Privacy: A Wolf in Sheep’s Clothing? I’m

Next week is Georgetown Law Center’s sixteenth annual Advanced E-Discovery Institute.  Sixteen years of a keen focus on e-discovery; what an impressive, improbable achievement!  Admittedly, I’m biased by longtime membership on its advisory board and my sometime membership on its planning committees, but I regard the GTAEDI confab of practitioners and judges as the best e-discovery conference still standing.  So, it troubles me how much of the e-discovery content of the Institute and other conferences is ceded to other topics, and one topic in particular, privacy, is being pushed to be the focus of the Institute in future.

This is not a post about the Georgetown Institute, but about privacy, particularly whether our privacy fears are stoked and manipulated by companies and counsel as an opportunistic means to beat back discovery.  I ask you: Is privacy a stalking horse for a corporate anti-discovery agenda? Continue reading

A Primer on Processing and a Milestone

Processing 2019Today, I published my primer on processing.  It’s fifty-odd pages on a topic that’s warranted barely a handful of paragraphs anywhere else.  I wrote it for the upcoming Georgetown Law Center Advanced E-Discovery Institute and most of the material is brand new, covering a stage of e-discovery–a “black box” stage–where a lot can go quietly wrong.  Processing is something hardly anyone thinks about until it blows up.

Laying the foundation for a deep dive on processing required I include a crash course on the fundamentals of digitization and encoding.  My students at the University of Texas and at the Georgetown Academy have had to study encoding for years because I see it as the best base on which to build competency on the technical side of e-discovery.

The research for the paper confirmed what I’d long suspected about our industry.  Despite winsome wrappers, all the leading e-discovery tools are built on a handful of open source and commercial codebases, particularly for the crucial tasks of file identification and text extraction.  Nothing evil in that, but it does make you think about cybersecurity and pricing.  In the process of delving deeply into processing, I gained  greater respect for the software architects, developers and coders who make it all work.  It’s complicated, and there are countless ways to run off the rails.  That the tools work as well as they do is an improbable achievement.  Stilli, there are ingrained perils you need to know, and tradeoffs to be weighed.

Working from so little prior source material, I had to figure a lot out by guess and by gosh.  I have no doubt I’ve misunderstood points and could have explained topics more clearly.  Please don’t hesitate to weigh in to challenge or correct.  Regular readers know I love to hear your thoughts and critiques.

I’ll be talking about processing in an ACEDS/Logikcull webcast tomorrow (Tuesday, November 5, 2019) at 1:00pm EST/10:00am PST.  I expect it’s not to late to register.

The milestone of the title is that this is my 200th blog post and it neatly coincides with my 200,000 unique visitor to the blog (actually 200,258, but who’s counting?).  When I started blogging here on August 20, 2011, I honestly didn’t know if anyone would stop by.  Two hundred thousand kind readers have rung the bell (and that’s excluding the many more spammers turned away).  I hope something I wrote along the way gave you some insight or a chuckle.  I’m intensely grateful for your attention.

By the way, if you’d like to come to the Georgetown Advanced E-Discovery Institute in Washington, D.C. on November 21-22, 2019, please use my speaker’s discount code to save $100.00.  The discount code is BALL (all caps).  Hope to see you!

Dig We Must: Get It in Writing

This isn’t a post about e-discovery per se, but it bears on process and integrity issues we face in cooperating to craft e-discovery expectations.  Still, it’s more parable than parallel.

My home in New Orleans sits at the intersection of two narrow streets built for horse and mule traffic.  It’s held its corner ground since 1881, serving as abattoir, ancestral home of a friend and now, my footprint on the ground in the Big Easy.  New Orleanians are the friendliest folks.  You can strike up a spirited tête-à-tête with anyone since everyone has something to say about food, festivals, Saints football, Mardi Gras, the Sewage and Water Board and the gross ineptitude of local government in its abject failure to deliver streets and sidewalks that don’t swallow you whole or otherwise conspire to kill or maim the populace.

