Practical Advice

Wayback to Your Terms & Policies

Published: Oct. 27, 2020

A Texas federal judge declined to take judicial notice of terms of use retrieved from the Internet Archive’s Wayback Machine, a service that allows users to view archived copies of websites, in some cases going back years or decades. The court’s order highlights risks for companies that lack proper documentation and preservation of previous versions of terms, policies, and consumer consent and purchase flows.

American Airlines Class Action

American Airlines moved to compel arbitration in a class action lawsuit brought by passengers who alleged that the airline refused to refund passengers for cancelled flights. American argued that certain plaintiffs were bound to arbitrate their claims because they purchased their tickets through Expedia and Hotwire, whose respective terms of use contained arbitration agreements covering claims against travel providers like American. American asked the court to take judicial notice of cached copies of Expedia’s and Hotwire’s terms of use which were archived on the Wayback Machine as they appeared on the companies’ websites when plaintiffs purchased their tickets.

The court acknowledged that numerous federal courts have taken judicial notice of Wayback Machine archived webpages under Federal Rule of Evidence 201. In fact, dozens of courts previously concluded that Wayback Machine archived pages were judicially noticeable as “facts that can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” For example, district courts in the Northern District of California have taken judicial notice of a cached copy of a 2013 Facebook privacy policy to identify policy changes that Facebook made after the Cambridge Analytica incident and an archived webpage to determine whether it featured copyright-infringing photos. Additionally, in a 2014 Eastern District of Michigan case, the court judicially noticed Wayback Machine webpages archived from 2000 to determine when a party began using a trademark. Parties can even pay a fee of $250 to obtain an affidavit of authenticity from the Internet Archive, which some courts have concluded is necessary to satisfy Rule 201.

The American Airlines court, however, declined to take judicial notice of the Wayback Machine archives of Expedia’s and Hotwire’s terms of use, in part, because the Internet Archive disclaims the accuracy of its archives, citing a waiver in its terms of use that “the Archive makes no warranty or representation regarding the accuracy, currency, completeness, reliability, or usefulness of the content.” This is not the first time a court has refused to judicially notice Wayback Machine content—for example, courts in the Middle District of Florida and Southern District of California have refused to consider Wayback Machine evidence, citing the same waiver in the Internet Archive’s terms of use and inadequate authentication of the produced evidence.

Key Takeaways

In this case, American Airlines sought to produce other companies’ terms, which it understandably did not have in its records. However, the disagreement about whether third-party webpage archives are judicially noticeable serves as an early warning that companies should not rely on others to produce their own records.

Companies should implement policies to save copies of every iteration of their legal policies (e.g., terms of use and privacy policy), consumer consent flows (e.g., user registration flows whereby users consent to the terms of use), and purchase flows (e.g., subscription purchase flows). Without these records, a company may face challenges and evidentiary burdens in enforcing an arbitration clause, evincing adequate consent, or establishing evidence of required disclosures.