Page Vault is a Chicago-based software company that specializes in helping attorneys and law firms capture Web content (websites, web pages, social media, video, etc.) in a way that maintains chain of custody and is legally admissible in court. We recently spoke with Page Vault’s Executive VP, Patrick Schweihs, and Chief Technology Officer Todd Price about responsible handling of electronic documents and challenges facing the judicial system as more online evidence makes its way into the courts.
In general, how does software like Page Vault ensure chain of custody with regard to electronic evidence?
Patrick Schweihs: As a company, Page Vault has a few different offerings. The first is our Page Vault Browser, which we license out to law firms, paralegals or other legal support so that attorneys can use it to go out and capture Web content. The way the Browser is designed is that the end-user is actually controlling a browser that is under our control. By making sure we have ultra-high security settings so no tampering can occur, it allows us to maintain the chain of custody for any capture that’s being done, even though the actual operation of our Browser is being done by our end-client.
The other big solution is Page Vault On Demand. Unlike the Browser, On Demand is a service where clients ask us to go capture a website, a Facebook post, video or whatever — and we do the work for them.
How is the veracity of electronic documents established if they are captured this way?
Todd Price: Our software makes a series of screen shots, then stitches them together into a single PDF file. We do a couple of digital time-stamps, and at the heart of that is a “hash” value (a numerical digital tag unique to that page). A digital time stamp also adds a date and time at which the hash value was obtained, so not only do you know that this content existed in this form, you know the exact time and date it existed. We also capture all the metadata, such as the address of the server, the IP address, all of which we also verify and time stamp.
Is that system foolproof?
Todd Price: Yes, it is. We architected it so that it would be impossible for someone to fake content. It’s like we’ve created a robot that has a lot of constraints around what it can and can’t do. Our Browser looks and operates like a normal browser, but it can’t do things like print, and no one can use it to, say, set up a proxy server or do some other trick that makes it look like the content is legitimate. Our architecture prevents all that.
Are major social media platforms (Facebook, Tumblr, Instagram, etc.) taking measures to make e-capture and verification harder to establish? And should lawyers be aware of or concerned about that?
Patrick Schweihs: One thing to be aware of is that a lot of these social media platforms don’t make it easy for lawyers to collect from their site. For example, a lawyer cannot go and subpoena Facebook or any other social-media platform for people’s profiles, photos or timelines — if it’s a civil case, that is. If you try, the platform will respond that they aren’t going to provide that information because of the Stored Communication Act (SCA). The SCA shields these platforms from having to release that kind of information. It’s different if the request is coming from a government agency and it’s a criminal case. But we deal mostly with civil cases, so our clients are out of luck when it comes to requesting anything from Facebook. What they’re left with is actually having to go to the platform and make screen shots, or screen captures themselves. It takes a lot of time, it’s a grind, so we’ve made our solution simple to use.
That said, we’re seeing more and more complexity with social-media platforms. They’re constantly innovating and putting in new features. That makes it a challenge for lawyers to keep up. And that’s one of the things we do for our clients; we keep up with it for them, so they don’t have to tear their hair out.
As social media platforms and communication channels (Slack, Yammer, HipChat, etc.) proliferate and diversify, what new challenges do they present for lawyers and the courts with regard to e-documentation?
Todd Price: That’s one of the reasons we focused on the web browser as the interface for capturing content. In general, no matter what social-media platform people are using, they are accessing it through a browser, so the browser itself is the one constant. Focusing on the browser allows us to future-proof ourselves, assuming something doesn’t come along and replace the browser as the primary way of accessing web content.
Patrick Schweihs: There are of course certain platforms, like SnapChat, where the message disappears and no one can capture it, which is the appeal of the platform. There are other secure forms of communication, like WhatsApp, that you can’t access, and are not going to be useful as evidence either.
What challenges or concerns do you see for the court system going forward with regard to issues involving Web-based evidence?
Patrick Schweihs: Courts are looking for evidence that’s been handled properly and legally. If you’ve got a legal assistant doing web captures or print-screens and introducing it as evidence, it’s easy for a tech-savvy attorney to call that evidence into question because the chain of custody through a trusted third-party has not been established.
Judges are also getting more tech-savvy. Terms like “metadata”, “time stamps”, “URLs” — that nomenclature is not foreign to judges anymore. And for lawyers, the rules of professional responsibility are being updated to include sanctions for lawyers where if something goes wrong, the lawyers can’t claim they didn’t understand the technology. That just doesn’t fly anymore.