New York Law Journal "Archiving the Internet: The ‘Wayback Machine’ in the Courts" by Steve Kramarsky

July 25, 2018

Sometimes, the intersection of law and technology creates interesting legal or policy issues for lawyers and courts to explore; other times, it just creates headaches. Among the latter are the problems of proof that arise when legally significant events occur entirely on the Internet and not in the physical world. It is well established that web pages, blog entries, social media postings and other online activity can be evidence of liability, or even the sole basis for a claim—for example a claim of defamation or infringement, or breach of an online contract. But in the context of freely-editable, user-generated electronic content, it can be extremely difficult to establish, with legal certainty, what activity actually occurred and when.

 

Consider the following situation: a client comes to you to evaluate whether he has a claim for copyright infringement based on the use of certain artistic elements on website. But upon checking, you find that the site has been reworked and your client’s art is gone. In discovery, records of the old site will be available, but at that early stage, how are you to evaluate the claim? Or this: you represent a defendant accused of making defamatory statements about plaintiff on her blog. Your client has removed the posting, but plaintiff seeks to introduce a screenshot of the website into evidence. Your client insists the screenshot has been doctored and does not accurately reflect the posting. But how can you establish the truth for the court?

 

Scenarios like the above have become increasingly common with the rise of the Internet and the ease of access to content tools. We conduct more and more of our business, personal and legal affairs in electronic form, and increasingly those electronic interactions leave no tangible paper trail at all. For many substantial legal matters, the crucial evidence may be on a website or in an email. What representations did the company make on its website about the efficacy of its product? Was a user properly prompted to agree to certain terms and conditions (commonly referred to as a “clickwrap agreement”) before making a purchase? Did an international corporation tout its New York operations on its website at the time of a transaction? What public comments or statements were made about a person or event or transaction at a given time?

 

A case that turns on the who, what, and where of a representation can easily be derailed if that representation was made on the Internet and is subsequently removed. This doesn’t assume malfeasance—websites change every day for all kids of perfectly valid reasons. But the effect is the same: if the website has been updated, the evidence may become unavailable for trial. Of course, it is always good practice to retain hard copy (such as a printed screenshot) of important website evidence, but even that may not be enough. Such screenshots present authenticity issues and, if they are created by counsel, there is the risk that the lawyer will have to become a witness, describing how and when the screenshot was made. In addition, it can be difficult, months after the fact, to establish the timing of the screenshot and whether it presents an accurate picture of the website at the relevant time.

 

To get a more accurate picture requires a time machine capable of re-creating the web as it was on a given date. Luckily, at least for many web sites, such a machine exists. A recent U.S. Court of Appeals for the Second Circuit decision describes how to use it, and how to properly introduce records from it so that they can be accepted as evidence in court.

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