With apologies to Harry Kalas.
Bexis had a couple of encounters with the “Wayback Machine” (a/k/a/ the “Internet Archive”) recently. If you don’t know what that is, it’s digital library of Internet ephemera – web pages and the like − that have since been taken down, revised, or otherwise have become unavailable in their original locations (it contains other material, as well, like old books). Researching Bexis’ recent off-label use law review article entailed searches for long-since vanished FDA material. Even more recently, Bexis advised someone looking for a 40-year-old “Dear Doctor” letter to try the Wayback Machine, since the drug in question had undoubtedly gone generic, and the manufacturer probably didn’t maintain a website for that drug.
That got us (well, Bexis) thinking. Are documents and other information obtained from the Wayback Machine admissible in court? If so, how have they been used?
The answer to the first question appears to be yes, although it can take some doing. The answer to the second question is “lots of different ways.” We discuss some of them in this post.
Starting with admissibility, in a criminal case, Wayback Machine material from the defendant’s now-defunct website was held admissible where the Wayback Machine screenshots were authenticated by:
a witness [who] testif[ied] about how the Wayback Machine website works and how reliable its contents are. The witness also compared the screenshots with previously authenticated and admitted images from [defendant’s] website and concluded, based upon her personal knowledge, that the screenshots were authentic.
United States v. Bansal, 663 F.3d 634, 668 (3d Cir. 2011).
In another criminal case, the prosecution actually “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.” United States v. Gasperini, 894 F.3d 482, 490 (2d Cir. 2018). As in Bansal, that witness also “also compared the screenshots sought to be admitted with true and accurate copies of the same websites maintained in the Internet Archive, and testified that the screenshots were authentic and accurate.” Id. Agreeing with Bansal, Gasperini likewise found the evidence properly admitted.
We agree with the holding of the court in Bansal, and hold that the testimony presented in this case by the government was sufficient proof that a reasonable juror could find in favor of authenticity or identification. [Defendant] was free to cross-examine the witness about the nature and reliability of the Archive’s procedures for capturing and cataloging the contents of the internet at particular times, and the jury was thus enabled to make its own decision about the weight, if any, to be given to the records.
Id. (citation and quotation marks omitted). See United States v. Kieffer, 681 F.3d 1143, 1154 n.3 (10th Cir. 2012) (holding Wayback Machine downloads properly authenticated); Mojave Desert Holdings, LLC v. Crocs, Inc., 844 F. Appx. 343, 346 (Fed. Cir. 2021) (relying on patent examiner’s analysis of “a collection of web pages” downloaded from the Wayback Machine).
Indeed, courts “routinely take judicial notice . . . of the Internet Archive’s Wayback Machine as reliable evidence of how a particular website appeared on a particular date.” Munn v. Hotchkiss School, 165 A.3d 1167, 1203 (Conn. 2017) (citing Perera v. Attorney General, 536 F. Appx. 240, 242 n.3 (3d Cir. 2013); Distributorsoutlet.com, LLC v. Glasstree, Inc., 2016 WL 3248310, at *2 (E.D.N.Y. June 10, 2016); Erickson v. Nebraska Machinery Co., 2015 WL 4089849, at *1 n.1 (N.D. Cal. July 6, 2015); Pond Guy, Inc. v. Aquascape Designs, Inc., 2014 WL 2863871, *4 (E.D. Mich. June 24, 2014)).
For other appellate cases judicially noticing Wayback Machine material, or treating it as authoritative without mentioning judicial notice, see Monster Energy Co. v. City Beverages, LLC, 940 F.3d 1130, 1140 (9th Cir. 2019) (citing Wayback Machine material – apparently researched independently by the court – for when certain material was available on a particular website); Arteaga v. United States, 711 F.3d 828, 834 (7th Cir. 2013) (treating Wayback Machine material from government website as authoritative); Khan v. Bank of New York Mellon, 525 F. Appx. 778, 780 (10th Cir. 2013) (taking judicial notice of governmental material from Wayback Machine); Motor Vehicle Administration v. Geppert, 233 A.3d 102, 111 n.15 (Md. 2020) (relying on Wayback Machine material that the appellant left repealed regulations on its website for years); State v. Ramseur, 843 S.E.2d 106, 116 nn.7-8 (N.C. 2020) (treating Wayback Machine material as authoritative legislative history); Snow v. Snow, 68 N.E.3d 1138, 1145 (Mass. 2017) (same); Ennabe v. Manosa, 319 P.3d 201, 214 n.15 (Cal. 2014) (treating as authoritative Wayback Machine copy of administrative materials that were “never reduced to hardcopy and existed as an online resource”); Irwin v. Commonwealth, 992 N.E.2d 275, 285 (Mass. 2013) (treating Wayback Machine material as authoritative legislative history); State v. Hutchings, 285 P.3d 1183, 1192 (Utah 2012) (using Wayback Machine material to establish date that a new jury instruction became available); Burts v. Burts,...
