Most people who’ve been through litigation know that once it has started, you can’t just grab a shredder and get rid of your bad documents. Why? Legally speaking, the parties have a duty to preserve their documents. When dealing with paper, shredding has a permanent effect. Electronic documents are far more pervasive than their physical counterparts and are more difficult to erase.
A common saying has developed: once something is on the internet, it is there forever. Like most sayings, this isn’t 100% accurate. What is accurate is that once something is on the internet, it can be extremely difficult and in some cases nearly impossible to remove.
What happens when an opposing party has changed their website’s content frequently over the years? What if key evidence could be information formerly found on that website? The first step would be to ask the opposing party whether they still have that information. But what if they deleted that information long ago?
Step in the Wayback Machine
This website is not an actual time machine, and so you do not need to worry about Schwarzenegger coming through it. Rather, it is more akin to a museum containing an archive of websites as they appeared in different years. Since 1996, this website, which is operated by the Internet Archive, has been searching all accessible webpages (“crawling” in internet lingo) and saving these webpages. It then repeats this task on different days, weeks, and months. The Wayback Machine presents all the saved webpages in a timeline. For example, here is how the Canadian Broadcasting Corporation’s website looked on March 2, 2000.
Why is this important? In litigation, crafty people have sought to use the Wayback Machine to obtain a snapshot of how a website appeared at a specific point in time. Then, the person would ask the court to accept and recognize the information on the snapshot without the need to prove that the information was actually there at that time through witnesses. This process is called “judicial notice”.
For example, imagine Miles Dyson decided to leave Skynet to start a new Artificial Intelligence company. He creates a website and uses an enormous pyramid as his logo. Further imagine that Skynet sends a demand letter to Miles to stop using that logo, and Miles complies. But by then, it was too late, and Skynet suffered a loss of business. Skynet decides to sue Miles for using their logo without consent. Instead of having to find a paper trail and muster witnesses who saw Miles’ website, Skynet could simply ask the court to use the Wayback Machine to see that Miles’ website used the logo.
Using the Wayback Machine in court is almost as old as the modern internet
Back in the early two thousands, a group of lawyers used the Wayback Machine to see how a website looked at a certain point in time to assess the opposing party’s argument. The issue was a trademark dispute: the plaintiff alleged that the defendant violated the plaintiff’s trademark rights. The defendant’s lawyers, using the Wayback Machine, were able to determine that the plaintiff’s arguments were flawed. Ultimately, the defendant was successful. See Flynn v. Health Advocate, Inc., No. 03-3764, 2005 U.S. Dist. LEXIS 1704 (E.D. Pa. Feb. 8, 2005).
After the case was decided, the plaintiff sued the defendant’s lawyers for “hacking” the plaintiff’s website and (1) violating the plaintiff’s copyright, (2) violating the Computer Fraud and Abuse Act, and (3) committing the torts of Conversion and Trespass to Chattels. The court rejected all the plaintiff’s claims. See Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey, 497 F. Supp. 2d 627, 630 (E.D. Pen. 2007).
As these two cases demonstrate, the Wayback Machine can be used as a tool for assessing the strengths of another’s arguments. However, lawyers could also use printouts of archived websites from the Wayback Machine as evidence in court. So far, courts have been divided on how to admit these printouts. This article will focus on the divide within US Federal courts and on Canadian case law.
Most popular method: Requiring an affidavit of authenticity
Essentially, some courts require the affidavit from a representative of the Internet Archive who can verify that the printout is a true and accurate copy of the Wayback Machine’s records. This method appears to be the most popular. Lawyers who are in need of this affidavit may visit the FAQ section of the Internet Archive for more information.
Recently, the Southern District Court of Florida declined to take judicial notice of printouts from the Wayback Machine. Scanz Techs. v. Jewmon Enters., No. 20-22957, 2021 U.S. Dist. LEXIS 2651, *9 n.2 (S.D. Fla. Jan. 6, 2021). Although the court did not provide much reasoning, the court did note that it was following the precedent of a previous case: Setai Hotel Acquisition, LLC v. Miami Beach Luxury Rentals, Inc., No. 16-21296, 2017 U.S. Dist. LEXIS 129642 (S.D. Fla. Aug. 15, 2017). Interestingly enough, Scanz Techs and Setai Hotel were decided by the same judge. The court in Setai observed that circuit courts “generally have required that the Wayback Machine print-outs be authenticated by a representative with personal knowledge before they can be judicially noticed or admitted.” Setai, 2017 U.S. Dist. LEXIS 129642, at *12. Thus, the court rejected the printouts because the plaintiff did not produce the requisite affidavit.
Likewise, the District Court of Kansas and the Northern District Court of Illinois both have cases that required authentication. Marten Transp., Ltd. v. Plattform Advertising, Inc., 184 F. Supp. 3d 1006, 1010 (D. Kan. 2016), took judicial notice of a printout of the defendant’s website after the plaintiff introduced “deposition testimony from a representative of the Internet Archive authenticating certain screenshots.” Additionally, Telewizja Polska USA, Inc. v. Echostar Satellite Corp., No. 02 C 3293, 2004 U.S. Dist. LEXIS 20845, at *13-14 (N.D. Ill. Oct. 15, 2004), allowed the defendant to use printouts of the plaintiff’s website from the Wayback Machine after the defendant introduced the affidavit.
