Electronic Spying and Tracking Spouses in Divorce

Presenting a live 90-minute webinar with interactive Q&A
Electronic Spying and Tracking Spouses in
Divorce: Admissibility and Privacy Issues
Navigating Evidentiary Issues With Spyware, GPS Trackers,
Cell Phone Forensics, Wiretaps, Social Media and More
TUESDAY, MAY 7, 2013
1pm Eastern
|
12pm Central | 11am Mountain
|
10am Pacific
Today’s faculty features:
Henry S. Gornbein, Attorney, Henry S. Gornbein, Bloomfield Hills, Mich.
Sharon D. Nelson, President, Sensei Enterprises, Fairfax, Va.
John W. Simek, Vice President, Sensei Enterprises, Fairfax, Va.
E.X. Martin, III, Law Offices of E.X. Martin, Dallas
The audio portion of the conference may be accessed via the telephone or by using your computer's
speakers. Please refer to the instructions emailed to registrants for additional information. If you
have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.
Strafford Legal Webinars
Cell Phone Forensics For Criminal Defense Attorneys
&
iPad For The Defense
By
E. X. Martin, III
Attorney at Law
8828 Greenville Avenue
Dallas, Texas 75243
214-343-7400 - Voice
exmartin@airmail.net
www.cyberbar.net
Introduction
iPad & iPhone For The Defense
I am sixty six years old, married, and have one son. His name is Xerxes Martin, IV. Xerxes was an All
State Pitcher in high school and later played baseball on the Baylor University Baseball team. He graduated
from South Texas School of Law in May, 2011 and is now a practicing attorney in Dallas.
Page - 1
I have learned a great deal about baseball and about people by watching my son's games and working
with the players and coaches. His pitching coach, Mike Bacsik, gave me a book entitled The Mental Game of
Baseball. At first, I thought this book would be dull and too sophisticated for me. I was wrong on both counts. It
is more than a baseball book. Its focus and application relates to baseball but it also has suggestions that can be
applied to the practice of law.
I have been speaking to attorneys throughout the United States about using computer technology to
increase their professional competence, to improve their productivity, and to help their clients with their legal
problems. Chapter Eight of The Mental Game of Baseball contains these suggestions regarding learning that I
think attorneys will find to be stimulating and inspiring especially with respect to using new technology in their
law practices.
Intentional Learning – What to Want













We want to look for better ways of doing "our thing" and have an open mind.
We want to experiment with these new approaches. We never want to be satisfied with our knowledge or
our skill.
We want to recognize that new ways are not immediately comfortable.
We want to give these new approaches a fair test of time - and effort.
We want to think and talk about the solution, not the problem.
We want to use our minds and control our emotions.
We want to keep what works and discard what doesn't.
We want to be persistent.
We want to remember that mistakes are first steps to learning and should not be labeled as "failures."
We want to remember that many people avoid learning new ways of doing things because, in addition to not
wanting to feel uncomfortable, they "don't want to look bad."
We want to remember that good learners "risk" doing things badly, in order to find out how to do things
well.
We want to remember that had we waited until we could have walked perfectly before we made our
attempts, we never would have attempted.
We want to recognize there is always a need to learn.
Page - 2
Page - 3
Part I
Cell Phone Forensics For Criminal Defense Attorneys
I read a marketing article recently which stated that there are more than 7 billion people on the planet.
5.1 billion of them own a cell phone, but only 4.2 billion own a toothbrush. Cell phone use has increased
tremendously over the last decade. Additionally, the utility and capabilities of cell phones and / or smart phones
has increased beyond almost anyone’s expectations. I frequently refer to my cell phone as “a phone with a
computer wrapped around it that has much more ability than just making phone calls.” I also tell young
attorneys that all they need to start their law practice is a law degree and a smart phone. Today a smart phone
can assist attorneys with calendar and contact management, marketing, legal research, credit card payment
processing, document access and scanning, internet access, email and texting, power point or key note
presentations, remote access to another computer, internet document backup, file access and transferring
through “cloud computing”, and photographic, video, and audio recording capability.
While cell phones are both useful and helpful to ordinary people, unfortunately they are also used
directly or indirectly in the commission of criminal offenses. Law enforcement uses technology to combat
crime, just as criminals use it for their purposes. The widespread use of cell phones has resulted in the
development of forensic extraction devices and their software that law enforcement can use to examine a
suspect’s mobile phone for incriminating evidence. Cell phones today hold immense amounts of personal
information in which arrestees conceivably have significant privacy interests.