That’s not to say the City does nothing in the way of maintaining infrastructure.  Right now, New Orleans is replacing its low-pressure gas lines with high pressure lines.  Gas is a big deal where everyone eats red beans on Mondays, but it’s also useful for heating and, even now—still—for lighting.  So, every street must have new subterranean lines installed and new risers brought to gas meters.  I knew nothing of this until I awoke to find a crew with an excavator on my property destroying the curbs and antique brick sidewalks I’d lately installed at considerable expense. Continue reading

Apple Card: Heavy Metal

IMG_4773I just got my Apple Card and, while I hardly need another credit card, I thought readers might be curious what the fuss is about. After all, it’s just a credit card, right?

Right, but it has some fancy features that set it apart from the other plastic in your wallet or purse.  First, it’s scarily easy to obtain.  On my iPhone, it took under a minute to be issued the electronic card with a $9,000 spending limit available in Wallet.  That was Tuesday.  Thursday morning, a courier dropped off the physical card packaged in the sleek style of all Apple’s premium products.  The fun began even before it was out of the box!

IMG_4777Although my Apple Pay credit account went live in a minute, as with all physical credit cards, the Apple Card must be activated before use.  For most cards, this requires time online or a phone call where you dial or speak a lot of digits.  With the Apple Card, you just hold the colorful sleeve it comes in against your iPhone and the NFC contactless communication capability embedded in the card does the rest.  

The next surprise is that the card is crafted from laser-etched titanium, giving it a striking heft and rigidity.  Hone the edge of this baby and you’re MacGyver (or Oddjob, hat in hand).  Investing so much in the aesthetics of a credit card may seem silly; but, I confess that the, well, the beauty of the card impressed me.  Is it so wrong that something we touch several times daily be pleasing?

The next surprise is what’s not on the Apple Card versus every other card: There are no numbers.  No card number.  No CID security identifier.  No expiration date.  No signature block.  Just your name, three corporate logos, a chip and a swipe strip.  Here are photos of both sides of my Apple Card, something I’d never post for a conventional card:

IMG_4774If you want to know the card number and CID for the Apple Card, you must retrieve them in Wallet.  That’s a genuine layer of security.  By the same token, heaven help anyone who comes across a neanderthal with a carbon charge slip (anyone remember those?) who tries to rub transfer the card number.

There are some nifty usage management features, but the major marketing hook for the Apple Card is daily cash back on purchases.  How much cash back?  I’m not entirely sure because it varies.  It seems you get three percent back for purchases made from Apple and a handful of other merchants like Walgreens and Uber.  But for the most part, the cash back percentage looks to be two percent if you pay with Apple Pay.  If a merchant isn’t set up for Apple Pay, then it appears you must use the Apple Card as a conventional MasterCard, and get just one percent cash back.  That’s about the same benefit I now get with my AmEx Membership Rewards program with (in my mind) less exposure to a whopping interest charge if I’m ever late with a payment.  Too, the AmEx offers many perks to protect my purchases and travel.  Now and then, those behind-the-scenes benefits have proven really worthwhile.   I wonder whether Apple will stand behinds its card users as reliably as AmEx?

Cash back is a splendid benefit, and beats the pants off cards that don’t offer rewards and perks.  So many cards do offer mileage benefits, club access and other rewards that it’s not easy to know which one is best.  The Apple Card carries no annual fee, making it worth a try, and if you buy a lot of Apple merchandise, that instant three percent back is a no-brainer.  Maybe the Apple Card will become my principal card; maybe not.  But, I’ll tell you one thing:  that titanium card is going to be hell to cut in half should I decide to close the account.

One last thing if it’s not already clear: Only iPhone users need apply.  An Android user might be able to finagle getting the Apple Card, but the real benefits only flow from using Apple Pay.

