During the recent English riots, basic policing was not the only area of the law to become suddenly more complex: so did the fields of e-disclosure and electronically stored information (ESI).
As pockets of William Blake’s ‘green and pleasant land’ descended into violence, there was a small but significant trace of organisation behind the chaos: the Blackberry handset. Or, more specifically, Blackberry Messenger (BBM) – the texting software that enables users of the popular devices to banter with each other over the internet. But although BBM takes advantage of the internet’s highways and byways in order to function, it is in fact a closed system: entirely inaccessible from other areas of the web, and wholly proprietary to the hardware that runs it.
In the dazed aftermath of the riots, it emerged that instructions had been swapped between Blackberry users via BBM as a means of inciting hostility towards beleaguered police forces and coordinating acts of looting. In the space of five days, BBM stopped being an innocuous, value-added branch of Blackberry’s service offering and became something altogether different: a challenge to the legal system as a rich source of incriminating – but privately held – ESI.
BBM is not alone.
Platforms for electronic communications are diversifying at a bewildering rate, and trends indicate that a ‘format war’ straight out of the hardware world (such as Blu-Ray’s triumph over HD-DVD) is underway. In July last year, technology experts Gartner predicted that by 2014, social media would outstrip standard email as the dominant form of virtual contact. This is reflected in two key launches over the past 10 months: one that demonstrates how social networks have been earmarked as a source of growth for the gaming industry – and another that shows how networks have become more competitive in their own right.
In November 2010, Microsoft released its device Kinect, an add-on for the Xbox 360 providing gesture recognition for full-body dance and sports games. Tapping into the inherent camaraderie of the console community, Kinect enables users to share and comment upon pictures and video clips of each other’s gameplay, recorded automatically during their gaming sessions. Those pictures and videos can be shared via Facebook, or on Microsoft’s Xbox LIVE – a network available to PCs, but mostly a preserve of Xbox owners.
Seven months later, leading internet service provider Google launched Google+, a direct challenge to the market dominance of Facebook, for a field-testing phase. Even though Facebook has always enabled users to set up groups or fan pages that other users can sign up to with the click of a ‘Join’ or ‘Like’ button, the content of those pages is typically public. You may not be able to add comments or links to invite-only groups, but you can view contents provided by existing members, and find the titles of those pages in Facebook’s internal search directory. By subtle contrast, Google+ enables its users to bond together in ‘huddles’ on a friend-by-friend basis, and the existence of each huddle is known only to its members. This effectively creates multiple tiers of privacy within Google+ that are arguably more sophisticated, and certainly more granular, than the privacy filter settings available on Facebook.
The secret corridors of BBM; the gamers-only club of Xbox LIVE; the clandestine huddles of Google+ – all could become major hurdles in the future of e-disclosure.
Chain of custody
Lawyers cannot afford to underestimate the scale of the challenges that may arise from these platforms. In terms of picturing where they could be in five years’ time, Facebook provides a useful model. ‘More than 1bn items of content, from status updates to photos, are shared on Facebook daily,’ said Tracey Stretton, legal consultant at forensic computing company Kroll Ontrack, in an interview with NewLegal Review. ‘Based on its total membership, if Facebook were a country it would be the third largest in the world – behind China and India and ahead of the US.’
So, in the UK, which agency is responsible for certifying the notability of new networks, or similar ESI sources, for use in trials? Surprisingly, none. ‘Lawyers in a court case will take their cue from the trial judge or the Supreme Court on what material to present, based upon the needs of the case,’ Stretton explained. ‘A piece of ESI is a document like any other, and when presenting it, a lawyer will have to persuade the judge that it is admissible. The judge will then decide whether it should be used, based upon a strict, two-stage test: first, it must be relevant; and second, it must be reliable.’
In that test, relevance is usually fairly easy to demonstrate: a time code will either include or exclude a piece of ESI from discussion of a specific timeframe; names mentioned will either match, or have no connection with, those of the main players in a crime or civil dispute.
Reliability, though, demands far more discernment. ‘It’s a complex area of law,’ said Stretton. ‘You have to persuade the judge that the source would not have been intercepted or interfered with, so the most important step is to ensure that the source is authentic. This should be achieved by establishing a chain of custody for the evidence from the author to the present holder, providing convincing proof that the evidence has not been tampered with or fabricated in any way. The lawyer should be able to say: “This is where I obtained the information, and I can vouch for its integrity.”’
Pattern of usage
If they are hosting deliberately deceptive content, social media can cloud a chain of evidence with ambiguities. But according to Stretton, such riddles are not impossible to crack. ‘In the UK defamation case Applause Stores Productions Ltd and Matthew Firsht v Grant Raphael, much of the evidence was based around a false Facebook profile that had been created to show one of the plaintiffs in a negative light. That profile was linked to a Facebook group created for the same purpose, and the plaintiff’s side had to establish that the defendant was responsible for adding this material.
‘The plaintiffs sought a disclosure order against Facebook, compelling it to reveal the IP addresses of computers linked to the email accounts behind the group and profile. From there, the plaintiffs built up a composite activity log itemising the defendant’s Facebook time, and after considering this pattern of usage, the judge found for the plaintiffs. They had successfully drawn together an integrated puzzle of evidence, building up a circumstantial picture of the defamatory activities.’
But how would this process work with newer platforms? With its capability to store video clips like a CCTV system, Kinect has a host of evidentiary uses: determining the whereabouts of witnesses at key times; revealing the presence of stolen goods in a room; or identifying intruders. Its comments function could even be used as a tool of incitement, just as Blackberry Messenger was – with a similarly low risk of exposure. As for Google+, its hidden huddles offer ample scope for generating evidence of conspiratorial behaviour. Yet the market appeal of these sources hinges on their privacy credentials.
‘The tension between accessibility and privacy is one of the biggest debates in the legal sector,’ said Stretton. ‘In terms of accessibility, data could be stored on a PC’s hard drive, a smartphone, or the server of a social network – all of which may be considered “private”, to a greater or lesser degree. But the hardcore-law view is that, if a trial judge has been persuaded that what is being withheld is admissible, the production of the material would typically outweigh the privacy argument. It’s wishful thinking that we should have reasonable expectations of privacy or confidentiality in our network usage that overrides basic legal requirements.’
Stretton predicts that, as email declines, so too will the boundaries between gaming platforms and social networks, leading to ever-more complex online realms – and lawyers would do well to keep an eye on emerging players. ‘Wherever people are spending their time and interacting, evidence will gather,’ she said. ‘Don’t get left behind.’
For the full judgment in Applause Stores Productions Ltd and Matthew Firsht v Grant Raphael, click here