The WABAC on the Wayback Machine – Proving Up Internet History

Every TV-literate American of my generation knows that Mr. Peabody and his boy, Sherman, invented a time machine, the “WABAC machine,” which allowed them to travel back in time to explore, and to alter, historical events. The Rocky and Bullwinkle Show. My children know that the universe began with the creation of the internet, and that all you need to visit the past is the Wayback Machine, at http://archive.org/index.php

The content of the internet is not static; webpages come and go.  The Wayback Machine periodically archives snapshots of webpages, and makes them available for review.  The Wayback Machine has great utility for investigative journalists, historians, and, of course, lawyers.  See Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey, 497 F. Supp. 2d 627 (E.D. Pa. 2007) (describing the Internet Archive as “a nonprofit organization that has created an online library of digital media in an effort to preserve digital content for future reference. Its digital database is equivalent to a paper library, but is filled with digital media like websites instead of books. The library includes a collection of chronological records of various websites which Internet Archive makes available at no cost to the public via the Wayback Machine. The library’s records include more than 85 billion screenshots of web pages which are stored on a computer database in California. Internet Archive’s database provides users with the ability to study websites that may have been changed or no longer exist.”).

A few years ago, when I was practicing in Philadelphia, an out-of-town firm filed over 100 silicosis cases in the Court of Common Pleas.  The cases were generated by screenings funded and organized by the plaintiffs’ firm.  The plaintiffs’ and defense counsel tussled over the propriety of the screenings, and the plaintiffs’ firm insisted that it did not historically conduct radiographic screenings for pneumoconiosis cases.  A simple search for the plaintiffs’ firm’s website, on The Wayback Machine, told a different story.   See Schachtman, “State Regulators Impose Sanction for Unlawful Silicosis Screenings,” 17(13) Wash. Leg. Fdtn. Leg. Op. Ltr. (May 25, 2007).

Proving the past content of the plaintiffs’ firm’s website never became an issue in the Philadelphia silicosis issue, but the Wayback Machine has figured in other litigation where authentication was required.  United States v. Bansal, 663 F.3d 634 (3d Cir. 2011);  Keystone Retaining Wall Sys., Inc. v. Basalite Concrete Prods., LLC, 2011 U.S. Dist. LEXIS 145545, n.9 (D. Minn. Dec. 19, 2011) (noting that federal courts have regularly accepted evidence from the Internet Archive); St. Luke’s Cataract & Laser Inst., P.A. v. Sanderson, No. 8:06-CV-223, 2006 U.S. Dist. LEXIS 28873, at *6, 2006 WL 1320242, at *2 (M.D. Fla. May 12, 2006) (noting that a screen capture from the Internet Archive could be printed out and authenticated with an affidavit from a “representative of Internet Archive with personal knowledge of its contents, verifying that the printouts Plaintiff seeks to admit are true and accurate copies of Internet Archive’s records”).

There is also a significant secondary literature describing authentication procedures.  See WAYBACK MACHINE MEMO: Report of the Discovery Practices and Procedures Subcommittee of the Enforcement Committee (Nov. 2009) (collecting cases and urging authentication by judicial notice or stipulation); Wayback Machine Frequently Asked Questions (describing model affidavit for authentication, and alternative procedures in lieu of affidavit).

See also Kenneth N. Rashbaum, Matthew F. Knouff, and Dominique Murray, “Admissibility of Non-U.S. Electronic Evidence,” 18 Richmond J. L. & Tech. 9 (2012);  Rebecca Levy-Sachs & Jason Curtin, “Clearing Hurdles to Admission,” For The Defense 24 (Jan. 2011); James Gibson & Ketan Bhirud, “Admitting Web Pages Into Evidence,” Nevada Lawyer 15 (Oct. 2010); Deborah R. Eltgroth, “Best Evidence and the Wayback Machine: Toward a Workable Authentication Standard for Archived Internet Evidence,” 78 Fordham L. Rev. 181 (2009); Beryl A. Howell, “Proving Web History: How to Use the Internet Archive,” J. Internet Law 3 (Feb. 2006); Gregory P. Joseph, “Internet Archive (Wayback Machine) Printouts Received in Evidence on Preliminary Injunction Motion Evidently without Further Authentication — Courts Warming to Reliability“; Federal Evidence Review, “Authenticating Internet Screenshot Evidence Under FRE 901” (Dec. 19, 2011) (describing Bansal case and its review of authentication methods for the Wayback Machine archive of website pages).

 

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