Cryptographic Hashing: “Exceptionally” Deep in the Weeds

We all need certainty in our lives; we need to trust that two and two is four today and will be tomorrow.  But the more we learn about any subject, the more we’re exposed to the qualifiers and exceptions that belie perfect certainty.  It’s a conundrum for me when someone writes about cryptographic hashing, the magical math that allows an infinite range of numbers to match to a finite complement of digital fingerprints. Trying to simplify matters, well-meaning authors say things about hashing that just aren’t so.  Their mistakes are inconsequential for the most part—what they say is true enough–but it’s also misleading enough to warrant caveats useful in cross-examination.

I’m speaking of the following two assertions:

  1. Hash values are unique; i.e., two different files never share a hash value.
  2. Hash values are irreversible, i.e., you can’t deduce the original message using its hash value.

Both statements are wrong. Continue reading

Cryptographic Hashing: A Deeper Dive

It’s October (already?!?!) and–YIKES–I haven’t posted for two weeks.  I’m tapping away on a primer about e-discovery processing, a topic that’s received scant attention…ever.  One could be forgiven for thinking the legal profession doesn’t care what happens to all that lovely data when it goes off to be processed!  Yet, I know some readers share my passion for ESI and adore delving deeply into the depths of data processing.  So, here are a few paragraphs pulled from my draft addressing the well-worn topic of hashing in e-discovery where I attempt a foolhardy tilt at the competence windmill and seek to explain how hashing works and what those nutty numbers mean.  Be warned, me hearties, there be math ahead!  It’s still a draft, so feel free to push back and all criticism (constructive/destructive/dismissive) warmly welcomed.

My students at the  University of Texas School of Law and the Georgetown E-Discovery Training Academy spend considerable time learning that all ESI is just a bunch of numbers.  They muddle through readings and exercises about Base2 (binary), Base10 (decimal), Base16 (hexadecimal) and Base64; as well as about the difference between single-byte encoding schemes (ASCIII) and double-byte encoding schemes (Unicode).  It may seem like a wonky walk in the weeds; but the time is well spent when the students snap to the crucial connection between numeric encoding and our ability to use math to cull, filter and cluster data.  It’s a necessary precursor to their gaining Proustian “new eyes” for ESI.

Because ESI is just a bunch of numbers, we can use algorithms (mathematical formulas) to distill and compare those numbers.  Every student of electronic discovery learns about cryptographic hash functions and their usefulness as tools to digitally fingerprint files in support of identification, authentication, exclusion and deduplication.  When I teach law students about hashing, I tell them that hash functions are published, standard mathematical algorithms into which we input digital data of arbitrary size and the hash algorithm spits out a bit string (again, just a sequence of numbers) of fixed length called a “hash value.”  Hash values almost exclusively correspond to the digital data fed into the algorithm (termed “the message”) such that the chance of two different messages sharing the same hash value (called a “hash collision”) is exceptionally remote.  But because it’s possible, we can’t say each hash value is truly “unique.”

Using hash algorithms, any volume of data—from the tiniest file to the contents of entire hard drives and beyond—can be almost uniquely expressed as an alphanumeric sequence; in the case of the MD5 hash function, distilled to a value written as 32 hexadecimal characters (0-9 and A-F).  It’s hard to understand until you’ve figured out Base16; but, those 32 characters represent 340 trillion, trillion, trillion different possible values (2128 or 1632). Continue reading

Preserving Android Evidence: Return of the Clones?

When computer forensics was in its infancy, examiners collected evidence from disks by copying their contents byte-for-byte to matching, sterilized disks, creating archival and working copies called “clones.”  Cloning drives was inefficient, expensive and error prone compared to the imaging processes that replaced it.  Yet, disk cloning worked for years, and countless cases were made on forensic evidence preserved by cloning and examined on cloned drives.

