Evidence Domain: How do you preserve data evidence before it disappears?

Internet | Accountability

One of the more damning things about evidence is that there are usually parties who want it removed, such as the by the accused.

Suppose you find information on the Internet which could be evidence of a crime. You’d like to call attention to the injured parties, as well as the appropriate government agency, but without indemnifying yourself. And you want to do this before the publisher of the evidence is able to pull it away. What do you do?

After corroborating the information, it’s a good idea to determine how long it’s been there. The Internet Archive (aka the Wayback Machine), has done a magnificent job of archiving web pages over the last ten years. Unfortunately, nowhere in its F.A.Q. does it mention its responsibility towards in preserving evidence. In fact, it still gives control to the publisher:

“The Internet Archive is not interested in preserving or offering access to Web sites or other Internet documents of persons who do not want their materials in the collection. By placing a simple robots.txt file on your Web server, you can exclude your site from being crawled as well as exclude any historical pages from the Wayback Machine.”

Thus the publisher has a quick recourse for removing evidence.

Perhaps you might want to make a copy of it? This is tricky when the evidence is the crime itself. For example, the evidence is personal data, like medical data protected by the federal HIPAA regulations. Creating a mirror of the information may be illegal; even linking to it might have the same effect (by drawing public attention to it).

What’s left to do?

I have a couple of ideas. Easiest among them is to use to drop it in an electronic version of a safe-deposit box– a remote website backup service. Submit the offending URL, and send the password to the appropriate government agency. You’d also be wise to submit the Internet Archive version as well.

Granted, that costs a few bucks. Is it possible to use the Internet Archive, as, we’re now calling it, an Evidence Domain? Possibly. They’d have to create a special process for declaring evidence, in such a way that it would be protected from removal, until given a court order.

That’s a lot to ask of a nonprofit. Perhaps its easiest to use the 3rd-party backup solution. But it would be nice to have a well-known Internet service advertise such a use.

This situation happened to Elisa Cooper over 2004-05. That she did link to a website, that she did make a mirror, that her blog had Kaiser Permanente as its principal target, did not endear her to the eyes of the plaintiff, the state, or the courts. Here’s her timeline of events.

I’m not passing judgment other than saying that’s the essence, from an evidentiary viewpoint, of what happened. Elisa reached out to me a couple months back, and we’ve been continuing the conversation on rankism. I read up on her situation and wanted to do what I could to help her resolve it. Ultimately what I wanted to do was to try and come up with some specific lessons to draw to be able to help the next person. So I’ll be sending this out to some legal-minded folks I know. I will link to some answers below.