Authenticating Internet Screenshot Evidence Under FRE 901

digital code In prosecution involving the distribution of controlled substances on Internet web sites, the screenshots of the web site were authenticated and admitted for purposes of showing the charged conduct by (1) obtaining the screenshot from an Internet archive (the Wayback Machine), (2) testimony from operator of the Internet archive about the reliability and operation of the archive, (3) witness perception about the similarity of the charged screenshot to known postings from the defendant's website, and (4) opinion testimony by the authenticating witness about the screenshot FRE 901(b)(1), in United States v. Bansal, 663 F.3d 634 (3d Cir. Dec. 14, 2011) (Nos. 06–1370, 06–2535, 06–2536, 06–3043, 07–1525, 07–1526, 07–4618, 09–1827)

When Internet images are presented as evidence, how can these images be authenticated? One common way is through use of the "screenshot" - a snapshot or recording of an image displayed on a computer monitor which depicts what was visible on the monitor to an observer. The screenshot record is usually a digital image recorded by a receiving computer or other means of intercepting the video display, such as camera or DVR. See, e.g., Specht v. Netscape Communications Corp., 306 F.3d 17, 23 & n.10 (2d Cir. 2002) ("some plaintiffs added that they could not 'remember' or be 'sure' whether the screen shots of the SmartDownload page attached to their affidavits reflected precisely what they had seen on their computer screens when they downloaded SmartDownload."); United States v. Keller, 236 Fed.Appx. 274 (9th Cir. 2007) (Unpublished)("admitt[ing] an exhibit containing computer screen shots of a document with the title “fuckyou.doc” as relevant nonhearsay for the purpose of establishing fraudulent intent on the part of [defendant] Keller ... with respect to [the conspiracy's] business's purported enrollment fee refund policy."); United States v. Herndon, 501 F.3d 683, 691-93 (6th Cir. 2007) (In receiving child pornography case, admitting evidence of "images of child pornography, which were displayed on the screen of [defendant] Herndon's laptop.... Coupled with [officer] Cooley's testimony concerning what he observed upon arriving in Herndon's bedroom ..., how the images appeared on Herndon's computer screen and how they became plainly visible to Cooley who, as he testified, did not take any additional steps to see the pictures"; noting that officer recovered 12 screenshots by "[taking] a picture" of the monitor and room).

The Third Circuit recently examined a case of authenticating a screenshot as evidence of the charged act of illegally distributing controlled substances. The theory for admissibility was the receipt of testimony by a witness with personal knowledge of what defendant displayed under FRE 901(b)(1).

In the case, defendants Bansal and Mullinix operated an Internet site which supplied drugs from India to persons in the U.S. without requiring a prescription. After their convictions, the defendants argued that the images displayed as evidence of evidence for the charged acts was not properly authenticated.

The Third Circuit had little difficulty in determining that the screenshots were appropriately authenticated under FRE 901(b)(1) allowing authentication through a witness with personal knowledge. According to the circuit:

The District Court admitted into evidence screenshots of Bansal's website, which included information about his online pharmacy operation. Bansal contends that these screenshots were not properly authenticated. We disagree. Rule 901(b)(1) requires that before evidence is admitted, its proponent must produce evidence “sufficient to support a finding that it is what it purports to be.” Testimony of a witness with personal knowledge is sufficient. In this case, the government obtained the screenshot images from a company called the Internet Archive, which runs a website called the Wayback Machine. The Wayback Machine seeks to catalogue all websites on the internet and currently has a database spanning more than a decade. To authenticate that the screen-shot was what it purported to be, the government called a witness to testify about how the Wayback Machine website works and how reliable its contents are. The witness also compared the screenshots with previously authenticated and admitted images from Bansal's website and concluded, based upon her personal knowledge, that the screenshots were authentic. This was evidence “sufficient to support a finding” that the screenshots were “what they purport[ed] to be,” rendering them admissible under Rule 901(b)(1).
Bansal, 663 F.3d at 667 (citing FRE 602).

As Bansai suggests, there is no single way to authenticate a screenshot. In addition, compared with other cases that have accounted for admission of screenshots, the showing approved by the Third Circuit appears to be comprehensive. Personal knowledge by a witness is one way to provide evidence "sufficient to support a finding that it is what it purports to be” under FRE 901, but not the only way.


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