Going Mobile — Leveraging Smartphone Data for Your Case
As mobile devices become a central part of our lives, they hold a host of invaluable information that could prove innocence or guilt beyond a reasonable doubt in a civil litigation case. Lawyers are increasingly using data from smartphones and tablets as support for their defense. These digital fingerprints should not be ignored.
Mobile Devices Hold a Host of Critical Evidence
Litigators are routinely seeking the assistance of forensic phone experts to extract important data from mobile phones and tablets. The types of data these forensic specialists can recover include data usage, text messages, call logs, GPS coordinates, digital media like pictures and videos, and more. This information is vital to showing what an individual was doing at the time of an incident. It can show times and locations when the suspect was using a specific mobile app, making a phone call, sending a text, or browsing the internet.
A cell phone user’s location is automatically tracked because this information is necessary to connect the phone with a nearby cell phone tower. This data can be used to pinpoint where a suspect was at the time of the crime. This data is called Call Detail Records or CDR.
Alternatively, investigators can look at the WiFi networks the phone joined as well as the dates it joined those networks to get a sense of the user’s whereabouts leading up to or during the crime. They can also look at apps that require location data or photos that were automatically geotagged. Services like Google collect a large amount of location information, and can track a user’s location down to about 5 meters.
Even if a suspect believes they have deleted all incriminating text messages, an experienced forensics team may be able to retrieve the messages and their timestamps. However, deleted messages can be overwritten, so if the message was sent months ago and enough texts were sent after that one, it may be impossible for the forensics experts to recover the text.
A user may believe they’ve artfully covered their tracks by deleting their smartphone’s search history, but this data is easily recoverable for a forensics company. When someone deletes their search history, it is simply not displayed anymore, but it is still on the device. A forensic expert can extract this data for a lawyer to use as part of their case.
How Mobile Data Is Collected for Litigation
Before a forensics specialist can work on extracting data from the mobile device, they will need to gain access to the smartphone. In some cases, the Court will order the release of passwords to the suspects’ devices. If the forensic expert does not have access to the phone’s password, they will need to break into the device, which could take time and effort depending on the length of the password.
In criminal cases in New Jersey, the State can compel defendants to turn over passwords. In the recently decided NJ Supreme Court case State v. Robert Andrews (A-71-18/082209), the court held that a criminal defendant can be compelled to unlock their phone or disclose the password. The court concluded this did not violate the 5th Amendment to the U.S. Constitution or NJ common law regarding self-incrimination.
Pennsylvania courts, as with many other courts, have ruled that the Commonwealth’s law enforcement CANNOT force suspects to turn over passwords — as it would violate the 5th Amendment. This does not apply to biometric access like face unlock or fingerprint unlock.
Forensic examiners do possess means to access devices without passwords, such as a GreyKey device — which allows forensic examiners to bypass Apple passwords on many iPhones. There is also iCloud data, which can be obtained through data warrants served to Apple.
Both iOS and Android devices have encrypted and unencrypted storage areas to increase the user’s privacy and security. Data included in the encrypted section includes text messages and location information. If the forensic investigator does not have password access to the phone, they will have to use special software to bypass this encrypted area.
Cell phone manufacturers such as Apple keep up with forensic expert’s ability to access this information, so they release software updates to patch newly found exploits. Should you need to recover information from a mobile device, it is strongly recommended to NOT update your phone. Older phones and older software versions provide forensic examiners a much better chance of gathering deleted data than newer devices and newer operating systems.
It is also important to discuss with a forensic investigator other places the information you are looking to recover might reside. With interconnected devices, many times your data is not simply in one location, but contained within cloud backup(s).
Protecting a Person’s Privacy While Collecting Data
A challenge lawyers face when seeking to use smartphone data for their cases is a matter of relevancy vs. privacy. Parties can obtain discovery when the data is relevant to the pending case. However, forensic cellular extractions typically require a complete dump of the user’s smartphone data, which means that years of the suspect’s personal information could be exposed.
To protect the user’s right to privacy and allow the other party to extract relevant data from a mobile device, courts set in place certain measures to safeguard privacy rights. These measures can include specifying the scope of the information extracted, putting protective orders and confidentiality agreements into place, and having a third-party handle the forensic examination. In many cases, you can work with a designated neutral forensic or eDiscovery vendor to help craft an ESI (Electronically Stored Information) protocol to extract the relevant information and safeguard other personal and non-pertinent data.
Partner With Forensics Experts for Discovering Key Smartphone Data
For several years now, lawyers have been building their cases based on the data extracted from smartphones during the discovery process. Whether the case involves a traffic accident or corporate theft, our mobile phone experts at Cornerstone Discovery can help you collect the information you need to prove innocence or guilt. We are experienced in data recovery and extraction and have access to advanced technologies to get you the data you need when you need it.
For more information about our digital litigation services and mobile device investigative services, reach out to our team today.