ABA Issues Opinion on Social Media Ethics

May 7, 2014

The most common question in cases involving Open Source Intelligence (OSI) to support an electronic investigation, is: “To what extent may an attorney ethically use social media during case investigation and discovery?”

The question is not at all surprising.  The extent to which we can develop and use information from social sites, and other types of OSI, has a really high “creep factor”.  My answer has always been:  “If a person has given up information and made it publicly available to anyone with a browser and knowledge of where to look, then what’s the question?”.

Two weeks ago, the ABA agreed… mostly.  In the ABA’s “Formal Opinion 466”, issued on 4/24/2014, the ABA states, in part:

A lawyer may review a juror’s or potential juror’s Internet presence, which may include postings by the juror or potential juror in advance of and during a trial.

In summarizing, the opinion states:

In sum, a lawyer may passively review a juror’s public presence on the Internet, but may not communicate with a juror. Requesting access to a private area on a juror’s ESM is communication within this framework.
The fact that a juror or a potential juror may become aware that the lawyer is reviewing his Internet presence when an ESM network setting notifies the juror of such review does not constitute a communication from the lawyer in violation of Rule 3.5(b).

While this opinion is specific to jurors, might it also apply to witnesses, attorneys, and other parties to a case?  I would think so.

Link to the ABA Journal’s Final Opinion PDF

Deepweb and Google Cheatsheets Updated

If you are interested in researching OSI (Open Source Intelligence), and are an attorney, you will want to request a login to Vidoc Razor’s RazorSuite.  The RazorSuite includes a connector to conduct your own OSI searches in a fraction of the time, and with more information, than manual techniques.  You can request a login here.

If you prefer to do your own manual work, I have been maintaining two “Effective Internet Search” cheat sheets since 2009. The cheat sheets cover the best sites for developing information manually, as well as how to use Google’s advanced features effectively when performing online searches of people, places, and companies.

Link to the updated DeepWeb Cheat Sheet

Link to the updated Google Search Cheat Sheet

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Weekly Highlights: April 21, 2014

April 22, 2014

FRCP Rule 37(e) (Preservation) is Changing

On April 11th, the Civil Rules Advisory Committee approved a  revision to Rule 37(e) (the section covers failure to preserve Electronically Stored Information (ESI)).  The new draft reads, as follows:

“(e) FAILURE TO PRESERVE ELECTRONICALLY STORED INFORMATION. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve the information, and the information cannot be restored or replaced through additional discovery, the court may:

(1) Upon finding of prejudice to another party from loss of the information, order measures no greater than necessary to cure the prejudice;

(2) Only upon a finding that the party acted with the intent to deprive another party of the information’s use in the litigation,

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.”

You’ll note that the existing Rule 37e language is nowhere to be found:

“Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.”

You can read the proposed changes on the US Courts site, here.

 Popular Legal Websites Affected by the Heartbleed Flaw

Robert Ambrogi’s blog, “LawSites” had a post listing sites, popular with attorneys, that were affected by Heartbleed.  You can view that site here.  If you don’t know what “Heartbleed” is, you will need to.  You can view the Inforensics Blog post, to catch up.

Box.com, and Dropbox.com were, according to Ambrogi’s research, affected by the flaw.  If you use these sites, it is a good time to review and change passwords.  Also, read the Inforensics Blog post on Password Re-use.

 

Changing Metadata Leads to Sanctions

You may have missed the following case.  Remember: It doesn’t take an expert to alter data, and attempt obfuscation, just some software from your local Best-Buy:

T & E Inc. v. Faulkner, 2014 WL 550596 (N.D. Tex. Feb. 12, 2014)

In this case, sanctions were sought for alleged manipulation of metadata, in an attempt to hide the existence of a computer that had not been produced.  A successful motion to compel the defendant to produce computers gave a specific timeline for production.  A forensic expert found evidence that, during the time given to produce, the opposing party created a new user profile on a computer, copied data to it, and used a commercial software to alter times on files in order to make the system appear as though it had been in use, in an effort to hide the “real” computer that had been in use.  Spoliation sanctions were awarded in the form of an adverse inference, and $27,000 dollars.

