Texas CoA Addresses Electronic Community Property and Invasion of Privacy

August 5, 2016

Reference:

Miller v. Talley Dunn Gallery LLC, 2016 Tex. App. LEXIS 2280

(Tex. App. – Dallas March 3, 2016) (mem. opinion)

(Cause No. 05-15-00444-CV)

Relevant Documents:

Memorandum Opinion:  March 3, 2016, Cause No. 05-15-00444-CV

Texas Penal Code 33

In this case, part of the original trial court’s decision determined that Talley Dunn and the Tally Dunn Gallery LLC had “established a probable right to recover on their claims under the HACA. [Harmful Access to Computers Act]”  [March 3, 2016, Cause No. 05-15-00444-CV, pg. 19]

In his appeal, Bradley B. Miller argues that, while he admits that he took screenshots of information contained on the phone, the screenshots do not qualify as “access” and that he had effective consent to do so because the cell phone was community property.  [March 3, 2016, Cause No. 05-15-00444-CV, pg. 21-22]

Texas Penal Code § 33.01(1) defines access as:

“to approach, instruct, communicate with, store data in, retrieve or intercept data from, alter data or computer software in, or otherwise make use of any resource of a computer, computer network, computer program, or computer system.”

Neither party disputes that a cell phone is a computer, and the appellate court found that in order to take the screen shots Miller necessarily HAD to access the the computing device, within the definition of the penal code.  [March 3, 2016, Cause No. 05-15-00444-CV, pg. 22]

Regarding his argument that he had effective consent to access the cell phone because it was community property, the CoA relied upon the penal code definition of ‘owner’ as:

“a person who:

(A) has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor;

(B) has the right to restrict access to the property; or

(C) is the licensee of data or computer software.”

Dunn used the cell phone on a daily basis, had the right to place a password on it (and had), and the court determined Dunn had a ‘greater right to possession of the cell phone’.[March 3, 2016, Cause No. 05-15-00444-CV, pg. 23]  Further, the CoA notes earlier in the opinion that “[N]othing in the Texas Constitution or our common law suggests that the right of privacy is limited to unmarried individuals.”  [March 3, 2016, Cause No. 05-15-00444-CV, pg. 20]

Interestingly, the court does not address the multiple licenses that are part of the software and operating system that users have to acknowledge and accept to use a modern cell phone.  I would expect that will start coming up as another layer to the definition of ‘owner’, though.

Accordingly, the CoA concludes that “the trial court did not abuse its discretion by determining appellees established a probable right to recover on their claims under the HACA.”  [March 3, 2016, Cause No. 05-15-00444-CV, pg. 23]

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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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Open Source Intelligence (OSI) and Your Case

April 2, 2014

Open Source Intelligence (OSI or OSINT) is intelligence collected from sources that are available publicly.  Much of the information fed to the internet by users, collected by advertisers, or otherwise left behind during a person’s interaction with electronic systems (or with retailers and advertisers that store such information electronically and the resell it) can be identified through “deep-“, or “dark-“ web research.  OSI is important enough of a research methodology that many law enforcement agencies, especially Federal, have dedicated resources to OSINT analysis and gathering. 

In civil litigation OSI is an invaluable resource for:

  • Research of retained and opposing experts
  • Information regarding opposing attorneys
  • Witness and litigant information
  • Uncovering other emails, social site accounts, properties, activities, and repositories of information not disclosed

Consider a recent case that I was involved with: The opposing party had disclosed certain online accounts that contained relevant information regarding their corporate history, communications via web mail, and travel.  An OSI search revealed two alternate web mail addresses, as well as a connection with a competing firm, travel information (previously undisclosed), and some “known associates” that had information relevant to the case.  Metadata analysis of documents and photos contained on the newly discovered sites yielded even more information.  None of this information was contained on the hard drive submitted for inspection.

OSI, on the web, is broken down into two main categories: Direct indexed information, and Dark web (or Deep web) information.

Direct indexed information is the category most familiar to practically anyone that uses the web.  It is information that has been picked up and indexed by a search engine and, with the correct search techniques, can be narrowed down to particular people, places and things.  Indexed information typically ends up on the web through three different paths:

Deliberate – Deliberate information is information that is on the web because of the direct interaction of an entity with a web resource.  This could be information that is publicly available because of social sites, website registration, or signing on to public newsgroups and forums. 

Accidental (Through fault of the information Owner) – Often times information is deliberately provided, but the provider of the information didn’t realize that the information would be publicly searchable.  Facebook is a perfect example of where, by not understanding ALL the privacy implications of use, users (or their friends) often provide way more details, photos, or location information than is intended, desirable, or realized.

Accidental (Through fault of the information Custodian) – Very large data breaches are far too common these days.  The reality is that they have been very common for years and years, but focus has only recently been turned towards the size, and frequency of breaches.  Aside from breaches, however, “information leakage” is not at all uncommon.  Information leakage is where a website or internet resource unintentionally will provide more information than the user, or the owner, realize. There are teams of people, advertisers, and intelligence gathering entities that  look for information leak and harvest the results.

Dark (or Deep) Web information sounds very “techie” and mysterious, but in reality simply describes the large portions of the web that contain information that is not indexed by search engines.  Typically these are databases of information that are accessible from a website, registration information, attendance and membership databases and information of that nature.

The challenge with OSI is to compile information both from direct indexed resources and dark web resources, and then correlate and narrow the information so that it accurate to the particular entity that is being researched.  A thorough manual search can be performed using the “cheat sheets” provided with this book.  The challenge is that aggregation, correlation and verification can take many hours.  There are tools available to an attorney that speed up the process.  LexisNexis offers access to a static database through the Accurint tool (http://www.Accurint.com), and Westlaw (http://www.Westlaw.com) also provides static database information as well.  There are any number of smaller sites that offer various degrees of information through static databases. 

Static information can quickly become inaccurate or stale, and there are tools that fill the niche for automated research.  Vidoc Razor maintains such a tool (If you are an attorney, you can request a login at: http://www.vidocrazor.com/RSInfo.php) that actively mines “live” social information, media and publications, photos, as well as location and known relations and associate information.  The information is then aggregated, correlated, and a baseline validity check performed.  The information is available for filtering and refining from a single point, and custom reports can be generated.

Whether using manual techniques, static databases, or automated approaches, the nature of OSI is important to keep firmly in mind:  it is fluid.  The information “lives” and changes as people live and change.  It is also contradictory; some OSI is incredibly volatile and can “evaporate” without warning, while other OSI is incredibly persistent, and will stay available through harvesting techniques even when the information owner is actively trying to remove it.  Any information derived from any of the harvesting techniques discussed must be verified before action is taken on it.

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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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