Marketing Madness

Court Allows Admissions of Wayback Machine Screenshots as Evidence

The Second Circuit Court of Appeals recently affirmed a ruling by the lower court, admitting screenshots from the Internet Archive – Wayback Machine (U.S. v. Gasperini, July 2, 2018).

In 2014, a computer virus began infecting computers with malware, allegedly allowing the hacker to create a “botnet.” An investigation revealed that the defendant was allegedly responsible. He was arrested, indicted and convicted of misdemeanor computer intrusion.

On appeal, the defendant argued, inter alia, that the district court erred by admitting screenshots from the Wayback Machine into evidence because they were not properly authenticated business records pursuant to the Federal Rules of Evidence.

The Second Circuit disagreed and affirmed the district court’s decision.

In support of his argument, the defendant relied on a 2009 case where the Second Circuit ruled only that the district court did not abuse its discretion by excluding screenshots for lack of authentication. Here, however, the government presented testimony from the office manager of the Internet Archive, who explained how the Internet Archive captures and preserves evidence of the contents of the internet at a given time.

The witness 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 copies of the Internet Archive’s records. Thus, the district court found that the screenshots had been sufficiently authenticated.

Interestingly, the Third Circuit considered the admissibility of Internet Archive records on a similar record in United States v. Bansal (3d Cir. 2011).

The court ultimately held that the testimony presented by the government was sufficient proof . . . that a reasonable juror could find in favor of authenticity or identification. It pointed out that the defendant was able to cross-examine the witness about the reliability of the Internet 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.

See the full decision, here.

Richard B. Newman is an advertising and privacy law compliance attorney at Hinch Newman LLP.  Follow him on LinkedIn at FTC lawyer.

ADVERTISING MATERIAL. Informational purposes only. Not legal advice. Always seek the advice of an attorney. Previous case results do not guarantee similar future result. Hinch Newman LLP | 40 Wall St., 35th Floor, New York, NY 10005 | (212) 756-8777.

 

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Richard B. Newman

Richard B. Newman is an Internet Lawyer at Hinch Newman LLP focusing on advertising law, Internet marketing compliance, regulatory defense and digital media matters. His practice involves conducting legal compliance reviews of advertising campaigns across all media channels, regularly representing clients in high-profile investigative proceedings and enforcement actions brought by the Federal Trade Commission and state attorneys general throughout the country, advertising and marketing litigation, advising on email and telemarketing best practice protocol implementation, counseling on eCommerce guidelines and promotional marketing programs, and negotiating and drafting legal agreements.

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