The Way back machine data may be admissible to support a conviction

botnet Way back machine data admitted in Court - Domingo J. Rivera
The Wayback Machine, located at is a web site that enables you to see what a particular Web site looked like at some time in the past, from 1996 to the present.  At the Wayback Machine site, you can search for and link to the past version of many web sites as they were at various "snapshots" in time.   What happens when the prosecution introduces screenshots from the Wayback Machine as evidence?  Somewhat surprisingly, the U.S. Court of Appeals for the Second Circuit has ruled that these screenshots may be admissible.  

On appeal, the Court considered the defendant's challenge to an evidentiary ruling made by the district court permitting the government to introduce screenshots of various websites taken by the Internet Archive.  Gasperini challenged the authentication of screenshots of websites registered to Gasperini for use in the click fraud scheme, which were captured and stored by the Internet Archive, and maintained as business records of that entity. Federal Rule of Evidence 901(a) requires that before evidence is admitted, "the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." That standard was amply met here.

Gasperini relied on Novak v. Tucows, Inc. , 330 F.App'x 204 (2d Cir. 2009), in which the Court affirmed a district court decision excluding screenshots from the Archive for lack of authentication.Here, he government 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. 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 Archive's records. Based on this testimony, the district court found that the screenshots had been sufficiently authenticated.

The Third Circuit considered the admissibility of Internet Archive records on a similar record in United States v. Bansal , 663 F.3d 634, 667–68 (3d Cir. 2011). 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. Id. at 667. 

The Second Circuit agreed with the holding of the court in Bansal , and held 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." United States v. Tin Yat Chin , 371 F.3d 31, 38 (2d Cir. 2004). 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. Accordingly, a sufficient basis was laid to place the admission of the evidence well within the discretion of the district court, and Gasperini's challenge therefore fails.  You may read the full text of the Gasperini opinion here.

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