A multi-part update on the discovery challenges posed by the proliferation and popularity of smartphones and other mobile devices
Almost two years ago, we discussed the phenomenal power and surging popularity of mobile devices – primarily smartphones – and the implications they have for discovery. With more computing power in the pocket of most people “than all of NASA when it put the first men on the moon in 1969,” mobile device usage minutes surpassing computer usage minutes, and a vast majority of people using text messages for business as well as personal communications, smartphones had become a major source of relevant electronically-stored information (ESI).
In the two years since, the importance of smartphones and other mobile devices as discovery sources has only grown, with new news, new cases, and new guidance all becoming available. In this short series, we will review the developments of the past two years, beginning in this part with new usage data and other news.
A new Communications Market Report from Ofcom has provided a picture of smartphone usage in the United Kingdom. According to the report, 78% of people in the UK own a smartphone, and 95% of people ages 16-24 own a smartphone. “The smartphone is now the device people say they would miss the most,” and “[p]eople in the UK now check their smartphones, on average, every 12 minutes of the waking day.” Additional insights from the report include:
In another recent study from Oxford Economics (commissioned by Samsung), “[n]early 80 percent of the survey’s respondents [said] their employees can’t do their jobs effectively without a mobile phone, and three-quarters [said] mobile devices are essential to their business workflows.” Despite this overwhelming importance, a majority of employers are still relying either fully or partially on bring-your-own-device (BYOD) policies for employees’ devices:
Companies are also still split on how to handle the costs associated with employees’ mobile devices, “with some businesses paying for devices and service plans outright, some sharing costs with employees and others letting employees foot the whole bill.”
In addition to new usage data, we also have new information about the growing importance of mobile devices as ESI sources in actual cases.
Cellebrite – maker of forensic tools for mobile devices – recently released its 2019 Report on Industry Trends for Law Enforcement, which found that smartphones were far and away the most common source of digital evidence “with 91% of respondents indicating that evidence sources from smartphones were an evidence source ‘very frequently’ (81%) or ‘frequently’ (10%),” while “[c]omputers were a distant second at 52%.” For example, in one high-profile criminal case, police pieced together a trail of ESI evidence that included: Tinder profiles, Snapchat photos, Facebook videos, iPhone forensic analysis, phone pings and GPS locations, and more. Interestingly, a circuit split has now arisen over whether compelling biometric unlocking of a mobile device violates the privilege against self-incrimination in the same way as compelling the provision of a password.
As smartphones and social media communication channels have become more frequent sources, so too have emoji (or emoticons) shown up more frequently in cases. According to the tracking efforts of a law professor, almost a third of all cases over the last fifteen years referencing emoji and emoticons appeared in 2018. Examples range from landlord disputes to sex trafficking cases. Emoji create challenges of interpretation due to their inherent ambiguity, their context dependency, and their differing appearances from platform to platform.
On the technology side of things, phone makers continue to improve the security of their devices, making access and collection more challenging. Last summer, it was revealed that Apple would close an iPhone security hole that had been widely used to crack devices, and additional iOS updates last fall affected the ability to reliably collect from iCloud backups instead of from devices, as well as rendering a popular iPhone cracking tool ineffective.
Cellebrite has also collaborated with Relativity on a software solution for simplifying the process of turning Cellebrite mobile device collection outputs into Relativity review platform inputs. As we have previously discussed, this is a process that has long required proprietary solutions and custom work to turn enormously complex single exports into thousands of discrete, reviewable records.
Finally, in an ironic reversal, Relativity has released an app for iOS devices (i.e., iPhones, iPads) that makes it possible to conduct document review in RelativityOne from such a mobile device, creating the possibility of reviewing mobile data on mobile device.
Upcoming in this Series
In the next Part of this short Update Series, we will begin our review of some of the new cases discussing mobile devices since we last covered this topic in 2017.