Authenticity of archived websites: the need to lower the evidentiary hurdle is imminent.

• Author: Gazaryan, Karen

INTRODUCTION. I. ARCHIVED WEBSITES AS A NEW TYPE OF EVIDENCE: GENERAL INFORMATION. A. WHAT IS AN ARCHIVED WEBPAGE? B. HOW ARCHIVED WEBSITES CAN BE USED IN TODAY'S LITIGATION II. THE REQUIREMENTS FOR ADMISSIBILITY OF ARCHIVED WEBSITES AS COMPARED TO OTHER TYPES OF ELECTRONIC EVIDENCE A. AUTHENTICITY 1. TESTIMONY OF A WITNESS WITH KNOWLEGE. 2. EVIDENCE DESCRIBING PROCESS OR SYSTEM 3. CASES IN WHICH ARCHIVED WEBSITES WERE NOT ADMITTED. B. HEARSAY 1. ARE WEBSITES 'STATEMENTS' FOR THE HEARSAY PURPOSES? 2. NON-HEARSAY USE OF ARCHIVED WEBSITES 3. DO ANY OF THE EXCEPTIONS TO THE HEARSAY RULE APPLY? C. BEST EVIDENCE RULE III. THE RULES SHOULD ADOPT TO TREAT ARCHIVED WEBSITES AS SELF-AUTHENTICATING EVIDENCE A. CHALLENGING THE SETTLED PROCEDURE AND PROPOSED ALTERNATIVES FOR AUTHENTICITY OF CACHED WEB PAGES. B. BALANCING THE BENEFITS AND RISKS OF ALLOWING SELF-AUTHENTICATING OF ARCHIVED WEBSITES. CONCLUSION INTRODUCTION

As World Wide Web usage is becoming increasingly widespread, its implications for the legal field are ever growing. The Internet contains a vast amount of information that can potentially be used in litigation. Unfortunately, that information is not permanently available since old information is constantly substituted with new content. Archiving the information could preserve it for future use. However, the question of admissibility of these archived webpages raises certain concerns.

Although discovery rules have been reshaped to conform to the current needs of pre-trial discovery, (1) evidence rules have not changed to adequately face the issue of the admissibility of webpage printouts or archived webpage printouts. (2) Courts have applied different rules and standards when dealing with this issue, which creates uncertainties to litigants. (3)

It is widely agreed in the legal community that there are three hurdles in admitting an archived webpage into evidence. (4) These barriers are: (1) authenticity, (2) hearsay, and (3) the Best Evidence Rule. (5) The hardest requirement to overcome is authenticity, and courts disagree on the interpretation of this requirement. This Note explores the issue of authenticity of archived webpage printouts and proposes changes to the Federal Rules of Evidence in order to adapt to the growth of the usage of electronically archived evidence in modern litigation.

Part I defines and provides general background information on electronically archived evidence. It emphasizes the importance of such evidence in all stages of litigation. Part II outlines case law trends regarding the application of archived webpage evidentiary requirements. It also describes the differences and similarities of those requirements as compared to the courts' analyses of electronic evidence in general. In Part III, the established procedure and some of its alternatives are challenged and criticized. Additionally, this Note proposes certain amendments to the Federal Rules of Evidence in order to adequately adapt to the rising issue of the admissibility of electronically archived evidence, including the treatment of archived webpage printouts as self-authenticating evidence.

1. ARCHIVED WEBSITES AS A NEW TYPE OF EVIDENCE: GENERAL INFORMATION

   1. WHAT IS AN ARCHIVED WEBPAGE?

      The Internet is the largest source of information in the world. It has become a vital instrument in the modern era because it allows anyone to get information from anywhere in the world. Websites are constantly updated with new information, which can create a major drawback: while new information is filling the web space, the old information is gone forever because web-servers have limits on the amount of data they may contain.

      Because of the profound benefits of information on webpages, the need to preserve them should not be underestimated. (6) The method of gathering websites by search engines is called "crawling." (7) The most well-known "crawler" engine that constantly updates its search index lists with current images of websites is Google. (8) There are several Internet engines, unlike Google, that save snapshots of websites on their server for permanent storage. (9) Their purpose is not to provide a current view of the websites, but to preserve their historical appearances. This process is called archiving or caching. (10) The largest server of archived websites is called the Internet Archive. (11) Because much of this Note revolves around the procedure established by courts to authenticate archived webpages from that resource, it is essential to describe the mechanics of the Archive's crawler.