Now, cloning may be coming back; not to preserve hard drives but  to collect data from mobile devices backed up online, particularly Android phones.  If I’m right, it will be only a stopgap technique; but, it will also be an effective (if not terribly efficient) conduit by which mobile data preserved online can be collected and analyzed in discovery.

Case in point: Google’s recently expanded offering of cheap-and-easy online backup of Android phones, including SMS and MMS messaging, photos, video, contacts, documents, app data and more.  This is a leap forward for all obliged to place a litigation hold on the contents of Android phones — a process heretofore unreasonably expensive and insufficiently scalable for e-discovery workflows.  There just weren’t good ways to facilitate defensible, custodial-directed preservation of Android phone content.  Instead, you had to take phones away from users and have a technical expert image them one-by-one.

Now, it should be feasible to direct custodians to undertake a simple online preservation process for Android phones having many of the same advantages as the preservation methodology I described for iPhones two years ago.  Simple.  Scalable.  Inexpensive.

But unlike the iOS/iTunes methodology, Android backups live in the cloud.  At first, I anticipate there will be no means to download the complete Android backup to a PC for analysis.  Consequently, when we must process the preserved data for litigation, we may need to first restore the data to a factory-initialized “clean” phone as a means to localize the data for collection.  That’s not to say that Google won’t eventually offer a suitable takeout mechanism; after all, Google Takeout capabilities are second to none.  But, until we can backup Android content in a way that it can be faithfully and intelligibly retrieved directly from Google, examiners may revive the tried-and-true cloning of evidence to clean devices then collecting from the restored device.  Everything old is new again.

It won’t be so bad to use this stopgap approach considering that e-discovery typically entails preservation of far more mobile sources than need ultimately be processed.  So, while backing up many online and cloning a few to clean phones certainly isn’t a perfect solution for Android evidence, it’s good enough and cheap enough that courts should give short shrift to parties claiming that preserving phone evidence is unduly burdensome or complex.  For, as my e-discovery colleagues love to say, “Perfect isn’t the standard.”  I agree.  But, neither is the standard, “we couldn’t be bothered, judge.”

Who Am I If I’m Not That Guy Anymore?

This is a personal post.  I’m baring my soul in hopes that colleagues grappling with doubt and transition will know they are not alone.  I’m at a point in my career—in my life, really—where I’m obliged to ask, “Who am I if I’m not that guy anymore?”

At the ILTA conference last month, a colleague lately risen to rarified heights in e-discovery mentioned she’d heard I’d retired.  It was a dagger to the heart.  I sputtered that, yes, I’d cut back on my insane speaking schedule and was writing less frequently.  I was playing more but I hadn’t taken my shingle down.

That’s true, but what I didn’t say was that ofttimes retirement isn’t a choice.  It’s thrust upon you when you don’t fight it.  And you can’t always fight it.  I’m not retired; I’ve just conducted myself as if I were, and chickens have come home to roost.  Call it a crisis of confidence.  I struggle to feel I’ve got anything to say.  After more than 2,000 confident turns at the podium, I feel like a fraud.  Do you ever feel that, dear reader?  You know, Imposter Syndrome, that feeling that, at any moment, someone might point and say, “you’re not the real deal!”

Let’s put aside the quirks and tics of personality built on shame, insecurity and emotional scarring.  We’ve all got that.  I think there are three main causes behind my gnawing self-doubt.

The self-serving first is that, having focused on electronic evidence and forensic technology for thirty-odd years, new information must compete for brain space and context against a hoard of old knowledge and experience.  I started my professional career when MS-DOS was the dominant operating system and networking meant sharing a daisy wheel printer.  That was before e-mail, before the Web and long before mobile.  It was possible to be a generalist expert in legal technology, and I was.  Back then, you could ask me a question about almost any topic at TechShow and I probably knew the answer.  We all did.  WordPerfect tips?  Sure!  The best TSR tools for lawyers?  I’ve got that.  If you’ve never used WordPerfect or have no clue what “TSR” means, I rest my case.

