Ride The Lightning

THE “CSI EFFECT” – THE MODERN JURY

Who would have imagined that the TV show CSI would spawn a “CSI Effect” that litigators routinely worry about when selecting juries? We simply can’t watch “CSI,” at least not when computer forensics constitutes part of the plot. John becomes livid and lectures the actors on their manifold technical inaccuracies – at full volume, as though that might allow them to hear and correct their behavior. All he accomplishes is alarming our labs, who think Dad has gone bonkers. But for viewers who are not forensics technologists, CSI is gospel, and they have obviously come to expect glossy CSI style forensics in criminal cases. Attorneys have had to deal with the “CSI effect” and are not especially happy about it. Prosecutors don’t want juries who require CSI style scientific evidence before finding defendants guilty and defense attorneys don’t want jurors who take scientific evidence as irrefutable. The somewhat comic effect has been that attorneys are now frequently quizzing potential jurors on their TV viewing habits. An article discussing this effect may be found at http://www.dailyprogress.com/servlet/Satellite?pagename=CDP/MGArticle/CDP_BasicArticle&c=MGArticle&cid=1173353617726&path=

E-mail: snelson@senseient.com      Phone: 703-359-0700

COMPANIES CRY “UNCLE!” : THE HIGH PRICE OF ED

It comes as no surprise to anyone that electronic discovery is expensive. Still, it is interesting that a recent survey found that one in five companies has chosen to abandon litigation because the cost of recovering and reviewing electronic evidence was deemed prohibitive. The survey, conducted by iTracks for Fortiva, an on-demand e-mail archiving provider, also reported that a majority of businesses are making an effort to limit electronic discovery risks and to improve their litigation readiness practices. For those who hunger for statistics as much as I do, the article is full of them. There certainly is a warning here for businesses that are taking the ostrich head-in-sand approach to their electronic data – if you don’t prepare adequately for ESI discovery in litigation, the sheer economics of the situation may force you to belly up and settle, irrespective of the merits of your case. The article may be found at  http://technology.findlaw.com/articles/01179/011040.html

The ostrich, by the way, is much maligned. Does it ever bury its head in the sand? Scientists say no – this is another populist myth. This factoid comes to you from the woman annointed by her daughters as the Queen of Useless Knowledge, a title in which I take great pride.

E-mail: snelson@senseient.com     Phone: 703-359-0700

DIAL M FOR MISCHIEF: FEDS USING SECRET WARRANTS TO TRACK OUR LOCATION THROUGH OUR CELL PHONES

Hope everyone had a great Thanksgiving. My daughters talked me into doing a 5K run/walk for the homeless so my primary memory of the day is pain. (Note to self: the elliptical is in the bedroom precisely so you’ll use it every day)

I was up on my soapbox in the last post and had hoped to climb down, but then I saw an article in Friday’s Washington Post that made my blood boil again. So here I remain, appalled at the fact that the government is routinely getting secret warrants (many reportedly granted without probable cause) to track the locations of Americans through their cell phones. Once again, they are collecting electronic evidence in secret – and it is only through the diligence of the Fourth Estate that we learn what our own government is doing.

Currently, the government asserts that it is only tracking criminal suspects, but we all know how easily that statement is made and how easily these warrants could be used to track anyone who comes to the government’s attention for any reason whatever. According to the Post, the requests for the warrants and the orders themselves are sealed at the government’s request, so no one actually knows how extensive the practice is or whether the requests are genuinely without any probable cause assertions.

We all carry cell phones routinely – which now means that we all carry tracking devices. Whether Big Brother chooses to watch us or not is unknown to us. We, who have no choice but to trust in the judicial system to correct governmental misdeeds, are at a complete loss when judges fail to act. It is heartening that a few brave judges have denied these requests for warrants and one (Magisrate Judge Brian L. Owsley from Texas) has published a stinging opinion denying the government’s request.

It is my ardent hope that reporters and judges alike will continue to monitor these practices and that both will seek to combat further incursions on our liberties.

We would all do well to heed the words of Thomas Jefferson: Eternal vigilance is the price of liberty.

The Post article may be found at http://www.washingtonpost.com/wp-dyn/content/article/2007/11/22/AR2007112201444.html?sub=AR

E-mail: snelson@senseient.com    Phone: 703-359-0700

TALKING TURKEY: GIVING THANKS FOR OUR CONSTITUTION

One of the nice things about being a blogger is that you can stand on your soapbox whenever you wish. So as we prepare for Thanksgiving, I received an e-mail from the ACLU reminding me that we need to give thanks for (and protect) our much beleaguered Constitution. There is a connection to electronic evidence here – the fact that, through warrantless searches which I believe are flatly unconstitutional, the U.S. government has a great deal of evidence about many of us. The U.S. telecommunications companies obviously bellied up and provided the government with a pipeline to all of our correspondence over the Internet, which is why all these companies are now pleading with Congress for immunity. Privacy is a distant memory. All we have now is privacy through obscurity – the simple fact that the government has more data than it could ever review gives a modicum of privacy – until, for whatever reason, we come to the government’s attention.