 

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Quick Tips For Preserving Social Media

June 6, 2011

There is no arguing that social media sites are a boon for information related to a case, and not just for Family law, but also for corporate litigation as well.  We have had tremendous success with using social sites to tie component pieces of  a hard drive or cell phone investigation together.

The proliferation of social websites like Facebook can create discovery issues, though: How do you properly preserve a social site?  How do you deal with the opposing side arguing that the request to preserve is “overly burdensome”?

In this article I will walk you through three of the most popular social media sites and some techniques to preserve them easily.

1: Facebook (www.FaceBook.com):  Facebook is probably the easiest site to preserve.  The user can simply go to “Account Settings”, scroll down to “Download Your Information”, and click on “learn more”.  From the Facebook description:

“This tool lets you download a copy of your information, including your photos and videos, posts on your Wall, all of your messages, your friend list and other content you have shared on your profile. Within this zip file you will have access to your data in a simple, browseable manner.”

Once the user clicks “Download”, FaceBook will aggregate the information and email a link to the download.  Depending on how much information is there, this can take several minutes or even hours.

2: LinkedIn (www.LinkedIN.com):  LinkedIN is a site geared more towards a professional profile than Facebook.  We have been successful in using it to uncover additional email addresses, business documents, associations and affiliations primarily in Corporate cases, but it has factored into family law cases before.

The good news is that, while the Facebook preservation method is only useful if you are the specific user, LinkedIN can be documented for the profile information of other users.  The bad news is that it is slightly more complex than Facebook to preserve (but not much more!).

The easiest way to archive a LinkedIN account is to already have one yourself, or to create one.  NOTE: If the person you are archiving has LinkedIN’s upgraded service, or has agreed to let others see when they view a profile, they will be able to see that you viewed their profile.  I’m not going to encourage you to break the Terms of Service by creating an archive account, but that is one way to get around this.

Next, you will want to navigate to Profile-> Profile Organizer.  This is actually a paid service offered by LinkedIN, but usually it has a free 30-day trial.  More importantly, the free trial does not require a credit card.

Once you sign up for the Profile Organizer, you will be able to search for specific individuals, companies, etc.  When you find a profile you can save it to your organizer, archive it, and print it to a PDF.

3: Twitter (www.Twitter.com): Unlike the others, Twitter doesn’t have an actual built-in archiving functionality.  Twitter DOES have a great advanced search function that you can access at: search.twitter.com

Once on the Twitter search site, look for the “Advanced Search” link.  This will allow you to drill into searches by user, dates, topics, specific words or phrases, locations, etc.
Once you have search results, you can print to PDF, save the list, or use the nifty RSS link in the upper right called “Feed for this query”.

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Eight Strategies To Control Information Forensic Costs

April 12, 2011

I’m often told that the biggest barrier to introducing information forensics to a potential case is the cost of doing so, and I believe it.  It is hard to explain to a client that they may expend resources with no return on the expenditure, and yet effective use of information forensics can be a valuable part of case strategy.  Here are eight strategies to effectively control information forensic cost:

  1. Prioritize Systems. In cases where there are multiple computer systems, hard drives or electronic devices involved, try to identify which ones are more likely to contain key evidence or facts in the case.  Your expert should be willing and able to help you do this, based on the facts of the case and the role of the devices involved.
  2. Image and Hold. Perform forensic imaging of the systems and devices involved to preserve them, but unless there are other factors involved you may not need to do analysis on ALL the systems at once.  Start with the high priority systems, and then see if there is likely to be value on the other systems or devices involved.  “Image and Hold” can also be an effective early strategy for a single computing device as well.
  3. Be Selective. We are often approached with multiple cell phones and hard drives.  One of the first questions I ask is if the cell phones were potentially backed up on one of the computer systems.  If so, then we can often process the backup (or “synch”) of the cell phones just as though we had the cell phone itself.  This helps to prevent duplicating cost.
  4. Evaluate Before Analyze. Full disclosure: This is a self-serving statement, in that Vidoc Razor runs a flat-rate evaluation service, but that doesn’t make it any less true.  Your expert must be able to provide an evaluation of the computer systems involved to identify which devices are useful to a case, versus ones that are redundant or don’t contain case useful information.  Make sure that the evaluation is  in context with the case, and not a simple cookie-cutter print-out of log files.
  5. Look for Flat-Rate Services. I have heard many complaints of forensic costs that run wild because of hourly rates.  It isn’t hard for a forensic service to provide cost-effective, flat rates that still provide high-quality results.  Your expert should be interested in looking for a long-range relationship as part of your legal arsenal, rather than getting rich off of a single big case.
  6. Understand the Differences Between Data, Information, and Intelligence. This seems like semantics, but it really isn’t.  Data is a stream of un-evaluated, un-interpreted symbols.  Information is what data becomes once it is useful (in context).  Intelligence is what information becomes once it becomes fact.  Once you stop thinking about “data forensics” and start utilizing “information forensics” you can find all three in a variety of places beyond the hard drive, or as a supplement to the evaluation or analysis performed on a hard drive or cell phone.
  7. Know Your End-Game. It is easy to get caught in the flood of information that can open up in the effective use of information forensics.  It is equally easy to chase down information that doesn’t necessarily support your overall case strategy.  For each new  tributary that opens up to you, ask yourself if it is actually something that supports your end-strategy, or potentially alters it.  If not, then why spend resources to chase it?
  8. Take a Deep Breath. If I had a nickel for every time I have heard the phrase “I am completely computer illiterate”, I would be living on easy street.  In a Yogi Berra-esque way: “This ain’t rocket surgery.”  For some reason the mere exposure to electronic investigation causes people to shut down.  While information forensics can be very technical, I promise you that the average attorney has dealt with much more complicated issues.  Take a deep breath and enjoy the new strategies and brand new streams of information that open up to you and your client and augment your ability to argue your cases.

Next Post:  Effective Information Forensic Strategy

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Qualifying An Expert Using Open Source Information

November 2, 2010

“Knowledge is of two kinds. We know a subject ourselves, or we know where we can find information upon it.” – Samuel Johnson

Those that have heard me speak on electronic forensics know well the distinction that I make between data forensics and information forensics (“inforensics“).  The distinction is very clear:  data is a stream of unevaluated symbols, and information is the point at which the symbols become useful.

The inforensics approach also encompasses the use of relevant information and evidence that extends beyond the hard drive and can be used even when there is no hard drive or direct electronic platform available.

Take for example researching experts.  Using “open source information (OSI)”, sometimes referred to as “Publicly Sourced Information”, one can research a retained or opposing expert very effectively.

What Are Your Sources?

Google is a great place to start, and for purposes of this post we will focus primarily on Google – although the attachments to this post include other resources that you may explore as well.  There is definitely “life after Google” and you should explore it.  Possible research sources can include:

  • Newsgroups
  • Social networking sites (Facebook, Myspace, LinkedIN, etc.)
  • Blogs
  • Online news resources
  • Registration databases (websites, public records, etc.)

What Types of Information Are Out There?

In general you will be working with two main categories of information on the web:

  • Indexed Information.  This is information that has been picked up, searched and indexed by a search engine.
  • “Deep Web” or “Dark Web”.  This sounds mysterious, but really just means information that is usually in a database and has not been indexed by a search engine.  The location of a particular database can be found using a search engine, but the information contained within the database is usually accessed directly via the site that provides it, not a search engine.

Registration databases tend to fall into the”Deep Web” category, whereas many newsgroups can be searched directly through Google or a search engine.

What to Look For?

You might start with making a list of information you want to know about your expert, or an opposing expert:

  • Areas that indicate bias.
  • Published works.
  • Attributed quotes.
  • Other activities.
  • Work history.
  • Multiple versions of a CV.

These are just some examples.

Where Do I Start?

Start with the “Google Cheatsheet” PDF document that I have linked to this post.  For life beyond Google you can look at the “Deep Web Cheatsheet” that is attached.

Google Cheatsheet rev. 201011

DeepWeb Cheatsheet rev 201011

Last Minute Tips

If you are not already comfortable doing so, learn how to use “Browser Tabs” in your internet browser.  This will help you organize information you find and will allow you to conduct multiple-threaded searches.

Good luck!  As always, if you are an attorney or member of law enforcement and want to contact me to ask questions feel free to do so.  This post is actually a distillation of a 1.5 hour CLE training, and an 8 hour training that has been done for TCLEOSE credits.  If your law firm, legal association, or branch of LE is interested in the full training, I am happy to help.

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