I give dozens of talks each years on electronic evidence where I discuss geolocation data and its transformative potential as evidence in criminal prosecutions and civil litigation.  Smart phones constantly track our movements using gyroscopes, accelerometers, global positioning features, geolocation apps, cell tower triangulation and three independent radio systems. Our steps are tallied, altitudes logged, and, for many, vital signs are monitored, too.  We are earthbound astronauts, instrumented and coupled to sensors and telemetry as thoroughly as any who journey into space.

This doesn’t fully resonate with audiences until I guide them through their own phones, showing the level of detail with which movements are tracked.  Some listeners boast that they’ve set their privacy settings to block geolocation.  They’re the ones most surprised to learn that, although they can disable their ability to see their own geolocation history and stop geolocation data from being shared with apps, they can’t disable geolocation broadcasting and still have a functioning phone.  Here’s the bottom line: if a phone can operate as a phone, it must broadcast its geolocation coordinates with a precision of ten meters (~30 feet) or better.  U.S. law requires it.

When I broach geolocation data and see that look of “we already know this” creep across faces, that’s when I ask for a show of hands of how many in the audience use iPhones.  Nearly every hand shoots up.  I then invite them to drill down in their phone’s Settings with me to the Significant Locations logs.  Surprisingly, most have never done this before and are shocked, even frightened, by the richness of detail in the data.

To try it on your iPhone,navigate through Settings>Privacy>Location Service>System Services> Significant Locations.  Unless you’ve disabled your ability to see geolocation data, you’ll arrive at the phone’s History list setting out locales visited, and the number of sites gone to within those locales.

But, wait!  There’s more! Continue reading →

Two-and-a-half years ago, I concluded a post with this bluster:

“Listen, Amazon, Apple, Microsoft and all the other companies collecting vast volumes of our data through intelligent agents, apps and social networking sites, you must afford us a ready means to see and repatriate our data.  It’s not enough to let us grab snatches via an unwieldy item-by-item interface.  We have legal duties to meet, and if you wish to be partners in our digital lives, you must afford us reasonable means by which we can comply with the law when we anticipate litigation or respond to discovery. You owe us that.  Alexa, are you listening?”

Amazon hasn’t listened; but, Apple lately gave users the ability to download our data.  Credit for this awakening goes to the European Union’s Global Data Protection Regulation (GDPR) that went into effect on May 25.

Data takeout capabilities are essential to protecting civil liberties and meeting legal duties.  Google’s given users a simple, effective means to repatriate data (including Gmail and calendar data) for five years, although search histories have only been supplied for two.  Twitter’s supported robust data takeout for five years; and eight years ago, Facebook became the first big social media site to offer its users the ability to download contributed content.

Apple is late to the party but it didn’t come empty-handed.  The Apple takeout is extensive and can be huge.  My download comprised 63GB in 26 compressed Zip archive files.  It took Apple five days to assemble the data and make it available for download; then, I had to download each file, one-by-one.  There’s no way to download them all, leaving the distinct impression that Apple doesn’t want takeout to be too easy.  In fairness, had I opted to have Apple deliver my data in 25GB chunks (the largest chunk option) instead of the 5GB file limit I specified, it would have been easier.

In my case, almost all the volume were photos replicated in iCloud.  Notably absent was my messaging, which Apple can’t archive and thus can only be obtained from the iPhone or a backup of same (see my post Mobile to the Mainstream). Continue reading →

Click f/ PDF

Once you’ve preserved the contents of a mobile device, how do you extract responsive content in forms that are searchable and amenable to review?  Most information items on mobile devices aren’t “documents” that can be printed to a static format for review.  Instead, much mobile content is fielded data that must retain a measure of structural integrity for intelligibility.  This article looks at simple, low-cost approaches to getting relevant and responsive mobile data into a standard e-discovery review workflow, and offers a Mobile Evidence Scorecard designed to start a dialogue leading to a consensus about what forms of mobile content should be routinely collected and reviewed in e-discovery, without the need for digital  forensic examination. Continue reading →

Two years ago, I blogged about the challenge of seeking to preserve records of interactions with the Amazon Echo/Alexa family of devices and applications.  I concluded:

“Listen, Amazon, Apple, Microsoft and all the other companies collecting vast volumes of our data through intelligent agents, apps and social networking sites, you must afford us a ready means to see and repatriate our data.  It’s not enough to let us grab snatches via an unwieldy item-by-item interface.  We have legal duties to meet, and if you wish to be partners in our digital lives, you must afford us reasonable means by which we can comply with the law when we anticipate litigation or respond to discovery. “

In a testament to my thought leadership, nothing whatsoever has happened since my call-to-arms in terms of the ability to preserve Alexa app history data.  It’s as bad as it was two years ago and arguably worse because Echo products have grown so popular and the Alexa interface has been integrated into so many devices that the problem is bigger now by leaps and bounds.