Cell phones equipped with GPS navigation generate geo-locational information (GEO tags) that can be
located and extracted to determine the location of the cell phone or even produce a location tracking map of
specific cell phones. This information or evidence may also determine the types of activities a person engages
Page - 4
in at a particular location. Most people do not realize that, when they move about or travel with a cell phone,
they may well be creating a detailed record of their whereabouts. Law enforcement is well aware of value of
geo-locational data with respect to criminal cases. Law enforcement can subpoena tracking records from cell
phone companies when investigating a particular individual or criminal offense.
An article in The New York Times on July 12, 2012, stated that “cell phone carriers reported that they
responded to a startling 1.3 million demands last year from law enforcement agencies for cell phone subscriber
information seeking text messages, caller locations, and other information in the course of investigations.”
Furthermore, law enforcement officers are now routinely conducting forensic examinations or “cell phone
dumps” on cell phones seized subsequent to an arrest or search. The evidence obtained from a person’s cell
phone can be used to corroborate evidence obtained from cell phone carriers or vice versa. Generally the
examinations are conducted using the popular and powerful Cellebrite device shown below.
www.cellebrite.com
The Cellebrite is a very advanced smart phone forensic analysis tool. It allows the user to extract call
activity, contact lists, calendar information, voice mails, text messages, photographs, videos, software
applications (apps), passwords, geo-locational data gained from cellphone towers, Wi-Fi hotspots, and more.
The device can also download copies of an smart phone’s existing, hidden, and deleted phone data, including
call history, text messages, contacts, images, and geotags in a short time span. The Cellebrite device allows the
user to conduct quick, easy phone searches and this device is wide acceptance with all law enforcement
agencies. The Cellebrite’s abilitythat makes it easy for law enforcement officers to conduct these intrusive cell
phone searches is a hot button issue with the ACLU and other individual privacy watchdogs.
Page - 5
Current Search Issues Regarding Cell Phones
State Appellate Courts Are Split On Weather Search Of
Cell Phone Requires A Warrant
Supreme Court Of California
It certainly appears to me that our state and federal courts are generally upholding searches of cell
phones subsequent to an arrest with or without a warrant. On January 3, 2011, the Supreme Court of California
in The People v. Gregory Diaz, 119 Cal.Rptr.3d 105, upheld a warrantless search of a cell phone that was taken
from the defendant’s person subsequent to his warrantless arrest for a felony drug offense. A text message
retrieved from the cell phone’s text message folder was consistent with the defendant having knowledge of drug
transactions. The defense moved to suppress the fruits of the cell phone search – the text message – arguing
that the warrantless search of the cell phone violated the Fourth Amendment. The trial court upheld the search
and the case was ultimately appealed to the Supreme Court of California.
The California Supreme Court relied on United States v. Robinson (1973), 414 U.S. 218, 94 S.Ct. 467,
38 L.Ed.2d 427, which established the exception to the Fourth Amendment’s warrant requirement of “a search
incident to lawful arrest.” This exception has “traditionally been justified by the reasonableness of searching
for weapons, instruments of escape, and evidence of crime when a person is taken into official custody and
Page - 6
lawfully detained.” The California Supreme Court cited United States v. Edwards (1974), 415 U.S. 800, 94
S.Ct. 1234, 39 L.Ed.2d 771, in which the high court explained: “When a custodial arrest is made, there is
always some danger that the person arrested may seek to use a weapon, or that evidence may be concealed or
destroyed. To safeguard himself and others, and to prevent the loss of evidence, it has been held reasonable for
the arresting officer to conduct a prompt, warrantless ‘search of the arrestee’s person and the area “within his
immediate control” …’ Such searches may be conducted without a warrant, and they may also be made whether
or not there is probable cause to believe that the person arrested may have a weapon or is about to destroy
evidence. The potential dangers lurking in all custodial arrests make warrantless searches of items within the
‘immediate control’ area reasonable without requiring the arresting officer to calculate the probability that
weapons or destructible evidence may be involved.” See also: United States v. Chadwick (1977), 433 U.S. 1,
97 S.Ct. 2476, 53 L.Ed.2d 538.
In conclusion, the majority of the California Supreme Court held that the police may, without obtaining
a warrant, view or listen to information electronically stored on a cell phone that the defendant was carrying
when lawfully arrested.
