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

Eighth Circuit remands immigration case in which the court relied on Wikipedia information, in Badasa v. Mukasey, 540 F.3d 909 (8th Cir. Aug. 29, 2008) (No. 07-2276)

Given the pervasive role of the Internet on so many levels of daily life, it is not surprising that information from the Internet is increasingly presented or considered in court. For example, a court may take judicial notice of information from the Internet as long as the requirements of the judicial notice rule, FRE 201, are satisfied. One recent case used the Internet to take judicial notice of the distance. See Citizens for Peace in Space v. City of Colorado Springs, 477 F.3d 1212, 1219 n.2 (10th Cir. 2007) (“[I]t appears that Checkpoint 1 was approximately 310 yards from the front of the International Conference Center. See last visited January 23, 2007). We take judicial notice of this distance. See FED. R. EVID. 201(b), (c).”). As with other evidence, information from the Internet may be admitted as long as it meets the standard under the FRE.

However, a recent case by the Eighth Circuit highlights the limits of relying on information from the Internet. In the immigration case, petitioner Badasa applied for asylum and for relief under the Convention Against Torture. After the immigration judge and Board of Immigration Appeals dismissed her case for failure to establish her identity, she moved to reopen and submitted a laissez-passer travel document. The case was reopened and remanded to the immigration judge. The Department of Homeland Security argued the laissez-passer document failed to establish identity and was merely a travel document (“simply the granting of the authorization for an alien to travel to or from that country”). In support of its position, the department provided information from Wikipedia explaining the term. The immigration judge agreed that the laissez-passer document was a travel document based on information supplied by the applicant and failed to establish identity. The asylum application was denied. The Board of Immigration Appeals dismissed the appeal after finding no clear error in the immigration judge’s decision. The BIA was troubled by the reference to the material, noting that it did “not condone or encourage the use of resources such as in reaching pivotal decisions in immigration proceedings,” but the ruling was supported without considering the Wikipedia material.

The Eighth Circuit remanded the case for further proceedings “because the BIA failed adequately to explain its conclusion that Badasa did not establish her identity.” Badasa, 540 F.3d at 910. The Eighth Circuit panel concluded it was inappropriate for the immigration judge to consider the Wikipedia Internet information. As the opinion noted:

“Wikipedia describes itself as ‘the free encyclopedia that anyone can edit,’ urges readers to ‘[f]ind something that can be improved, whether content, grammar or formatting, and make it better,’ and assures them that ‘[y]ou can’t break Wikipedia,’ because ‘[a]nything can be fixed or improved later.’ Wikipedia: Introduction, (last visited August 7, 2008). Wikipedia’s own ‘overview’ explains that ‘many articles start out by giving one – perhaps not particularly evenhanded – view of the subject, and it is after a long process of discussion, debate, and argument that they gradually take on a consensus form.’ Wikipedia: Researching with Wikipedia, (last visited August 7, 2008). Other articles, the site acknowledges, ‘may become caught up in a heavily unbalanced viewpoint and can take some time – months perhaps – to regain a better-balanced consensus.’ Id. As a consequence, Wikipedia observes, the website’s ‘radical openness means that any given article may be, at any given moment, in a bad state: for example, it could be in the middle of a large edit or it could have been recently vandalized.’ Id. The BIA presumably was concerned that Wikipedia is not a sufficiently reliable source on which to rest the determination that an alien alleging a risk of future persecution is not entitled to asylum. See also Campbell v. Sec’y of Health and Human Servs., 69 Fed. Cl. 775, 781 (Fed. Cl. 2006) (observing that a review of the Wikipedia website “reveals a pervasive and, for our purposes, disturbing set of disclaimers”); R. Jason Richards, Courting Wikipedia, 44 Trial 62 (Apr. 2008) (“Since when did a Web site that any Internet surfer can edit become an authoritative source by which law students could write passing papers, experts could provide credible testimony, lawyers could craft legal arguments, and judges could issue precedents?”).”

“The BIA did say that Badasa was not prejudiced by the IJ’s reliance on Wikipedia, but it made no independent determination that Badasa failed to establish her identity. Whereas the BIA sometimes applies a ‘harmless error’ standard when an IJ considers improper evidence or makes other procedural error, and thereby evaluates whether the error affected the IJ’s ultimate conclusion, the BIA here determined only that there was sufficient evidence, other than Wikipedia, to establish that the IJ’s finding was not ‘clear error.’ This is the correct scope of review when an IJ has made findings of fact based on proper evidence, 8 C.F.R. § 1003.1(d)(3)(i), but application of the deferential ‘clear error’ standard to this situation leaves us without a determination by the agency as to whether Badasa proved her identity. We know only that the BIA thinks that if, hypothetically, the IJ had not considered Wikipedia and reached the same conclusion, then that conclusion would not be clearly erroneous. But we do not know whether the IJ would have reached the same conclusion without Wikipedia, or whether (and, if so, why) the BIA believes that the IJ’s consideration of Wikipedia was harmless error, in the sense that it did not influence the IJ’s decision. Because the BIA’s ultimate conclusion that Badasa failed to establish her identity is not adequately explained, we must remand for further proceedings.”

Badasa, 540 F.3d at 910-11 (citations omitted).

The Badasa case underscores that information from the Internet, like other evidence, must first satisfy evidentiary or other threshold standards before it may be appropriately considered in court.

Federal Rules of Evidence