its ugly head again when the dust settles. This can be especially applicable in cases involving defamation or intellectual property infringement in which the infringing or defamatory content needed to prove a plaintiff’s case can be removed by the defendant before the case is tried or even filed.
In a perfect world, plaintiffs or their attorneys will be able to capture evidence from the Internet when they see it, either by converting the pages to PDF documents or otherwise capturing the content in a permanent form. It is often the case, however, that potential litigants are not able to capture infringing, defamatory or other evidentiary content before it is removed from the Internet, either because they did not think or know to do so or because they did not envision future litigation at the time.
Fortunately, there is a tool known as the WayBack Machine, which enables one to travel back in cybertime to view and capture content from web pages as they once appeared. The WayBack Machine, which resides at www.archive.org,is a service provided by the Internet Archive, a non-profit organization that has been capturing and cataloging the Internet since 1996.
The WayBack Machine captures Internet data by use of a web crawler which crawls from webpage to webpage taking snapshots of the data as it appeared on a given day and time. The snapshots are then cataloged by URL and date. One need only know the URL of the website in question to use this free service.
While the Internet Archive maintains a multi-petabyte repository of historical web data, it is by no means a perfect and complete library of everything that was ever on the Internet. Most sites are not captured every day, but only periodically as the web crawler reaches them. And, those sites that are captured will not be accessible through the WayBack Machine for 6 to 24 months. Moreover, the WayBack Machine does not capture password protected sites or sites where the webmaster has taken appropriate steps, such as including a robot.txt file, to prevent the crawler from capturing the site.
Despite these shortcomings, the WayBack Machine is often an extremely useful litigation tool that can provide crucial evidence of content that has been removed from the Internet. Such evidence may be of little value, however, unless it is deemed admissible.
The primary obstacles to the admission of evidence obtained from the WayBack Machine are authentication and hearsay. See Fed. R. Evid. 802, 901. The authentication obstacle may generally be satisfied by an affidavit from the Internet Archive explaining how the WayBack Machine works and identifying the pages at issue as printouts from the Internet Archive’s records. The Internet Archive will provide its standard notarized affidavit to that effect for a fee of $350 (plus $20 per authenticated URL). For an additional cost, the Internet Archive can increase the scope of the request and may even modify its standard affidavit to fit the needs of a particular case, although the standard affidavit should generally be sufficient to satisfy Rule 901.
As for hearsay, it is often the case that archived data is not being offered for the truth of the statements on the website, but rather to show that untrue defamatory statements were made or that infringing material was displayed. Also, the archived pages may contain non-hearsay admissions of the offering party’s opponent. In those instances, the hearsay rule would not bar admission of the archived pages. The Internet Archive’s affidavit may also be used to overcome a hearsay objection by establishing that the archived pages fall under the business records exception. See Fed. R. Evid 803(6).
A number of courts have admitted evidence obtained by use of the WayBack Machine, and the use and admission of such evidence is likely to rise as familiarity with the Internet Archive and the need for Internet evidence continues to grow. Knowing how to use the WayBack Machine and authenticate evidence derived from it is an invaluable tool for any litigator to have.
Jason Bloom is an attorney in the Business Litigation, Intellectual Property Litigation, and Social Media practice groups at Haynes and Boone, LLP. He can be reached at firstname.lastname@example.org.