Authenticating Internet Web Pages as Evidence: a New Approach

By John Patzakis [1] and Brent Botta [2]

Previously, in Forensic Focus, we addressed the issue of evidentiary authentication of social media data (see previous entries here and here). General Internet site data available through standard web browsing, instead of social media data provided by APIs or user credentials, presents slightly different but just as compelling challenges, which are outlined below. To help address these unique challenges, we are introducing and outlining a specified technical process to authenticate collected “live” web pages for investigative and judicial purposes.[3] We are not asserting that this process must be adopted as a universal standard and recognize that there may be other valid means authenticate website evidence. However, we believe that the technical protocols outlined below can be a very effective means to properly authenticate and verify evidence collected from websites while at the same time facilitating an automated and scalable digital investigation workflow.

Legal Authentication Requirements

The Internet provides torrential amounts of evidence potentially relevant to litigation matters, with courts routinely facing proffers of data preserved from various websites. This evidence must be authenticated in all cases, and the authentication standard is no different for website data or chat room evidence than for any other. Under US Federal Rule of Evidence 901(a), “The requirement of authentication … is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” United States v. Simpson, 152 F.3d 1241, 1249 (10th Cir. 1998).

Ideally, a proponent of the evidence can rely on uncontroverted direct testimony from the creator of the web page in question. In many cases, however, that option is not available. In such situations, the testimony of the viewer/collector of the Internet evidence “in combination with circumstantial indicia of authenticity (such as the dates and web addresses), would support a finding” that the website documents are what the proponent asserts. Perfect 10, Inc. v. Cybernet Ventures, Inc. (C.D.Cal.2002) 213 F.Supp.2d 1146, 1154. (emphasis added) (See also, Lorraine v. Markel American Insurance Company, 241 F.R.D. 534, 546 (D.Md. May 4, 2007) (citing Perfect 10, and referencing MD5 hash values as an additional element of potential “circumstantial indicia” for authentication of electronic evidence)...

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