Limits To Relying On Internet Materials And Information In Court (Part IV)

Seventh Circuit noted terrorism and counterterrorism expert could not rely on the websites to show group’s nexus to terrorism unless the websites were properly authenticated, in Boim v. Holy Land Foundation for Relief and Development, 511 F.3d 707, 753 (7th Cir. 2007)

As part of a continuing series on Internet evidence, another case, Boim v. Holy Land Foundation for Relief and Development, highlights that information posted on the Internet is inadmissible unless it is properly authenticated.

In Boim, two parents filed an action after their son was killed based on international terrorism acts. Two specific individuals were originally charged with being responsible for the murder of their son. Both were connected to the group Hamas and were apprehended. One defendant, Al-Sharif subsequently killed himself in a suicide bombing at a mall. The second was convicted by the Palestinian Authority tribunal and sentenced to ten years of hard labor.

In support of their U.S. lawsuit holding others responsible, the parents relied in part on website postings indicating Hamas had taken responsibility for the murder. To show that Hamas was responsible for the murder, the parents submitted an expert declaration from “a former member of the Israeli security community who describes himself as an expert in terrorism and counter-terrorism, Islamic movements in the Arab and Islamic world, Palestinian Islamic groups, and Palestinian society and politics.” Boim, 511 F.3d at 752. The expert “relied heavily” on web site information to show one particular defendant was a member of Hamas and that the group was responsible for the murder. The expert stated in his declaration that “[I]nternet websites are a means by which Hamas disseminates such information” about murders and other activities, and “scholars, journalists, and law enforcement routinely rely on the website postings of terrorist organizations for what they reveal about the activities of those organizations. Boim, 511 F.3d at 753. In this case, the expert noted particular websites “indicating that Hamas had taken responsibility for the Beit-El attack that took David Boim’s life and that Al-Sharif was one of the participants in this attack.” Boim, 511 F.3d at 753. On summary judgment, the district court found three defendants were liable to the Boims. See Boim v. Quranic Literacy Inst., 340 F. Supp.2d 885 (N.D. Ill. 2004). A jury further found another defendant was liable and awarded damages in the amount of $52 million, which the district court trebled to $156 million.

On appeal, a divided circuit panel reversed on other grounds. The majority also addressed some “potential hearsay problems” in showing a nexus between the defendants and terrorism and directed the district court on remand to carefully consider the admissibility of this evidence. The circuit considered the admissibility of websites which were attributed to Hamas. Before the websites could be admitted, they would have to be authenticated, which “would typically require some type of proof that the postings were actually made by the individual or organization to which they are being attributed—in this case, Hamas — as opposed to others with access to the website.” Boim, 511 F.3d at 753.

On a separate issue, the majority considered the expert’s reliance on the website posting. The majority noted its concern “that the expert ... not be[] used as a vehicle for circumventing the rule against hearsay.” Boim, 511 F.3d at 753. FRE 703 allows an expert to rely upon hearsay matters “[i]f of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” Nonetheless, the majority cautioned: “Where, as here, the expert appears to be relying to a great extent on web postings to establish a particular fact, and where as a result the factfinder would be unable to evaluate the soundness of his conclusion without hearing the evidence he relied on, we believe the expert must lay out, in greater detail than [expert witness] Paz did, the basis for his conclusion that these websites are in fact controlled by Hamas and that the postings he cites can reasonably and reliably be attributed to Hamas.” Boim, 511 F.3d at 753-54. Since the panel ruling, the Seventh Circuit granted the petition for rehearing en banc and en banc argument was held on September 10, 2008. It remains to be seen whether the en banc court will also address, and to what extent, the role of the website posting. While opinion was vacated, it is similar to other recent decisions concerning the authentication of Internet evidence. Other examples concerning the Limits To Relying On Internet Materials And Information In Court have been noted, including Part I, Part II, and Part III.

Federal Rules of Evidence