Monday, September 14, 2020
Digital Forensics: Adding Value To Title IX (Title 9) Cases
September 14, 2020
Digital Forensics: Adding Value To Title IX (Title 9) Cases
For the past several years, there have been multiple business articles stating how the private sector digital forensics industry will be growing exponentially in the near future. This is partially due to increased data breaches, increased civil litigation filings where data is at issue and increased electronically-facilitated criminal activity. One area where we are seeing a decided uptick in the need for forensic data acquisition, analysis, consulting & expert testimony services is Title IX cases, which occur largely on college campuses. According to Harvard University:
“Title IX is a US federal civil rights law passed as part of the Education Amendments of 1972. This law protects people from discrimination based on sex in education programs or activities that receive Federal financial assistance.
Title IX states that:
‘No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.’”
Since it’s initial passing, Title IX has grown to include claims involving sexual harassment, discrimination and sexual violence. The odd procedural issues with Title IX claims are that they may be made personally or anonymously, may or may not lead to a formal administrative charge against the accused and the accused may or may not even know the claim was ever made about them until long after the claim has been filed and/or adjudicated. This can lead to problematic issues surrounding due process, rights to face one’s accuser and false claims made against the accused. Further, if the accused graduates college and submits to any type of background investigation for employment, the presence of the claim on their formal educational record will likely cause expulsion from the hiring process. Because of all of these controversial factors, recent years have also seen Title IX civil litigation blossoming into another area where justice may be sought by either the accuser or the accused.
Digital Forensics In Title IX Cases
Because Title IX claims deal mainly with college-aged claimants and accused persons, who undoubtedly use their mobile devices to a high level, the likelihood of having data in some form that may show extensive contact between the parties and serve to add value to the case is fairly high. Whether the data is stored on a mobile device via chat or texting apps, pictures, call history, voice recordings, web history and/or email, the appropriate forensic acquisition of this data is of paramount importance to identifying the circumstances surrounding the alleged event. Title IX cases are legal proceedings, however there may be no law enforcement investigation and the proceedings may not have a judge or attorneys present, which can put one or both sides of the matter at a procedural disadvantage. However, the accusation and disposition of the proceedings have a long-lasting effect on the accused and/or the claimant. Because the outcomes of these proceedings are essentially permanent and potentially impactful for a lifetime, the use of screen shots or tools with which the mobile device’s data can be easily altered prior to presentation to document contact between the parties involved is highly discouraged, as discussed in our recent article here.
Another area that should not be overlooked in Title IX claims is data that may reside on one or both party’s computer systems. While it’s a digital evolutionary fact that much of modern class and professional work can be conducted on mobile devices, many mobile devices are still not ideal for composition of long-form text such as research papers, lengthy emails and files or documents with larger data sets. Email exchanges between the accused and the claimant as well as synced text message contact (iMessage, WhatsApp, etc.) over desktop applications could also be vital evidence in the Title IX claim, some of which may not be present or available via forensic data acquisition from the mobile device. Additionally, it’s very likely that the mobile device in use by either party has been charged and/or synced by the computer system at some point in the recent past. Depending on a number of different parameters, this may lead to a backup of the mobile device data being created, which can then be acquired, analyzed as if it were the mobile device itself and used as evidence in Title IX proceedings. While the Rules of Evidence or Civil Procedure may not be an overwhelming consideration in Title IX cases, the potential that evidence may be used in later formal courtroom litigation dictates that the evidence used in the administrative proceedings should be acquired and analyzed in a forensically sound manner.
Title IX cases present a host of challenges for virtually all parties involved. As with all formal proceedings, the truth of the matter can ultimately boil down to the evidence, and particularly the strength of that evidence. Because so much can be at stake with regard to the future of both the claimant and the accused, the appropriate documentation and forensic acquisition and presentation of data in the case is vital to proving or disproving the claim. People increasingly live their lives on their devices, whether it be a mobile device (phone, tablet) or a computer or a combination within the various data storage ecosystem. The good (and sometimes bad) thing about this ubiquitous connection to electronic devices is that they document nearly everything for us. This becomes evidence in many legal and administrative proceedings, but the “devil in the details” can ultimately rest on the proper handling, acquisition, analysis and presentation of the data involved in the case. When someone’s future is at stake, why risk presenting bad, unverifiable or lacking evidence?
Patrick J. Siewert
Professional Digital Forensic Consulting, LLC
Virginia DCJS #11-14869
Based in Richmond, Virginia
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