But quite beyond that, it infuriates me that we are discussing whether or not waterboarding is torture. Any moron (Dick Cheney apparently doesn’t rate even that highly) can plainly see that it IS torture and its defense demeans everything the United States has ever stood for. We were once the shining light of humane detention – the rest of the world looked up to us for our work in drafting international treaties and laws banning torture after World War II and our readiness to give refuge to victims of atrocities perpetrated by other governments. When did we become the enemy we beheld and why is there so little protest against the ethical nightmare that has become the current administration’s hallmark?

Not only does torture not work, because the victim will say anything to stop the torture, we are actually increasing the likelihood that our own soldiers will be tortured, because we have no ideals to answer to anymore. Our enemies can shrug and say, honestly, “You Americans torture too.”

Our Constitution is riddled with bullet holes and we are apparently all watching “Dancing with the Stars” and "American Idol" while the document that ensured our rights and our democracy is being eroded. You’ll see a lot of folks at Thanksgiving Day dinner – if current events come up, it’s a great time to raise the awareness of those around the dinner table. If we take no steps to protect our civil liberties, one day we will find ourselves in a country that bears no resemblance to the proud nation created by our founding fathers.

E-mail: snelson@senseient.com   Phone: 703-359-0700

HILL STREET BLUES: TRAINING COPS IN E-EVIDENCE

It is no secret to anyone in computer forensics that law enforcement needs some serious training when it comes to electronic evidence. How to properly seize, secure and document this kind of evidence is a mystery to many of the rank and file. Indeed, we have often seen cases where the evidence has been “stomped on” by law enforcement, not out of any desire to do mischief, but merely out of ignorance and curiosity. It appears, especially in cases where pornography may be involved, that there is an irresistible impulse to “take a peek.”

Police departments and law enforcement agencies across the country have done a commendable job of scrambling to get training in place, though it has clearly been an uphill battle. An interesting phenomenon has developed – law enforcement is now partnering with universities in an attempt to bridge the knowledge gap. Purdue University has a partnership with the Indiana State Police and the National Center for White Collar Crimes. Similar kinds of partnerships exist at such places as the University of Rhode Island, Dartmouth College, Carnegie Mellon University and the University of Central Florida. This strikes me as a very useful collaboration, and one that may produce enormous benefits. No one likes having cases thrown out because electronic evidence was mishandled, so it benefits us all if this sort of education profilerates.

As Sergeant Phil Esterhaus used to say on Hill Street Blues, “Hey, let’s be careful out there.”

E-mail: snelson@senseient.com   Phone: 703-359-0700

YOU WANT THE TRUTH? YOU CAN’T AFFORD THE TRUTH!

Judge Thomas Vanaskie, Chief Judge for the U.S. District Court for the Middle District of Pennsylvania, is obviously a fan of A Few Good Men. The audience at a CLE laughed several days ago as he reengineered the infamous words of Colonel Nathan R. Jessup (memorably played by Jack Nicholson) to adroitly describe the situation in the e-evidence world where the costs of electronic discovery can be so extensive that parties frequently find that they can’t pony up the funds to get to the truth given the amount in controversy.

We’ve had the pleasure of lecturing with Judge Vanaskie several times, and he is a font of practical advice. He frequently draws on the experiences of his colleagues as well and offers some collective wisdom and great stories from the bench. One striking tip he tendered for other judges: he said that he tries to avoid electronic discovery controversies by requiring the parties to schedule a telephone conference with him before they file a discovery motion. This, he points out with some satisfaction, seems to have resulted in a dearth of discovery controversies in his court. Perhaps coincidental, perhaps not, but it sure seems like a good idea.

E-mail: snelson@senseient.com  Phone: 703-359-0700

A WRINKLE IN TIME: CHANGING THE CLOCK TO COVER YOUR TRACKS

An interesting case was reported recently on the Electronic Discovery Blog (http://www.electronicdiscoveryblog.com). In re Hawaiian Airlines involved something not very often seen in computer forensics – the changing of the computer clock. Spoliation, of course, is an everyday occurrence, and it happened here too. The defendant installed a scrubbing program (very ho-hum these days) to erase what one would assume to be incriminating data. The unusual part was that he changed the system clock to make it appear as though the data had been deleted prior to the filing of the complaint. Tsk, tsk. The evidence revealed that the defendant had begun looking for scrubbing software within a week of receiving a litigation hold e-mail from corporate counsel. He also signed a declaration swearing that he only copied the data at issue onto a CD and not to any of his computers. Confronted with evidence to the contrary, he went on his wiping mission. The result was an adverse inference instruction and the case continues on. As anyone involved in computer forensics knows, the granting of an adverse inference does not bode well for a defendant. The opinion in the case is posted at http://www.electronicdiscoveryblog.com/cases/hawaiian_airlines.pdf