Expertise demands I acquire new, relevant information and afford it space and ready access among all the once-useful-and-still-occasionally-valuable junk jamming the cerebral storeroom.  Did I mention I’m something of a hoarder?  It’s a godawful mess in there.

“I know too much” sounds like a Trumpian tweet, and it’s a rotten rationale from anyone.  That said, you try keeping track of the forensic artifacts left by Windows XP versus Windows 10, how to crack the latest iOS release and what counts as proof of intentional deprivation under Rule 37(e).  I can’t help feeling that life is simpler and confidence in one’s expertise easier to come by when your only context is “now.”

The second contributor to my crisis of confidence is that I’ve lost my laboratory.  I no longer work enough matters to feel at the top of my game.  It’s not the first time that’s happened.  Back when I was trying lawsuits, I spoke frequently about how to create and use demonstrative evidence.  I had many examples of visuals I’d built and used in my own cases.  They blew folks away.  As my practice shifted from first-chair trial lawyer to tech evangelist preaching the gospel of electronic evidence, I no longer built visuals for cases, and my inventory of salient examples grew stale.  I lost my laboratory.  I stopped making fresh discoveries; so, I stopped teaching demonstrative evidence.

As my engagement in cases has diminished over a few Big Easy years, so, too, has my need to navigate real-world challenges in computer forensics and electronic evidence.  I’ve lost my laboratory again and, without fresh challenges, I’m fresh out of insights.  I feel rusty, like I’m just an academic.

The third factor is harder to articulate, but it’s a sense that the world has moved on.  E-discovery has been “handled.”  Forensics is done more by tools than people.  Discovery service providers have commoditized and packaged the tasks I once thought lawyers would manage.  Civil trials have disappeared, and with them the need to authenticate, offer and challenge electronic evidence.  Lawyers no longer do much of what I was helping them to do–or perhaps I wasn’t helping them enough and they’ve found others easier or cheaper to work with.

I don’t discount the unrelenting passage of time either and my aging out (62 last week).  Many of my repeat clients have changed careers, retired or died.  I did nothing to replace them.  Most of the judges who knew me as a go-to guy for computer forensics and e-discovery are off the bench, either by retirement or blown by political winds having nothing to do with their abilities.

Finally, there is competition.  I had the field to myself for quite a while.  There are more people to go to now.  Are they as steeped in e-discovery and computer forensics as I am? Who knows?  More to the point, who cares?  Lawyers were never especially discriminating when hiring digital forensics and e-discovery experts; less so now.  I greatly benefitted from the fact that there weren’t many experts to choose from and amongst lawyers and judges, I enjoyed a high profile.  I always strove to be the real deal and supply correct answers; but, if I hadn’t, I’m not convinced anyone would have been the wiser.

I have not retired.  I’m still here, and I feel like I have another reinvention in me—a last, best act yet to come.  At the same time, I am not so clouded as to miss the signs auguring otherwise.  Starting over sounds at once exhilarating and exhausting.  I keep wondering: Who am I if I’m not that guy anymore?

I’m fortunate that, even lacking new direction, I enjoy the freedom to move on.   No one depends upon me and I have ample savings.  As my mother used to say, I just need to handle my money “so I have ten cents left to tip the undertaker.”

I won’t cut it that close and I’ve had a great run (not done, not done); but, I’m worried for those who followed me or found their own way into the field and still need to build their nest eggs.  Has it been a hard road?  Are they finding it difficult to make a happy living doing what once was so lucrative and exciting?  I worry that some followed me down a disappointing path.  If you have doubts as I do, please do not despair.  Take comfort in schadenfreude.  You are not alone, and when we all get to the same place, we can have a wonderful party and talk about it.

How Will We Back Up iPhones Without iTunes?

