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Revealing Electronic Tags to Our Daily Lives
POSTED ON February 07

“Right, my phone. When these things first appeared, they were so cool. Only when it was too late did people realize they are as cool as electronic tags on remand prisoners.” David Mitchell, Ghostwritten

I admit that I am not an early adopter of technology.  I have never stood in line for a new mobile device and, frankly, I hold onto my devices unless they pose a security risk.  I’ve bought a new device when shamed into it – e.g.  “Hey haven’t seen that model in a while. My grandma uses one of those.”  (I bought a new device the next day.)

I am not sure exactly why I delay, given that this technology has become such a relevant part of modern life. I do believe constant upgrades and model introductions are part of grand scheme of planned obsolesce.  Come on, we all know that.  But, perhaps, that topic (aka rant) is probably best left for another blog article.

Today, I’d like to talk not about that shiny, slick technology package, but rather the data that little device stores about its user.

I believe the rules of professional conduct require every attorney to consider mobile device use in every case.  We use these devices to capture snapshots of our daily interactions with friends, colleagues, and others.  Think about it: In just one day, how many times do you use your mobile device?  Studies vary, but on average a person spends 2-3 hours a day using a mobile device for texting, tweeting, web surfing, playing a game, or even the old fashioned telephone call.  An attorney that ignores this vital recorder of a custodian’s conduct ignores the duty embedded in Model Rule 1.1 to understand relevant technology.

Some of the potentially discoverable data normally found on almost any mobile device include:

  • Text Messages (Chats, SMS or MMS)
  • Images (Photos taken by device, transferred, or received)
  • Call logs
  • Address books and/or contacts
  • Emails
  • Videos
  • Notes (text and recorded)
  • Documents (word processing, spreadsheets, presentations, etc.)
  • Voicemails
  • GPS Locations
  • Calendars
  • Internet history
  • Search engine history
  • Social media apps
  • Information on other sources of data (cloud backups, cloud storage)

It is quite possible that data from mobile devices will become your primary evidence in your civil or criminal matter.  Phone logs, simple and multimedia text messages, photographs, geographic location information, active and deleted date all create a timeline of events, a colorful storyboard including the exact time and place of conversations.  Add photographs, video, and inferences to the fragments left behind by deleted data and you can complete your novella.  It is far more compelling to have a digital footprint supporting your timeline of events than simply relying upon a script not supported by fact.

Mobile data can make or break your case. For example, in one case a client was quite clear and vocal regarding his timeline of events, including his mobile calls, text messages, chats, and videos in which he indicated the defendant in the action had sent lewd and harassing messages.  On the surface, his story was plausible – believable, in fact – and he was quite eager to have his mobile device examined.  Unfortunately, he didn’t account for the precision of the digital footprint of carefully deleted messages, contacts, photos and videos.  When the forensic examiner easily recovered deleted text messages and added them into the string of conversations, it became abundantly clear that he had been less than truthful about events as they had truly taken place.

A second example is less dramatic but equally effective.  In a criminal matter, a forensic examiner collected mobile phone pursuant to a valid warrant.  The forensic examiner recovered the phone log, text messages and photographs dates and time stamps with location identification.  These artifacts illustrated the exact travel path taken during a multi-state crime spree. See United States v. Jones, 918 F. Supp. 2d 1, 5 (D.D.C. 2013). “[T]he use of cell phone location records to determine the general location of a cell phone has been widely accepted by numerous federal courts.”

Mobile devices make our lives easier, keep us connected and act as our personal concierge.  For them to function and memorize us, they must record us using an electronic tag to our daily lives.  Those recordings can either corroborate or refute a witness’s recollection of events.  In your next case, don’t forget this critical source of evidence to get an electronic record of the facts.

 


About the Author Chris

Author Avatar Christine Chalstrom is the Founder, CEO, and President of Shepherd Data Services, Trustee, Mitchell Hamline Law School and Adviser, Center for Law and Business. She has spoken widely on the Amendments to the Federal Rules of Civil Procedures, Digital Forensics, and eDiscovery best practices. Her credits include presentations to the American Bar Association, Association of Certified e-Discovery Specialists (ACEDS), Corporate Counsel Institute, MN Association of Corporate Counsel, MN Association of Litigation Support Professionals, MN CLE, Mitchell Hamline School of Law, Upper Midwest Employment Law Institute. She is an attorney, programmer, and forensic examiner.