Supreme Court Of Ohio
The Supreme Court of Ohio in State v. Smith, 920 N.E.2d 949 decided December 15, 2009, was asked
to determine whether the Fourth Amendment to the United States Constitution prohibits the warrantless search
of data with a cell phone when the phone is lawfully seized incident to an arrest. The defense based his case on
the Fourth Amendment to the United States Constitution, which provides protection against unreasonable
searches and seizures and argued that it is well established that searches conducted without a warrant are per se
unreasonable, subject to certain “jealously and carefully drawn” exceptions.
The prosecution relied on the exception of a search incident to arrest, which allows officers to conduct a
search that includes an arrestee’s person and the area within the arrestee’s immediate control. Chimel v.
California (1969), 395 U.S. 752, 762-763, 89 S.Ct. 2034, 23 L.Ed. 685. This exception “derives from interests
in officer safety and evidence preservation that are typically implicated in arrest situations.” Arizona v. Gant
(2009), 556 U.S. ___, 129 S.Ct. 1710, 1716, 173 L.Ed.2d 485. The prosecution also argued that the cell phone
was analogous to a closed container that was found on the defendant’s person and thus may be searched. See
United States v. Finley (C.A.5, 2007), 477 F.3d 250. The prosecution further argued that the Ohio Supreme
Court should follow Finley and affirm the conviction because the trial court was correct in its conclusion that a
cell phone is akin to a closed container and thus subject to search subsequent to a lawful arrest.
The Ohio Supreme Court did not agree with this comparison reasoning that “objects following under the
banner of closed container have traditionally been physical objects capable of holding other physical objects.
Indeed, the United States Supreme Court has stated that in this situation, ‘container’ means “any object capable
of holding another object.” New York v. Belton (1981), 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768.
The Ohio Supreme Court further noted the U.S. Supreme Court’s definition of “container” in Belton, which
implies that the container must actually have a physical object within it and thus held that a cell phone is not a
closed container for purposes of a Fourth Amendment analysis.
The Court further opined that “modern understandings of the Fourth Amendment recognize that it serves
to protect an individual’s subjective expectation of privacy if that expectation is reasonable and justifiable. The
Court held that the ability of cell phones to store large amounts of private data gives their users a reasonable and
justifiable expectation of a higher level of privacy in the information they contain. Additionally, once the cell
phone is in police custody, the state has satisfied its immediate interest in collecting and preserving evidence
and can take preventive steps to ensure that the data found on the phone are neither lost nor erased. But because
Page - 7
a person has a high expectation of privacy in a cell phone’s contents, police must then obtain a warrant before
intruding into the phone’s contents.
The Ohio Supreme Court concluded that the warrantless search of data within a cell phone seized
incident to a lawful arrest is prohibited by the Fourth Amendment when the search is unnecessary for the safety
of law-enforcement officers and there are no exigent circumstances, Furthermore, because the prosecution
failed to show that either of these exceptions to the warrant requirement applied, the search of the defendant’s
cell phone was improper, and the trial court was required to exclude from evidence the call records and phone
numbers taken from the cell phone.
Additionally, various types of digital evidence (text messages, photographs, geo-locational data, etc.)
extracted from cell phones is being used in the prosecution of criminal cases. For this reason it is important for
criminal defense attorneys to be familiar with what can be obtained from a forensic examination of a cell phone
by a Cellebrite or similar device.
Law enforcement recognizes that cell phones hold enormous amounts of data and thus they have
become attractive targets for their evidentiary value. Just as cell phones and smart phones have increased their
processing power and utility, devices that are capable of forensically examining these devices have also become
much more sophisticated. One such device is the Cellebrite UFED Touch. This device is made specifically to
extract, decode, and analyze data from mobile devices. It performs physical, logical, file system and password
extraction of all data (even if deleted) from smartphones, portable GPS devices, tablets and phones
manufactured with Chinese chipsets. The Cellebrite allows law enforcement officials to crack suspects’ mobile
phones in what is now called a “cell phone dump” and mine them for incriminating information. The Cellebrite
also allows private forensic examiners to examine the data to find information that is helpful to the citizen
accused.
