Web Time Travel with the Wayback Machine
This article appears in the November 18, 2011 issue of The Lawyers' Weekly.
The next time you receive the dreaded ‘404 – Page Not Found’ message, don’t give up your Internet search in disgust.
Just because you can’t find that web page doesn’t mean it is truly gone. Using the right tools, online evidence that may have been lost or destroyed, deliberately or otherwise, can still be found and used.
And you don’t have to hire the 14-year old hacker who lives next door for the solution.
Enter the Wayback Machine.
The Wayback Machine (www.waybackmachine.org) is a service operated by the Internet Archive, a non-profit based in San Francisco. Named after a device used for time travel in the ‘Rocky and Bullwinkle’ cartoon series, this service provides a reliable means of checking digital footprints by accessing past versions of web pages dating back to 1996.
Not every web page is archived but with over 150 billion pages available, the service has eclipsed the Library of Congress as a repository of digital information.
To use the Wayback Machine, visitors simply type in a URL and a date in a search box, and are immediately taken to the selected web page. No special software or passwords are needed. Remarkably, it is free.
Litigators can use this online evidence in cases of employees disparaging their employers online, cybersquatting, copyright and trademark infringement, online defamation, unlawful competition, consumer fraud and criminal prosecutions.
A notorious criminal trial in Toronto in 2005 saw the application of such evidence, to the annoyance of the trial judge and the embarrassment of counsel. The Crown was prosecuting three teenagers for a particularly gruesome murder of a 12-year old boy. After a 3-month trial, the case was remitted to the jury. While they were still deliberating, an enterprising newspaper reporter using the Wayback Machine discovered online postings that had been made but deleted by a key prosecution witness. The postings suggested she had perjured herself. When the judge read about this in the next day’s newspaper, the prospect of perjury compelled him to declare a mistrial.
Counsel then had to explain how they had failed to uncover such critical evidence despite months of trial preparation, particularly when a newspaper reporter had found it so easily. The judge was not impressed by their pleas that they were mere lawyers unfamiliar with internet archives.
In R. v. Balendine 2009 BCSC 1938, the accused was charged with possession of child pornography. The court accepted expert testimony that it is possible to identify internet activity on a hard drive by looking at browser bookmarks and their history by using the Wayback Machine. A conviction followed.
On the civil side, the court in ITV Technologies Inc. v. WIC Television Ltd. 2003 FC 1056, aff’d 2005 FCA 96 ruled that evidence obtained from the Wayback Machine indicating the state of websites in the past is generally reliable. Justice Tremblay-Lamer noted that the Court could rely on such evidence for an accurate representation of the web sites at the relevant time period.
In Cogan v. Emusic.com Inc., 2011 TMOB 34 and St. Joseph Media Inc. v. Starwood Hotels & Resorts Worldwide, Inc., 2010 TMOB 188, Wayback Machine evidence was allowed in trademark proceedings. Re U-Haul International Inc. (2010) 82 C.P.R. (4th) 279 allowed it in patent proceedings.
Once the hurdle of reliability is overcome, counsel’s next challenge is to authenticate the particular web pages being adduced.
Opposing counsel may agree to their admissibility and allow printouts to be included in an agreed exhibit book. If that is not possible, satisfying the trial judge will likely require evidence from someone explaining the nature of the Wayback Machine, its use, and certifying the results.
If an affidavit from the client is deemed insufficient, the Internet Archive will, for a nominal fee, provide a sworn statement (www.archi ve.org/legal/affidavit.php) authenticating pages or other information from the Wayback Machine. Requests and payment can be submitted online or by regular mail.
The Internet Archive attempts to respond to all such requests within a matter of days. However, since they are in California, allow extra time to obtain a notarized affidavit for use in Canadian legal proceedings.
Because judges may not be familiar with the Wayback Machine, it is wise to raise this issue at the pre-trial conference stage to ensure the proper evidentiary base.
Ask your witnesses if they have ever posted to the internet anything that could be compromising. Do a Wayback search in every case and assume that your opponent will do the same. Even if your witnesses want to believe those embarrassing comments they posted long ago are part of the past, archives such as the Wayback Machine remind us that the Internet never forgets.