GATHERING ONLINE EVIDENCE

December 17, 2021 (updated Dec 27 21)

In a Facebook conversation by a knowledgeable WHB advocate John Cox, he noted:
“Federal Court Evidence can not be placed upon the INTERNET, shown to the public at large, nor Sold”
This led me to search for the complete verification of this topic (still in progress).

(Update: Dec 27 21 – Unfortunately… since the writing of this article, and me not knowing about saving articles yet, this article has dissappeared from existence, and unretrievable with a dead link. A lesson can be learned from this on how important and valuable archives are and ‘saving them when you see them‘. In 10 days it was gone!)

EVIDENCE

Noted by ABA (American Bar Association): Recent Federal Court Ruling on Admissibility of Online Evidence “Don’t waste your time capturing online evidence,” does not mean that gathering online evidence is not extremely important. To the contrary, the majority of today’s law practice is centered around electronic evidence including online evidence. Instead, “Don’t waste your time capturing online evidence” means that attorneys need to capture online evidence in a usable format to ensure that, if needed, their captures will be admissible evidence.”

ARCHIVES

A ‘useable format’ that shows a chain of custody is admissible.

After further reading on this law and of what is accepted, a site I use already for research ‘INTERNET ARCHIVE‘ and their massive projects archives, one of which is ‘the Wayback Machine‘ is acceptable format.

I found that they have a free extension for us to use when saving online evidence. If we want it to be admissible in ANY court, we must make the effort.

Go to their web.archive.org page and on the left side it shows the ‘extensions’ (chrome, safari, etc). You can add to your computer or mobile app (this seems to be a dead link for android app, though archived, still searching working link), and easily save the pages. Follow up: I was not able to locate a current mobile app, but was able to install the website main page on phone desktop. While this takes a little more effort to save articles, it must be done to preserve webpages safely.

Their project is 25 years in the making and a valuable resource!

I have found them to be a very useful source! When our government has deleted the pages I seek (dead links), I often have located them at WAYBACK.

They capture not only the screenshot with the ‘metadata needed’ for documentation, but the entire page. Even the links can be saved as it is seen when you saved it (sign up free account for these extra free features).

If the site/page owner makes changes after you already gathered the evidence, it will still be exactly as you viewed it.

BRILLIANT! Created by founder Brewster Kahle who was inducted into the internet hall of fame in 2012.

Testing the ‘Machine’

While I have yet to use this Wayback Machine for the WHB advocacy ‘Fight for Freedom’ data base, I will use this ‘free version’ for all future effort as often as I can (without a $$$ subscription) though I will try to donate as I can.

I just made my ‘first attempt to page save‘ : BLM – WHB gathers and removals on Dec 23 2021. It seems someone else had saved it on dec 29 2016 (see image below), and a 40 other times in between (40 captures). So any changes on a websites would be noted if you click on the timeline date.

Also… search for archives using older links and dead links may have an archive you weren’t aware of. BLM seems to have nothing recorded prior to 2016, but we know they had a website since the 90’s or earlier. So deep search to find it, don’t give up! I located their old database from 1997 – 2016 here with over 6107 captures of their homepage. Each page saved will have different captures depending on how many times it was saved by people like you and me.

This is significant documention of history! Do your part!

When opening articles with a Wayback account it will tell you if there is an archive to a dead link, and also tell you to save a link that hasn’t been archived yet.

Once you’ve added the ‘extension’ to your phone, or computer (see directions above), if you right click on a page (with mouse), the WAYBACK dropdown menu will say, ‘first version’ (ever recorded), ‘recent version’ (newest saved), ‘all versions’ (a calendar with all dates saved), or ‘save page now’. They do limit the amount of saves you can do in a day (I’ve done more than 50 before being limited), so perhaps you check for the recent version first so you dont waste the efforts.

Usually, news articles (unless updated) and pdf’s don’t change over the years. But websites do.

HINT: Be sure to click the internal links of all pages you visit so they will be archived as well. Often people skip this and valuable info gets lost.

RESOURCES FOR SEARCHING

Using online searching from secondhand sites like Cornell, or Casetext to locate case files info is a good starter point. We all know how difficult it is at times to locate it in the government pages. Though for it to be admissible in court, you will need to find and cite the original.

As noted here: Recent Federal Court Ruling on Admissibility of Online Evidence
“Proponents of online evidence have faced difficulty with the personal knowledge requirement of Fed. R. Evid. 602. One federal court previously ruled that a person who has seen a printout of a webpage, but could not testify from personal knowledge that the printout accurately reflected the website, was insufficient to establish authenticity. See Cook v. J & J Snack Foods Corp., 2010 WL 3910478, at *5 (E.D. Cal. 2010). In September 2015, another federal court went a step further by excluding printouts of online news articles even with a witness who was able to say that the printout appeared as they did on the webpage. See Berrettini, 2015 WL 5159746. First, the court noted that printouts from Westlaw or other archives of articles that were previously published by separate newspapers or periodicals were not self-authenticatingId.  Additionally, it held that with regard to archive websites such as Westlaw, “any attempt by a user of the website to authenticate from memory must fail” because there needs to be personal knowledge of the reliability of the archive source

Newspapers and Articles

This is the same advice for newspaper, and magazine articles. Often, I find a story, which is a reprint of an original article that is no longer online (dead link). While text was likely copied and pasted identically as found, it would not hold up in court… unless the original was saved in a format like Wayback Machine.

When I think of the articles where I have not located the originals, and only have reprints… Like when Martha Mendoza and her historical effort that broke the story on corruption inside the BLM. How they knowingly sold the federally protected horses to kill buyers who then sold them to slaughter. How our government shut down the investigation, and swept it under the rug.

This is why it is crucial to use webpage savers for all evidence you feel is significant and needs to be archived!

WORK IN PROGRESS

At the time of this posting and due to complexity of deep searching required, I have not completed my results regarding laws, images, and original material as was noted in original post topic, so my question has not been answered in its entirety.

I will add more to this article as I gather it.


Community Effort

If you have find important documentation in this evidence format, and wish to have us add it to the data base project, contact me.

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