Page - 8
Part II
Forensic Examinations Of Cell Phones
Cellebrite UFED Touch Device
Cellphone forensics is a branch of digital forensics relating to recovery of digital evidence or data from a
mobile device under forensically sound conditions. It can also relate to any digital device that has both internal
memory and communication ability, including PDA devices, GPS devices, thumb drive, and tablet computers.
The use of phones in crime was widely recognized for some years, but the forensic study of mobile devices is a
relatively new field, dating from the early 2000s. The widespread use of cellphones (particularly smartphones)
on the consumer market caused a demand for forensic examination of the devices, which could not be met by
existing computer forensics techniques. Today, smart phones can be used to save several types of personal
information such as contacts, photos, calendars and notes, SMS and MMS messages. Smartphones may
additionally contain video, email, web browsing information, location information, and social networking
messages and contacts.
As mobile device technology advances, the amount and types of data that can be found on a mobile
device is constantly increasing. Evidence that can be potentially recovered from a mobile phone may come from
several different sources, including handset memory, SIM card, and attached memory cards such as SD cards.
This data or information can have evidentiary value in a criminal case. Traditionally mobile phone forensics
has been associated with recovering SMS and MMS messaging, as well as call logs, contact lists and phone
IMEI/ESN information. However, newer generations of smartphones also include wider varieties of
information; from web browsing, Wireless network settings, geolocation information (including geotags
contained within image metadata), e-mail and other forms of rich internet media, including important data -such as social networking service posts and contacts -- now retained on smartphone 'apps'.
Page - 9
Data Acquisition Types
Cellphone data extraction is commonly classified according to which extraction methods are more
technical and “forensically sound.” The completeness of the cellphone data extraction can depend on the
sophistication of the software used for the examination. A thoroughly sound forensic examination of a
cellphone can be timely.
Manual Analysis Of Cellphone Data
The forensic examiner utilizes the cellphone’s user interface to investigate the content of the phone's
memory. Therefore the device is used as normal, with the examiner taking pictures of each screen's contents.
This method has an advantage in that the operating system makes it unnecessary to use specialized tools or
equipment to transform raw data into human interpretable information. In practice this method is applied to cell
phones, PDAs and navigation systems. Disadvantages are that only data visible to the operating system can be
recovered; that all data are only available in form of pictures; and the process itself is time-consuming.
Logical Analysis
Logical acquisition implies a bit-by-bit copy of logical storage objects (e.g., directories and files) that
reside on a logical store (e.g., a file system partition). Logical acquisition has the advantage that system data
structures are easier for a tool to extract and organize. Logical extraction acquires information from the device
using the original equipment manufacturer application programming interface for synchronizing the phone's
contents with a personal computer. A logical extraction is generally easier to work with as it does not produce a
large binary blob. However, a skilled forensic examiner will be able to extract far more information from a
physical extraction.
Physical Analysis
Physical acquisition implies a bit-for-bit copy of an entire physical store (e.g. flash memory); therefore,
it is the method most similar to the examination of a personal computer. A physical acquisition has the
advantage of allowing deleted files and data remnants to be examined. Physical extraction acquires information
from the device by direct access to the flash memories.
Generally this is harder to achieve because the device original equipment manufacturer needs to secure
against arbitrary reading of memory; therefore, a device may be locked to a certain operator. To get around this
security, mobile forensics tool vendors often develop their own boot loaders, enabling the forensic tool to access
the memory (and often, also to bypass user passcodes or pattern locks).
Generally the physical extraction is split into two steps, the dumping phase and the decoding phase.
A physical analysis may well allow the recovery of additional evidence. I recently participated in a case
where the law enforcement agency did a logical analysis of the seized smartphone. I had my forensic expert
conduct a Physical Analysis and we recovered additional evidence including:
1.
2.
3.
4.
5.
15, 000 additional images
40+ additional videos
720 audio files
12,000+ locations
40+ MMS messages
Page - 10
6. 2800+ text files
I have worked with friend and computer expert, Lance Sloves, on several cases involving electronically
stored information that has been obtained from a defendant’s smart phone. Recently I had Lance do a cell
phone dump of my iPhone 5 for this paper and I was able to make some computer screen snap shots which I
believe demonstrate the Cellebrite’s extraction and analyzing capabilities. I am reproducing the screen snap
shots that I made because I believe they will be helpful to the defense bar in understanding what can be obtained
by the Cellebrite device.
