THE LAWYERS WEEKLY
November 18, 2011 | 9
Wayback by STREVT / ThE canadian PRESS, TV by iSTockPho To.com
Web time travel with the Wayback Machine
The next time you receive the
dreaded ‘404—Page Not Found’
message, don’t give up your Internet search in disgust.
Just because you can’t find that
web page doesn’t mean it’s truly
gone. Using the right tools, online
evidence that may have been lost
or destroyed, deliberately or otherwise, can still be found and used.
And you don’t have to hire the
14-year-old hacker next door for
the solution.
Enter the Wayback Machine.
The Wayback Machine (www.
waybackmachine.org) is a service
operated by the Internet Archive,
a non-profit based in San Francisco. Named after a device used
for time travel in the Rocky and
Bullwinkle cartoon series, this
service provides a reliable means
of checking digital footprints by
accessing past versions of web
pages dating back to 1996.
LEONARD
POLSKY
Not every web page is
archived but with more than 150
billion pages available, the service has eclipsed the U.S. Library
of Congress as a repository of
digital information.
To use the Wayback Machine,
visitors simply type in the URL
and a date in a search box and are
immediately taken to the selected
web page. No special software or
passwords are needed. Remarkably, it is free.
Litigators can use this online
evidence in cases of employees
disparaging their employers
online, cyber-squatting, copyright
and trade-mark infringement,
online defamation, unlawful com-
petition, consumer fraud and
criminal prosecutions.
Counsel then had to explain
how they had failed to uncover
such critical evidence despite
months of trial preparation, particularly when a newspaper reporter had found it so easily. The
judge was not impressed by their
pleas that they were mere lawyers
unfamiliar with Internet archives.
In R. v. Ballendine, the accused
was charged with possession of
child pornography. The court
accepted expert testimony that it
is possible to identify Internet
activity on a hard drive by looking
at browser bookmarks and their
history through the Wayback
Machine. A conviction followed.
On the civil side, the court in
ITV Technologies Inc. v. WIC Tele-
vision Ltd. ruled that evidence
obtained from the Wayback
Machine indicating the state of
websites in the past is generally
reliable. Justice Daniele Tremblay-
Lamer noted that the court could
rely on such evidence for an accur-
ate representation of the websites
at the relevant time period.
