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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.
For litigants looking to offer evidence that exists only on the archived Internet, such as a since-deleted Web page, the Wayback Machine is a useful tool indeed. In many white collar cases, evidence from the archived Internet can be of particular relevance. For instance, in United States v. Bansal, 663 F.3d 634 (3d Cir. 2011), the defendants were accused of running several websites that purported to be online pharmacies, but in fact allegedly advertised and sold controlled substances without prescriptions. Through the websites, customers could select the type, strength and quantity of a drug, place an order and make the payment. Using the Wayback Machine, the government obtained screenshots of the websites as they existed during the period when the crimes were said to have been committed and offered them into evidence. After hearing testimony from an employee of the Internet Archive, the district court found that the screenshots were sufficiently authenticated and admitted them into evidence. The jury convicted the defendants on all counts. On appeal, the Third Circuit agreed that the screenshots were properly authenticated.
Authenticating Digital Evidence
Federal Rule of Evidence 901(a) sets a relatively low bar for authenticating evidence: The proponent must simply lay a foundation sufficient to support a finding that the offered evidence is what the proponent claims it to be. If this bar is cleared, and the evidence admitted, the fact finder is tasked with evaluating the reliability of the evidence.
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