The law and web archives

I have noticed the growing number of commercial web archiving services springing up in the US. One of the drivers of this is the need to preserve and provide websites/pages as legal evidence. Citing a webpage in a legal case requires the need to prove that a webpage existed as stated at a time as stated.

Each page is time stamped with an ANSI X9.95 compliant Time Stamp Authority securely synchronized with the certified atomic clocks of a Stratum-1 Time Server. This trusted, non-refutable time that cannot be altered without detection provides legal proof when the page was actually archived. – http://pagefreezer.com

The Iterasi Page Notary tool provides a powerful way for you to save any webpage you can view. Even webpages requiring a username and password (e.g., Facebook) pose no problems to the Page Notary tool. – http://www.iterasi.net/legal-services/

Many commercial organisations need to be able to show what they said on their or others websites, or their staff or others said in social media, to protect them from litigation or to provide evidence for suits. Individuals in libel or other legal cases need to prove what was said about them, or indeed what they said. All of these are growing concerns as the Internet continues to replace all other media as the main communication platform. When a print publication was published it materially existed and copies were potentially (like a book or newspaper) held by numerous individuals and organisations, it could not then be un-published. And to make sure that the provenance of the published work was authoritative it was historically illegal in Australia to publish without a printers imprint.

On the Internet however it is possible to publish totally anonymously and to un-publish by removing all trace of a document (at least on the host site). It is also possible (as has been shown by numerous hackings) to publish content on someone else’s webspace, to create false identities mimicking someone else, or to mimic a whole website or webpage.

FIFA World Cup website fake image

One issue I would think problematic with the type of commercial archiving mentioned is that it does indeed archive a page, and provide a date stamp, but what are the protocols for storage, who can access the archived files and what evidence do we have that the page was produced at the location stated or by the stated publisher. There is a lot more to evidentiary value surely than a date stamp.

The Internet Archive has been called on many times to provide evidence in court cases and even has an preformed Affidavit to cope with the load. But it acknowledges that it can say nothing of the authorship and I would suspect that there would still be issues with dynamic content which could mislead.

I would contend that one would need evidence from both the computer that the content was uploaded from and from the webpage/site before one could be sure of ascertaining certain proof.

A very good legal article at http://lawyers-law.com/authenticating-web-pages-as-evidence/ from the US talks more about this subject expanding on US evidence law.

There does not seem to be much case law in Australia that has involved webpages/sites as evidence and there has been no call on the PANDORA Archive to provide archived documentary evidence. This unfortunately may mean that courts are allowing webpage evidence without securing any substantiation.

There have been the Gutnick case and various criminal cases involving posts within facebook (however in the facebook examples the evidence was provided by facebook to Police and is not a substantial part of criminal proceedings evidence).
But it seems likely a case and evidence request will come eventually, but how webpages/sites (archived or live) will be treated under the Evidence Act 1995 is seemingly yet to be fully tested. The Evidence Act does not mention the Internet and talks only of ‘electronic communications’. The Act was written when email and the internet were in their infancy and seemingly relates more to faxes.

Electronic communications
(1) If a document purports to contain a record of an electronic communication other than one referred to in section 162, it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that the communication:
(a) was sent or made in the form of electronic communication that appears from the document to have been the form by which it was sent or made; and
(b) was sent or made by or on behalf of the person by or on whose behalf it appears from the document to have been sent or made; and
(c) was sent or made on the day on which, at the time at which and from the place from which it appears from the document to have been sent or made; and
(d) was received at the destination to which it appears from the document to have been sent
(e) if it appears from the document that the sending of the communication concluded at a particular time–was received at that destination at that time.

The section ‘unless evidence sufficient to raise doubt about the presumption is adduced’ would obviate almost all electronic communications as evidence given the ease of proving that almost any page or online communication can be either created at will, or be tampered with.

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2 thoughts on “The law and web archives

  1. Great article: not that many people are aware of this issue and this is exactly what we resolved with PageFreezer.com: archiving webpages for legal purposes.

    In this case, it is not just a matter of “placing a timestamp”.

    PageFreezer acts as a “Webpage Escow” service. In addition to “just” snapshotting webpages, we use cutting edge technology to establish strong legal evidence of website snapshots that comply with Fed Rules of Evidence 901 (which are comparable to rules in other countries).

    To offer indisputable digital evidence of a webpage that can pass authenticity and data integrity tests, we built our archive system on a ANSI X9.95 compliant Time Stamp Authority.

    In other words: we place a digital timestamps and signatures on each archived webpage using certified atomic clocks to establish a “legal time” and trail the whole process of data acquisition and storage.

    A digital signature is nothing more than a calculated number in combination with a datestamp. If an archived webpage was changed by someone else, recalculating this number and comparing it to the original number provides proof whether the data has been altered.
    This method (using digital signatures and timestamps) is actually embedded in law.

    In case of a lawsuit, PageFreezer can release webpages on request in the original fileformat including the digital signature, timestamp, additional documents and an affidavit, which describes the whole process of webpage acquisition. In case additional questions are raised a technical inspection of our facilities should resolve any last doubt.

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