October 24,
2016
Electronically Stored Information (ESI) in High-Profile Cases
If it seems
like the frequency of high-profile and attention-grabbing cases involving
Electronically Stored Information (ESI) and digital evidence in the media are
on the increase, you’re 100% correct!
ESI is ubiquitous – on our computers, on our phones, on our tablets and
even in our watches and cars. ESI can
range from standard email to text messages to any other type of messaging
service and from pictures to audio files to video and even the GPS data on your
car’s navigation system. It is, quite
literally, everywhere! So when an
incident involving email or text messages arises, we naturally gravitate to the
salacious nature of the ESI and the information stored on digital devices. After all, we all use them! In this article, we’ll explore some of the
higher profile cases involving ESI and digital evidence and what considerations
examiners should take in cases like these.
First up, a "no-brainer"…
The FBI Investigation
of Secretary Hillary Clinton
Unless you’ve
been living under a rock, you’ve heard in painful repetition about the alleged
malfeasance of former Secretary of State Hillary Clinton and her once-private
email server. Indeed, I wrote about this
case in abstract terms when discussing Ethical
Sensitive Data Handling. But when we boil down the politics of the case, it
involves ESI and digital evidence in their purest form. Digital evidence examiners and investigators
were required to sift through gigabytes (if not more) of data to determine
what, if any, illegal acts took place.
And because it is generally humanly impossible to read each and every
email amongst the thousands presented individually, the normal methodology
would be to use e-discovery methods and key words to search for emails to and
from individuals of interest and the content of emails which may contain
certain key words.
Regardless
of all of the expertise at the digital evidence section of the FBI and other
investigating agencies, a reported 30,000 emails could not be recovered. This, perhaps more than any other factor
involved in this case, has garnered the most high-profile attention. Think about the irony of that for a minute –
the data we don’t know about and can’t recover has garnered the most
attention. Undoubtedly, the value of
appropriate, effective recovery methods for ESI cannot be ignored.
Former Congressman
& Mayoral Candidate, Anthony Weiner
Are selfies
considered ESI? You bet! Unfortunately for the legal profession in
general, ESI generally gets pigeon-holed into two categories – email and text
messages. But Electronically Stored
Information (ESI) can come in various means as this example and the following
will show. When former New York
Congressman Anthony Weiner was exposed (pun intended) in 2011 sending nude
pictures of his genitals to women he met online, it opened up a can of worms
about ESI that perhaps hasn’t been fully explored. While those pictures may not have been used
as evidence in any court case yet, with the subsequent revelations of similar
behavior (2013 & 2016), it’s almost certain they will be used in some sort
of domestic case involving divorce and/or custody.
As I constantly
tell investigators in both the private and public arenas, affairs are conducted
via mobile devices, plain and simple.
Toward the end of discovering the evidence of those affairs, examiners
should consider all areas where the evidence may be stored. In this simple example, it can be stored on
the primary (sending) device, the secondary (receiving) device and stored on the
servers of the provider used to send the photos, such as iMessage (Apple),
Skype, Twitter and so on. The data is
somewhere, it’s just a matter of articulating where it may be found and why you
need access to it.
Law Enforcement Use of
Body-Mounted Cameras
As
touched-upon in the article linked
here, the advent of police use of body-mounted cameras to help create an
unedited view of encounters with the public has created a swell of a particular
type of ESI and digital evidence, digital video. Along with the ability to record virtually
every encounter an officer has with the public comes the responsibility for
safe, accurate storage and public access to the ESI, where appropriate. These videos have already been used in a
number of civil and criminal proceedings and their ubiquitous nature will only
continue.
Fortunately,
along with the explosion of this type of evidence, the market has adjusted and
there are already at least one or two reputable digital evidence storage
services for this ESI. However, the
volume of storage space needed to store millions of hours of digital video
cannot be overlooked. This evidence must
be handled very carefully to ensure the purest form of the evidence is provided
in legal proceedings and to belay any claim that the custodial agency
manipulated or edited the video, beyond protection of innocent victims.
Wrapping it up
ESI is
everywhere… In case you missed it the first time. This article merely points out a few cases
and instances where ESI either was used or could be used in future
proceedings. The goal here is to spawn
those in the legal profession to start broadening their view of where ESI can
originate and what is available in any case they may work. However, once certain types of ESI are
identified, only trained professionals should be charged with the acquisition
and secure storage of this digital evidence.
Only then is the integrity of the evidence and the digital forensic
process truly adhered to.
Author:
Patrick J.
Siewert
Principal
Consultant
Professional
Digital Forensic Consulting, LLC
Virginia
DCJS #11-14869
Based in
Richmond, Virginia
Available
Globally
We Find the Truth for a
Living!
Computer Forensics -- Mobile Forensics -- Specialized
Investigation
About the Author:
Patrick Siewert is the Principal
Consultant of Pro Digital Forensic Consulting, based in Richmond,
Virginia. In 15 years of law
enforcement, he investigated hundreds of high-tech crimes, incorporating
digital forensics into the investigations, and was responsible for
investigating some of the highest jury and plea bargain child exploitation
investigations in Virginia court history. Patrick is a graduate of SCERS, BCERT, the
Reid School of Interview & Interrogation and multiple online investigation
schools (among others). He continues to hone his digital forensic expertise in
the private sector while growing his consulting & investigation business
marketed toward litigators, professional investigators and corporations, while
keeping in touch with the public safety community as a Law Enforcement Instructor.
Twitter: @ProDigital4n6
