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Gone, But Not Forgotten: Evidence from the Archived Internet
The maxim that “what goes on the Internet, stays on the Internet” is not necessarily accurate. Online content from 20 years ago — even two days ago — may not be available in the same form today. Organizations such as the Internet Archive collect and preserve prior versions of Web pages that have since been edited or removed from the Internet entirely. This information is accessible to the public through a tool known as the Wayback Machine, which houses an ever-expanding “digital library” of over 400 billion archived Web pages, dating back to 1996.
As useful as evidence from the archived Internet can be in many white collar trials, admitting it into evidence is not always a straightforward proposition, as a number of recent cases show. Because evidence obtained from tools like the Wayback Machine is collected, stored and accessed through a third-party source, trial adversaries often challenge whether such evidence accurately represents what appeared on a website on a given date. Some courts will take judicial notice of the authenticity of material obtained from the archived Internet; more often, however, the proponent must lay a foundation with testimony from an employee of the archive about how its data is collected, recorded and made accessible.
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