I’ve been on something of an e-discovery crusade for the last few years.  No, not my Quixotic, decade-long, “Native Production is More Utile and Efficient” crusade.  This is the other, later-but-just-as-frustrating crusade I call, “Mobile to the Mainstream.”  It’s a relentless, battleship-banging effort to foster recognition that mobile devices and their online information ecosystems are the most important sources of probative electronic evidence we have today.  Unless privileged, mobile evidence should be routinely preserved and produced in mainstream electronic discovery.  Honestly, shouldn’t that be obvious to even the most casual observer of modern life?

That mobile evidence is routinely ignored in civil matters by counsel, government and industry is troubling, and defended–if defended at all–by pointing to the alleged burden and technical “forensic-ness” of marshalling phone content.  I’ve countered with articles showing the ease with which iPhone content can be preserved, extracted and searched–at little to no cost and, crucially, without separating custodians from their devices.  The “trick” for Apple iOS devices was exploiting iTunes, and it was a good trick because iTunes is free, easy to use and supported by Apple on both Mac and Windows platforms around the world.

Then, Apple lately announced it was doing away with iTunes.  ARRRRGGHHH! 😱😖😭

But, no worries, the iPhone backup methodology I’ve put forward is still going to work after Apple releases the new Catalina operating system and cleaves iTunes into dedicated apps for music, podcasts and TV.  In fact, preserving iPhones may be easier for Mac users as Apple is shifting the backup tool into the Finder app.  You’ll do exactly the same thing I wrote about but Mac users with Catalina won’t even need to use iTunes to preserve mobile evidence.  It’ll be built in.

From what I understand, Windows users will still have an app for the task, probably iTunes for the foreseeable future.  So, I’m relieved to know that the “demise” of iTunes won’t be a barrier to simple, scalable preservation of iPhone content.  Things may even get a little easier.

ILTACON 2019 at the Happiest Place on Earth

I’ve spoken at nearly all the legal technology conferences that have come and gone over the last thirty years.  Some, like LegalWorks and LegalTech West, are extinct (suggesting there is no appetite for legal technology west of Las Vegas).  Others, like ABA TechShow and LegalTech New York soldier on, shadows of what they once were, annually rearranging well-worn deck chairs.  They’re still frantic and fun to attend but TechShow has devolved to a mostly regional attendance and LegalTech’s influence has waned such that the most interesting meetings occur outside the Hilton.  Lately, the dynamic and influential meetups are those dedicated to a single product and its ecosystem (think Relativity Fest or ClioCon).  A stalwart exception, and an event I always try to cover, is ILTACON, the annual confab of the International Legal Technology Association. ILTACON remains vibrant and relevant, having found its compass after several rocky years of internal squabbling.

I just returned from Orlando and five days of impressive ILTACON content at the Swan and Dolphin hotels near EPCOT.  I talked about discovery tools and whether they’ve kept pace with the sea changes in electronic evidence.  My take: lawyers are behind the curve and tool vendors aren’t doing nearly enough to bridge the gap.

I’m a passionate student of architecture, with no particular skills, but boundless enthusiasm.  Thus, it was pleasing to experience the Swan and Dolphin Hotels, icons of post-modernism and two of the late architect Michael Graves’ most successful efforts.  Postmodernism was to last-century architecture what the leisure suit was to 1970’s fashion.  PoMo is no mo’, and none need mourn its passing.  Audacious in 1990, the Swan and Dolphin remain a good fit for the fever dream of Walt Disney World.  Outside of Orlando and Las Vegas, the absurd scale, palette and garish embellishment would have long lost its luster; yet in the House of the Mouse (and dead-flat Orlando), they still work.  Aesthetically, that is, not functionally.  The interiors are awful and the sprawl exhausting.  Home to ILTACON’s evening events, the dark, charmless Pacific Ballroom, should be renamed the Hangar of Terror (photo below.  Note the free throw competition hoop and backboard with tables beyond. What could POSSIBLY go wrong?).

 

Continue reading