Please be aware that a minority of states may require more than this affidavit from the Internet Archive—some may require testimony or a sworn statement from the actual host of the website attesting to the accuracy of the printout. Novak v. Tucows, Inc., No. 06-CV-1909, 2007 U.S. Dist. LEXIS 21269, at *7 (E.D.N.Y. Mar. 26, 2007). However, Novak was later clarified by the 2nd Circuit as standing for the proposition that the proponent of the printout must explain the printout’s authenticity (which was not done in Novak). United States v. Gasperini, 894 F.3d 482, 490 (2nd Cir. 2018). For example, in Gasperini, the government “presented testimony from the office manager of the Internet Archive, who explained how the Archive captures and preserves evidence of the contents of the internet at a given time.” Gasperini, 894 F.3d at 490.
Alternative method #1: Taking judicial notice of the printouts
In this method, a party would only need to show the court the printout. No affidavit of authenticity would be required. The court would simply look at the printout, satisfy themselves that it is from the Wayback Machine, and then admit the printout.
The Ninth Circuit seems to be a fan of this method. For example, the Northern District Court of California in Parziale v. HP, Inc., No. 5:19-cv-05363-EJD, 2020 U.S. Dist. LEXIS 179738, at *5 (N.D. Cal. Sep. 29, 2020), noted that “district courts in this circuit have routinely taken judicial notice of content from the Internet Archive’s Wayback Machine pursuant to this rule.” The court reasoned that “the contents of web pages available through the Wayback Machine [are] facts that can be accurately and readily determined from sources whose accuracy cannot reasonable be questioned.” Parziale, 2020 U.S. Dist. LEXIS 179738, at *6. Likewise, the court In re Facebook, Inc., 405 F. Supp. 3d 809, 829 (N.D. Cal. 2019), took judicial notice of Facebook’s 2013 Data Policy obtained through the Wayback Machine.
These Ninth Circuit cases are not confined to the N.D. of Cal. The District Court of Oregon has also placed its foot on the scale by noting that “District courts have routinely taken judicial notice of content from The Internet Archive.” Under a Foot Plant, Co. v. Exterior Design, Inc., No. 6:14-cv-01371-AA, 2015 U.S. Dist. LEXIS 37596, at *4 (D. Or. Mar. 24, 2015).
Lastly, Canadian cases seem to have also adopted this method, which we will discuss further below.
However, lawyers should still be wary because there is one earlier N.D. Cal. case where the court declined to accept the printouts because the defendant failed to submit an affidavit of authenticity. See Open Text S.A. v. Box, Inc., No. 13-cv-04910, 2015 U.S. Dist. LEXIS 11312, at *7 (N.D. Cal. January 30, 2015). The lesson to take away is to do your due diligence.
Alternative method #2: Refuse judicial notice because of the disclaimer
The Wayback Machine has a disclaimer that it “makes no warranty or representation regarding the accuracy, currency, completeness . . . of the content in the Collections.” Some courts have used this disclaimer to hold that judicial notice is inappropriate. For example, check out Nassar v. Nassar, No. 3:14-CV-1501-J-34MCR, 2017 U.S. Dist. LEXIS 456, at *10 (M.D. Fla. Jan. 3, 2017).
Likewise, a recent case from the Northern District of Texas refused to take judicial notice of documents on the Wayback Machine, namely because the Internet Archive “disclaims any guarantee that the results it produces are accurate.” Ward v. Am. Airlines, Inc., No. 4:20-cv-00371-O, 2020 U.S. Dist. LEXIS 205771, at *2 (N.D. Tex. Oct. 16, 2020).
What about Canadian courts?
Compared to down south, the jurisprudence of the Great North isn’t as rich but it also isn’t as divided. In Canada, the case law on the Wayback Machine currently seems to be confined to a few intellectual property cases. Most importantly, the Canadian Federal Courts seems to have agreed that the Wayback Machine is reliable and accurate. For example, in ITV Technologies Inc. v. WIC Television Ltd., 2003 FC 1056, the court noted that “[the] web site is reliable, and that the Court could rely on its digital library for an accurate representation of the web sites at the relevant time period” (para 14). This case was subsequently cited favourably in Candrug Health Solutions Inc. v. Thorkelson, 2007 FC 411 at para 20. However, both cases ascribed little to no weight to the printouts because there was no evidence on whether Canadian consumers had visited the websites. ITV Technologies at paras 21-22; Candrug at para 21.
Remember: people can ask the Wayback Machine to remove their indexed content
This is more common than people may think. However, when a litigation party does this, they should consider the optics. In the US, there have been a few cases where a party has asked the court to order the Internet Archive (the operator of the Wayback Machine) to provide information on whether the opposing party asked the Internet Archive to remove the indexed content. For example, see In re Levi Strauss & Co., No.18-mc-80123-JSC, 2018 U.S. Dist. LEXIS 138354, at *6-7 (N.D. Cal. Aug. 15, 2018), where the judge ordered the Internet Archive to provide that information.
What is the lesson to be learned?
Regardless of the unique jurisprudential requirements of each jurisdiction, many lawyers have successfully used the Wayback Machine in some capacity to further their case. However, if you plan on using printouts from the Wayback Machine, ensure you know the prevailing case law in your jurisdiction and prepare for the possibility of submitting an affidavit.
There are many types of causes of action where the evidence relied upon is from a webpage at a certain point in time that has been deleted or changed such as misrepresentation, consumer protection, breach of warranty, etc…
Ultimately, the Wayback Machine is an invaluable tool that can be used in litigation and best of all, it is free-to-use. However, there are limits to its use and it should not be relied on as the sole method for retrieving information.
Should you have any questions or comments, you can reach out to the authors Dawn Sullivan, Ontario lawyer with a focus on e-discovery and class actions law, at [email protected] and Savvas Daginis, a Canadian and American Business Lawyer focusing on business, tech, and privacy, at [email protected].