Know That Smartphone (And the Data Stored Therein)

What data can be harvested from the typical smartphone? How can litigators utilize forensics to obtain this data for use in legal proceedings?

Two recent articles from Law Pro’s Tim Lemieux and Rob Lekowski of ABA’s Law Technology Today have looked at these questions and offer quite a bit of need-to-know information.

The typical mobile device retains information on the locations of all calls, all wifi-networks joined, photos taken, and apps that utilize location services.  Text messages – even those deleted – will remain on the device until overwritten, as will browsing histories. Even encrypted data may be accessible.

And of course, there will also be all the usual email, documents and other app data that will be readily available from the device, without any forensic voodoo.

Four-digit passcodes present virtually no obstacle to forensics experts seeking access to mobile devices, according the the Lekowski article.  Even a rudimentary Google search will yield an avalanche of results as to forensic software suites that are available to assist in data harvesting from mobile devices and the cloud-based mail and data storage applications they are connected to.

There has been much jurisprudence in a criminal law context as to the necessity of obtaining warrants prior to police searches of mobile devices.  In R. v. Manley, a 2011 decision of the Ontario Court of Appeal, Mr. Justice Sharpe noted:

Cell phones and other similar handheld communication devices in common use have the capacity to store vast amounts of highly sensitive personal, private and confidential information – all manner of private voice, text and e-mail communications, detailed personal contact lists, agendas, diaries and personal photographs. An open-ended power to search without a warrant all the stored data in any cell phone found in the possession of any arrested person clearly raises the spectre of a serious and significant invasion of the Charter-protected privacy interests of arrested persons. If the police have reasonable grounds to believe that the search of a cell phone seized upon arrest would yield evidence of the offence, the prudent course is for them to obtain a warrant authorizing the search.

In a civil context, orders may be obtained for production of cell phones and hard drives for forensic analysis (see: Comisso v. York Regional Police, 2010 ONSC 3620), subject to assessments of relevance and proportionality that may significantly narrow or limit the scope of such analysis (see: Warman v. National Post Company, 2010 ONSC 3670). Further, the ease with which electronic evidence may be destroyed has been cited as a factor in considering the appropriateness of granting an Anton Pillar order for the seizure of computers and mobile devices (see: Irving Shipbuilding Inc. v. Schmidt, 2014 ONSC 1474).

While forensic analysis of mobile phones and their data will clearly not be appropriate on a routine basis in every case, counsel should consider whether such evidence is relevant and whether production for forensic analysis would be proportionate to the claims advanced. Further, bear in mind that such evidence can be exculpatory, and is not always damning. Consider whether your own clients’ mobile data could be of assistance in advancing their claims.

Our courts continue their attempts to find a balance between the protection of privacy and the temptation to litigants of the voluminous, potentially-relevant data on mobile and other electronic devices.  As a result, determining whether mobile data is necessary and potentially discoverable must be included on the litigator’s to-do list  in prosecuting a civil action.

So today’s tip:  Know that smartphone – it might be litigation a game-changer.

– Garry J. Wise, Toronto (@wiselaw on Twitter)

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