The Second Circuit Court of Appeals recently decided a case allowing the government to produce evidence from the Internet Archive (often referred to as the “Wayback Machine”). The July 2018 ruling supports a similar holding from the Third Circuit in 2011.
In the Second Circuit case the defendant, Fabio Gasperini, who was convicted of misdemeanor computer intrusion, argued that the district court abused its discretion in allowing screenshots from the Internet Archive to be admitted. The screenshots displayed websites registered to Gasperini for use in a click fraud scheme. Gasperini relied on a 2009 Second Circuit non-precedential summary order affirming a district court decision to exclude screenshots for lack of authentication.
The Second Circuit distinguished this recent case from the summary order, explaining that the government presented testimony from the office manager at the Internet Archive who explained how the Archive captures and preserves evidence of the contents of the Internet at a given time. The witness also compared the screenshots with true and accurate copies of the same website maintained at the Archive and testified that the screenshots were authentic, accurate copies of the Archive’s records.
The Second Circuit cited the 2011 Third Circuit opinion with a similar holding, United States v. Bansal. “In that case, the court found that where a witness testified, from personal knowledge, ‘about how the Wayback Machine website works and how reliable its contents are,’ there was sufficient evidence to authenticate screenshots taken from that website.” The Second Circuit also noted that Gasperini was free to cross-examine the witness about the nature and reliability of the Archive’s procedures for capturing and cataloguing 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.
The Register notes that “taken together, this latest decision gives a strong foundation for the Wayback Machine to be seen as a legit source of future evidence – something that is likely to become ever more important as the internet continues to pervade all aspects of our lives.”
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