May I Use Your Pocket Computer?

For a time-traveler from the beginning of the millennium, “phone” would probably not be the first term that would come to their mind when looking at the devices in the hands of most people today.

Considering the purpose of a phone, calling smartphones “phones” does them a big disservice, as their invention was such a huge leap forward in terms of building a connected world. In the present day, many people would struggle to think of life without these mobile devices due to the instant connectivity to virtually everything at their fingertips.

As mobile devices have become inseparable from our personal and business lives, the data they hold is increasingly rich and granular enough to develop profiles of intimate detail on the users, regardless of whether most users realize this or not. In fact, due to the intimate nature of these devices, they could harbor much more valuable information than users’ PCs.

By not labelling these devices “computers”, investigations and legal sectors have benefited like no other. However, these rich sources of information should be handled expertly and organizations should be aware of the various considerations and challenges that are associated with incorporating data from these devices in investigations or disputes.

Most investigations require a multi-dimensional perspective as opposed to a linear review of documents, which is more likely to be the case in a contract dispute for instance. Being able to interrogate as many avenues of information as possible increases the likelihood of success in an investigation. As much as business emails can play a vital role in an investigation, mobile devices could offer additional pieces of a puzzle, enabling the building of a more unabridged story. For example, after identifying an email indicating a conversation being taken to a different medium, using data available on a mobile device, investigators could connect the dots by combining call logs, text messages, visited locations, browsed websites, wireless networks connected and so on.

With regards to the considerations for using mobile devices in investigations or disputes, one of the main aspects is whether companies have the legal right to access their employees’ devices. There are numerous financial and logistic advantages of Bring Your Own Device policies, but they also come with various challenges. Organizations should understand the associated legal and technical implications of such policies, as they will become crucial in a crisis.

Technical access to data on mobile devices is another key consideration—an issue that became exceedingly apparent in the recent dispute between Apple and the FBI, in which the FBI requested Apple’s assistance in accessing a gunman’s phone.

Even with complete access to individuals’ mobile phones, the preservation, transportation and examination of these devices need to be handled with extreme caution and by experts. In fact, law enforcement agents are being instructed not to even look at the devices with facial recognition features to avoid inadvertently locking them, or worse, wiping the data off the device entirely. In addition, due to the connected nature of mobile devices, they pose a high risk of data spoliation. It is possible to remotely wipe the data off the device or alter the data on the devices, which could render the entire evidence inadmissible in court.

Further to the challenges in collecting data from mobile devices, given the volume and variety of third-party applications and the speed at which software is updated on mobile devices, the ability to analyze this data is a constant race for the electronic discovery industry, which requires state-of-the-art tools and highly-skilled professionals.

The practicality offered by smartphones has transformed our personal and business lives in ways that are indispensable to us, and that were unimaginable not so long ago. As a result, mobile devices are invaluable avenues of information that were not historically part of an investigators’ arsenal.

Organizations should be aware of the challenges and considerations associated with harvesting these rich sources of information, which requires comprehensive legal advice and technology specialists equipped with the right skillset and a state-of-the-art toolkit.