Though it may seem contradictory, information on the web is both fleeting and permanent, unchangeable yet frequently and easily altered. The internet is filled with countless dormant websites and web pages that have not welcomed any traffic or modifications for years. Active pages may change from day to day with text and images tweaked, added, removed, or revised due to changing marketing priorities and search engine optimization – or for more nefarious reasons. However, the historical yet no longer active online content lives on.
The Internet Archive and its powerful search tool, the Wayback Machine, is a combination of library and time portal, allowing individuals to find and view pages and sites as they existed on a specific date in the past. This content can be invaluable for researchers, historians, and archivists. But it can also be the source of critical and outcome-determinative evidence in litigation. A now-scrubbed or defunct page may contain damning admissions or exculpatory information. Its subsequent alteration or deletion may support inferences of spoliation or obstruction.
As valuable as this content can be in a lawsuit, it is only worthwhile if properly authenticated and deemed admissible as evidence. Unfortunately, attorneys or litigants who attempt to introduce content they obtained through the Wayback Machine without taking further steps to authenticate that material often find themselves on the losing side of challenges to the admissibility of such evidence.
The reality is that the Wayback Machine, for all its power and scope, cannot serve by itself as a reliable source of admissible evidence in litigation. Courts routinely demand more from litigants when they attempt to introduce social media content, websites, videos, images, and documents into the record. That is why attorneys should use a reliable, credible, and technically sound source to collect and capture online content for use in court.
What Is the Wayback Machine?
The Internet Archive is a non-profit entity that began to inventory all content on the internet in 1996 using a tool it developed called the Wayback Machine. The tool preserves digital content and artifacts by indexing web page data using an automated script or program. As of September 2023, the Wayback Machine had archived an astonishing 840 billion web pages. It uses the same "web crawling" method that search engines use to provide results and then uses crawled data to create a three-dimensional index for browsing web content over recorded periods.
The Wayback Machine is incredibly simple to use. Enter a website's or page's URL, and you can view a past iteration of the material by choosing a date from a timeline of yearly calendars.
Admissibility and Authentication Issues With the Wayback Machine
As with physical documents and electronic records, content derived from the Wayback Machine must be properly authenticated to ensure it is what it purports to reflect or be. The easiest way to do so is for opposing parties to stipulate the correctness and accuracy of a website or webpage captured by the Wayback Machine, thus eliminating the need for further authentication or a ruling by the court as to its admissibility. This is not an unreasonable agreement for litigants, given that the Internet Archive is a neutral, unbiased, and well-established source of information.
Another way to authenticate and admit Wayback Machine content is through judicial notice. Indeed, some courts have found that printouts of webpages from the archive are sufficiently reliable to be admissible without testimony as to their authenticity and accuracy. For example, in Pond Guy, Inc. v. Aquascape Designs, Inc., a federal district court in Michigan held that, "As a resource the accuracy of which cannot reasonably be questioned, the Internet Archive has been found to be an acceptable source for the taking of judicial notice."
But plenty of other courts have rejected the idea of judicial notice for Wayback Machine results. For example, in Weinhoffer v. Davie Shoring, the U.S. Court of Appeals for the Fifth Circuit addressed this issue for the first time and held that the Wayback Machine’s archived webpages are not a proper subject of judicial notice “because a private internet archive falls short of being a source whose accuracy cannot reasonably be questioned as required by [Federal Rule of Evidence] Rule 201.”
The Seventh Circuit has also rejected judicial notice of Wayback Machine captures, instead requiring a "knowledgeable" Internet Archive employee to authenticate the material before a court considers them. Specifically, in Specht v. Google Inc., the court wrote that "[T]he district court reasonably required . . . authentication by someone with personal knowledge of reliability of the archive service from which the screenshots were retrieved."
Who Can Authenticate Wayback Machine Content In The Absence of Judicial Notice?
As was the case in Sprecht v. Google, Inc., those courts that do not take judicial notice of Wayback Machine material will require an affidavit or the testimony of a person with personal knowledge who can attest to how a third-party crawler like the Wayback Machine operates and how it creates an unaltered copy of a website or page as it appears on a given day.
The lawyer who used the Wayback Machine to obtain the material certainly cannot provide such information because they cannot act as a witness in the case. Instead, the attorney would have to find a testifying witness to personally repeat the steps of accessing the Wayback Machine, conducting the search, and printing the relevant content. Furthermore, an attorney who searches for and captures a web page puts themselves in the chain of custody for that page, which could raise questions about tampering or alteration.
And while the Wayback Machine is in the business of archiving, they are not in the business of authenticating. In fact, as a non-profit with limited resources and a fee-free structure, they are not really in business at all. Compelling Internet Archive personnel to help a litigant satisfy an affidavit or testimonial requirement is a difficult, burdensome, and often impracticable means of authentication.
That is why attorneys need a sound, consistent, practical, and judicially acceptable way of capturing and demonstrating the authenticity of archived web pages they seek to use as evidence in litigation.
How Page Vault Helps Attorneys Overcome Authenticity and Admissibility Challenges
Page Vault is the leading provider of legal online evidence collection and preservation solutions. Over the past decade, our solutions have become the standard for legal teams to capture web content for use as admissible court evidence. Page Vault offers both do-it-yourself software, Page Vault Browser™, and Page Vault On Demand™ services.
Attorneys who use our services keep themselves out of the chain of custody, neutralizing any questions about tampering. We can provide an affidavit for any capture made in our system, whether in our web capture software or On Demand service. Our personnel can also serve as expert witnesses to explain Page Vault's technology and storage processes, helping to further support the authentication of content captures used in litigation.
To learn more about our capabilities and how we can serve as an indispensable litigation resource, contact Page Vault today.