Websites have become an integral part of every modern organization, including the government. Every day, a constant stream of information is being posted on the web. For government, every data published is considered as a Public Record, which by law should be retained and disclosed to the citizens, whenever the need arises.
Public Records Laws, though it may differ per state, also mandates that public records be subjected to records management procedures and regulations issued by the state. This involves records retention and implementation of necessary safeguards against loss of records. For this reason, it is critical for government organizations to deploy electronic records archiving solutions to comply with these obligations.
Why is a Back-up not enough?
As government agencies increasingly use the web as one of their main channels in reaching out to citizens, they could in some way influence the actions and behavior of citizens and businesses. In effect, they can be held accountable for the information they disseminate on their websites. In general, any information published on a website has the same legal status as a hard copy of your documents.
Recently, disputes over website contents are on the rise. In case of a claim, a website can be used as evidence in court. Therefore, keeping a reliable back-up of all digital documents in your website is just as important as knowing what information has been delivered to your visitors. However, a simple back-up is not enough to pass as legal evidence in court.
To use digital documents in court, they need to comply with the Federal Rule of Evidence, specifically Rule # 901. This requires you to provide proof of data integrity and authenticity of each webpage you want to submit as evidence. Data authenticity means that you can prove that the web pages you present actually comes from your website and were online on a certain date. Data integrity, on the other hand, means that you can prove that the archived page has not been changed over time.
The following examples are show how digital documents were not accepted as legal evidence in court:
1. Vinhnee vs. American Express
"In 2003, Vee Vinhee owed American Express more than $40,000 on his two credit cards. He filed for bankruptcy while American Express sued him to get him to settle the balances he owed. During the course of the case proceedings, the credit card firm presented electronic records of Vinhee’s monthly statements as evidence to the court. However, the court refused to accept these online records as evidence because the firm cannot prove authenticity of the records. AMEX appealed but lost the case in the end."
2. Lorraine vs. Markel American Insurance Company 
"The case of Lorraine vs. Markel American Insurance Company dealt with a lightning damage to a yacht owned by Jack Lorraine and Beverly Mack. During the proceedings, both parties offered email archives, backed up with hardcopies of the emails, as evidence to support their claims. Although both sides had no objections in presenting emails for evidence, Chief US Magistrate Judge Paul W. Grimm rejected the email submissions on the grounds that these documents did not comply with standards of the Federal Rules of Evidence."
3. Janssen-Ortho Inc. vs. Novopharm Limited 
"The suit involved a generic drug company trying to strike out expert witness evidence about drug tolerance. The expert’s affidavit merely referenced to a homepage link and did not specify nor attach any webpage to be presented as exhibits. Canada’s Federal court did not accept the affidavit as evidence on the basis that a hyperlink to a homepage was not sufficient to make the entire site and its contents as evidence."
The PageFreezer Solution
With the right website archiving solution, you can protect your organization from violations and non-compliance issues with the Records Management laws. Regular archiving systems may be able to give you a daily backup of your website pages. However, they may not be able to provide your archive the integrity and authenticity it needs to qualify as legal evidence in case of a claim.
PageFreezer is an online service that archives your websites daily. It authenticates and maintains the integrity of your records by placing a digital signature and timestamp on each archived file. It uses atomic clocks, synched with the National Institute of Standards and Technology, to provide legal date and time.
PageFreezer also provides you with tools that allow for easy browsing and searching of your documents within your archives. More importantly, it provides you with the strong legal evidence that is acceptable in court.
References & Quotations:
#FINRA #ElectronicRecordsManagement #SEC #publicrecords #ERM
Financial Advisor Magazine
Lorraine vs. Markel American Insurance Company
Janssen-Ortho Inc. and Daiichi Pharmaceutical Co., LTD.