E-mail: snelson@senseient.com   Phone: 703-359-0700

TRUST ME, I’M FROM THE GOVERNMENT: COURT DECLINES

Yesterday, a federal judge ordered the White House to preserve copies of all its e-mails, after (surprise) strenuous argument from the administration that this action was unnecessary. U.S. District Judge Henry Kennedy directed the Executive Office of the President to preserve backup tapes containing White House e-mails in response to two lawsuits brought by Citizens for Responsibility and Ethics in Washington (CREW) and the National Security Archive that seek to determine whether the White House has destroyed e-mails in violation of federal law. The groups allege that some 5 million White House e-mails have vanished. The Federal Records Act contains strict standards prohibiting the destruction of government documents including electronic messages, unless first approved by the archivist of the United States. According to Meredith Fuchs, a lawyer for the National Security Archive, the order "should stop any future destruction of e-mails, but the White House stopped archiving its e-mail in 2003 and we don't know if some backup tapes for those e-mails were already taped over before we went to court. It's a mystery."  Cynics will note that this issue arose nearly two years ago in the probe seeking to identify the source of the leak that Valerie Plame was working for the CIA. Special counsel Patrick Fitzgerald revealed early in 2006 that relevant e-mails could be missing because of an archiving problem at the White House. Who are they using, “Geeks ‘R Us?” Nothing the administration attorneys have said regarding the electronic evidence in this case passes the smell test. Congratulations to Judge Kennedy for holding the White House accountable.

E-mail: snelson@senseient.com     Phone: 703-359-0700

THREE WAY SEX, LIES AND VIDEOTAPE: WISCONSIN BREEDS A CHEESY LAWYER

John and I are in Chicago lecturing for the American Academy of Matrimonial Lawyers. This is a group that knows how to party (bragging rights went to the attorneys who stayed out the latest) and breakfast was a jovial affair at which a lawyer from Wisconsin told us a story so incredible that I had to return to my hotel room to verify that what I heard was true. Lawyers get in trouble all the time, but lawyer Michael Inglimo really went over the top, with one of the more colorful disciplinary proceedings on record.

The electronic evidence in the case was a videotape of Mr. Inglimo having sex with his client’s girlfriend. Being a helpful sort, Mr. Inglimo provided the recording equipment himself. According to the client, the sex was provided to pay off legal fees and the videotape was made as a kind of receipt that there had been “payment in full.” My oh my.

Ah, did I mention that the videotape featured Mr. Inglimo snorting what appeared to be cocaine? Always at the ready with an explanation, Mr. Inglimo thought that the white substance in the video might have been flour or salt. Sure, that makes sense.

Now it wasn’t all colorful – Mr. Inglimo was found to have committed the usual trust account shenanigans. No doubt these appeared just as reasonable to him as performing his duties as a lawyer in court while high on marijuana. This man was serious about his vices. His license was suspended for three years as a result of his misdeeds, which struck this reader as very light punishment indeed. There’s even a hilarious discussion on page 27 of the opinion about what the word “with” means (as in sex with a client). Highly reminiscent of President’s Clinton’s famous “It all depends on what the meaning of "is" is." It is a comic farce well worth a few moments’ reading.

Honestly, no one could make this stuff up. I’m sure some TV writer is happily converting this 49 page opinion into a script. And yes, three way sex (as referenced in the title of this blog entry) was also a part of Mr. Inglimo’s many transgressions. For the full tabloid quality story, you may find the opinion at http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=30663

E-mail: snelson@senseient.com   Phone: 703.359.0700

GOTCHA! 2ND CIRCUIT OKS INTERNET STINGS

On October 22nd, the 2nd Circuit upheld the Internet stings run by investigators and informants posing as underage victims in order to trap sexual predators. The court rejected the defendant’s First Amendment arguments, as well as his arguments that the statute was too vague, that 18 U.S.C. 24222(b) requires an actual minor as a victim and that the facts were insufficient to sustain a conviction. Interestingly, the court noted the defendant was essentially asserting a defense of factual impossibility since he could not bring the illegal act to conclusion. The court retorted that “factual impossibility is not a defense to a charge of attempt in substantive criminal law.” The entrapment defense in Internet sting operations has been around for a long time – and it is generally unsuccessful. The decision may be found at http://tinyurl.com/28bt25

E-mail: snelson@senseient.com   Phone: 703-359-0700