Don’t get me wrong, I am Alexa’s biggest fan (and adore her sisters, “Amazon” and “Computer,” so-called for the alternate “wake words” I use to trigger voice communication to Amazon’s servers from other Echo devices).  If anything, Craig the Consumer is happier now with the Echo ecosystem than two years ago.  Wearing my user hat, Alexa’s a peach (and, yes, I am perfectly comfortable with her from a privacy point of view).  Wearing my e-discovery propeller beanie, Alexa is a pain in the butt.  She’s a data gold digger who cooks the books to make it supremely difficult to account for what she’s taken. Continue reading →

The Latin maxim Docendo Discimus means “by teaching, we learn.”  So true, because absent my need to stay up-to-date to teach, it’s easy to fall behind.  I teach various places, but of longest standing at the University of Texas School of Law, my alma mater.  My subject is E-Discovery and Digital Evidence, a three-credit, 14-week course.  In my course, information technology enjoys equal status with case law and procedure.  Half the semester is dedicated to mastering the “e” in e-discovery: the foundations of modern information storage and retrieval.  That balance is unique among law school courses.  I don’t elevate information technology because I happen to know how to teach it; I do it because I think it’s what the students need most and don’t get.  It’s certainly what lawyers need most and don’t get.

Why?

Surprisingly, that’s a contentious question.  The arguments against teaching the technology side of e-discovery and digital evidence range from “it’s not law” to “lawyers hire people for the tech stuff, so why bother?”

I think the explanation for the marginalization of information technology in e-discovery classes is simpler: lawyers teaching law school classes have a limited ability to teach technology.  My guess is that if the teachers knew the technology as well as they know the law, there would be more balance in the curriculum.

The limits of instructors hobbles the curriculum of e-discovery, which should spring from the needs of the students.  We should gear our syllabi to what must be learned rather than what can be taught.  First, let’s teach the teachers.

That won’t be easy.  The level of interest is low, and who wants to draw the circle of competence to leave themselves outside the circle?  Too, there are virtually no instructional channels or materials.  No formal incentives.  No funding.  Many invested in the status quo ante.  And all that aside, there’s a dearth of experienced instructors.  We are fuc… challenged.

Continue reading →

This article makes the case for routine, scalable preservation of potentially-relevant iPhone and iPad data by requiring custodians back up their devices using iTunes (a free Apple program that runs on PCs and Macs), then compress the backup for in situ preservation or collection.

The Need
Most of you will read this on your cell phone.  If not, it’s a virtual certainty that your cell phone is nearby. Few of us separate from our mobile devices for more than minutes a day.   On average, cell users spend four hours a day looking at that little screen.  On average.  If your usage is much less, someone else’s is much more.

It took 30 years for e-mail to displace paper as our primary target in discovery.  It’s taken barely 10 for mobile data, especially texts, to unseat e-mail as the Holy Grail of probative electronic evidence.  Mobile is where evidence lives now; yet in most cases, mobile data remains “off the table” in discovery. It’s infrequently preserved, searched or produced.

No one can say that mobile data isn’t likely to be relevant, unique and material.  Today, the most candid communications aren’t e-mail, they’re text messages.  Mobile devices are our principal conduit to online information, eclipsing use of laptops and desktops.  Texts and app data reside primarily and exclusively on mobile devices.

No one can say that mobile data isn’t reasonably accessible.  We use phones continuously, for everything from games to gossip to geolocation.  Texts are durable (the default setting on an iPhone is to keep texts “Forever”).  Mobile content easily replicates as data backed up and synched to laptops, desktops and online repositories like iCloud.  The mobile preservation burden pales compared to that we take for granted in the preservation of potentially-relevant ESI on servers and personal computers.

Modest Burden.  That’s what this article is about.  My goal is to demonstrate that the preservation burden is minimal when it comes to preserving the most common and relevant mobile data.  I’ll go so far as to say that the burden of preserving mobile device content, even at an enterprise scale, is less than that of preserving a comparable volume of data on laptop or desktop computers.  Too, the workflows are as defensible and auditable as any we accept as reasonable in meeting other ESI preservation duties. Continue reading →

Two characteristics that distinguish successful trial lawyers are preparation and strategy.

Strategy is more than simply doing what the rules require and the law allows.  Strategy requires we explore our opponent’s fears, goals and pain points … and our own.  Is it just about the money?  Can we deflect, distract or, deplete the other side’s attention, energy or resources?  How can they save face while we get what we want?

In a world where less than one-in-one-hundred cases are tried, discovery strategy, particularly e-discovery strategy, is more often vital than trial strategy.  Yet, strategic use of e-discovery garners little attention, perhaps because the fundamentals demand so much focus, there’s little room for flourishes.  As lawyers, we tend to cleave to one way of approaching e-discovery and distrust any way not our own.  If you only know one way of doing things, how do act strategically?

Strategic discovery is the domain of those who’ve mastered the tools, techniques and nuances of efficient, effective discovery.  That level of engagement, facility and flexibility is rare; but, you can be still be more strategic in e-discovery even if you’ve got a lot to learn.

Recently, I had to dash off a dozen e-discovery strategies for requesting and producing parties.  I’m not completely happy with my lists, but I think I nailed a few of the essentials for each side.

A Dozen E-Discovery Strategies for Requesting and Producing Parties

(from Ball, Competency and Strategy in E-Discovery (2017))

Continue reading →