      The Archive employs the so-called "Wayback" machine to crawl and save millions of webpages each day. (12) The machine has a priority of webpages it archives--well-linked sites are found with greater frequency. (13) Once a webpage is retrieved, it is saved permanently on the server and is available to the general public, free of charge on the Internet Archive's website. (14) As of January 2013, the Archive consisted of about 240 billion archived webpages. (15)

      The webpages are stored in the same format as current ones, in hypertext markup language (HTML) format. (16) The snapshots of archived webpages can be opened in any web browser that supports HTML format. The Archive assigns each retrieved webpage with a unique uniform resource locator (URL), which includes the URL of the original web page, date, and time of the archiving of that page. (17) A printout of the archived website shows that URL.

   2. HOW ARCHIVED WEBSITES CAN BE USED IN MODERN LITIGATION.

      With the proliferation of the Internet, the use of electronic media has become immensely significant. Websites are important business promotion tools. Customers have the ability to find pertinent information about a business through a simple mouse click. Customers often rely on that information in their activities, sometimes to their detriment. In such situations the contents of websites may be the only available evidence to the potential plaintiffs. However, because litigation often lasts for a substantial amount of time, the information on a website could be deleted or updated by its owner by the time of trial. Defendants may also intentionally delete inculpating evidence from their websites. (18) Therefore, archived versions of webpages become extremely important for plaintiffs.

      Conversely, Internet users can falsely accuse companies of detrimental reliance. In order to vindicate themselves, companies may seek to introduce the printouts of their webpage to show that it contained no such information as the plaintiff alleged. (19) They can also demonstrate that the plaintiff was put on notice and assumed all the alleged risks. Again, this could only be accomplished by introducing printouts of the current webpage or their archived version, if the webpage no longer exists, into evidence. For example, in Hook v. Intelius, Inc., an Internet user claimed that he was charged for service without his knowledge and authorization, and sued the search website company. (20) The defendant presented screenshots of the webpages that the user saw on the date he was charged for the service, showing that the webpages contained charge notices. (21)

      Moreover, archived webpages can be used as proof that a party acted in accordance with its obligations. For example, to prove that a customer paid the proper fees, the party may introduce the fee chart from their webpages. (22)

      Archived webpages are also frequently used in intellectual property rights cases. In such cases, the contents that appeared on defendant's webpages can be challenged as infringing upon a plaintiffs intellectual property rights. (23) On the other hand, the contents of a webpage can be used to defend against the claims of such infringements. For example, in Telewizja Polska USA, Inc. v. EchoStar Satellite Corp., the plaintiff alleged that the defendant was using the plaintiffs trademark name in violation of its intellectual property rights. (24) In response, the defendant introduced the printout of the defendant's archived webpage dated before the plaintiff received the trademark of its brand. (25)

      The evidence that can be produced by archived webpages is helpful in all litigation stages: complaint, discovery, and trial. (26) It is worth reiterating that sometimes the person who could be charged will try to destroy all incriminating evidence, including electronic evidence. Lawyers would need some supporting evidence before they commence a suit. If incriminating information stored in an electronic archive library is easily available, they can proceed with the litigation. Likewise, when the lawsuit is under way, the cached webpages often help to level the field between the litigating parties by providing equal access to the electronically archived information. (27) The abundance of evidence that can be provided by cached webpages could discourage litigation and encourage settlement negotiations. (28) If a wrongdoer knows that he has no control over the evidence that was archived by third parties, he may be more willing to settle and avoid litigation costs. Archived webpage printouts could also be valuable in rebuttal arguments at trial. If, for example, a defendant denies that her website contained misleading contents, the plaintiff may present a printout of the relevant webpages to the jury as evidence. (29)

2. THE REQUIREMENTS FOR ADMISSIBILITY OF ARCHIVED WEBSITES AS COMPARED TO OTHER TYPES OF ELECTRONIC EVIDENCE

   The Federal Rules of Evidence present hurdles in presenting archived webpages into evidence. This part will discuss those hurdles, and specifically will consider the issue of the similarities and differences of the courts' treatment of the two classes of evidence. It is important to understand what standards judges use for admitting or denying archived webpages. Section A tackles the issue of authenticity, Section B, the issue of hearsay, and Section C, the issue of application of the best evidence rule.

   1. AUTHENTICITY

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