The photographs below show the Cellebrite kit containing various cables and connectors than can be
used to extract data and information from a variety of mobile devices including older legacy phones and
smartphones such as the iPhone, Android, BlackBerry®, Nokia, Windows Mobile, and Palm.
Page - 11
The next photograph shows the iPhone 5 connected to the Cellebrite UFED Touch at the start of the cell
phone dump of this device.
The following photograph is of the desktop computer that was used in conjunction with the Cellebrite
device during the examination of the iPhone 5 in this particular example. The Cellebrite is connected to a
desktop or laptop computer using a USB cable to transfer the extracted data. The Cellebrite Physical Analyzer
software runs on the desktop computer and will expose every segment of a device’s memory data and export
this data into an easy to use software program that helps one organize, analyze, and understand the extracted
data and information.
The following screen snapshots were taken from the monitor of this computer and are reproduced here
to help one understand the extraction process and also how the extracted data is organized in a manner that
helps you drill down to, organize, and understand the information that is important to your client in a particular
case.
Page - 12
The following graphic image is the Cellebrite Physical Analyzer & Extraction Summary window.
Well Formatted Report
The previous graphic should give you a pretty good idea of the type of information that you can extract
from a smart phone. The column on the left side of the graphic under the Analyzed Data tab lists Bluetooth
Devices, Calendar, Call Log, Chats, Emails, Installed Applications, IP Connections, Locations (10,344), Maps,
Passwords, Searched Items, SMS Messages, User Accounts, Wireless Networks (44). Under Data files you
have images (47,8007), Videos (48), Audio (911), Text (713), Databases, Configurations, and Applications. At
the bottom of the previous graphic and the cut out graphic below you can see the icon buttons that can be used
to access specific data by touching the icon.
Page - 13
I find this next graphic image particularly interesting. It is an extraction summary of calls made
from the iPhone and received in both spreadsheet format and graphically. The spreadsheet highlights calls to
and from and missed from my friend Justice Jim Moseley. Seven calls are listed and bar graph shows one
incoming call, four outgoing, and two missed calls. You can also see the list of phone numbers, related name,
total for each individual both incoming, outgoing, and missed. It is easy to see how helpful this information
could be in a particular case.
The following graphic displays various text messages received on the iPhone. I consider this
image particularly important because text messages are being used is some manner in trial in almost every
criminal case. This graphic should give you some idea of how a forensic exam of a cell phone could help you
find the text message you need and pinpoint it as to time and place.
Page - 14
This next graphic image pertains to location information gathered from various sources such as
cell towers, media locations which can be photographs with embedded geo-locational information, and Wifi
networks.
When I was reviewing some of the data pertaining to the iPhone 5 accessing wireless networks, I notice
that one wireless connection was from the Westin Beach Resort in Fort Lauderdale, Florida. On February 17,
2012, I spoke at an NACDL seminar in Fort Lauderdale and stayed at the Westin Beach Resort and had in fact
accessed the hotel’s wireless network with the iPhone. The extracted data confirmed my presence or at least the
presence of my specific phone at the Westin Beach Resort in Fort Lauderdale. It is easy to say how such
information could be used to prove a point in a trial.
It is possible to export this data into a KML file that can then be opened in Google maps. It is easy to
see how helpful this type of evidence could be if you are trying to show the tracking of an individual or a
mobile device.
Page - 15
Page - 16
Part III
How A Cellular Network Operates
A cellular network or mobile network is a radio network distributed over land areas called cells, each
served by at least one fixed-location transceiver, known as a cell site or base station. In a cellular network, each
cell uses a different set of frequencies from neighboring cells, to avoid interference and provide guaranteed
bandwidth within each cell.
When joined together these cells provide radio coverage over a wide geographic area. This enables a
large number of portable transceivers (e.g., mobile phones, pagers, etc.) to communicate with each other and
with fixed transceivers and telephones anywhere in the network, via base stations, even if some of the
transceivers are moving through more than one cell during transmission.
Cellular Site Data Evidence Offered In A Criminal Case
To Track The Location Of A Cellular Phone
Prosecutors are increasing using cellular site data obtained from cellular service providers to corroborate
other evidence placing the defendant at or near the crime scene. The law enforcement agents and prosecutors
are subpoenaing a defendant’s cell phone records relating to the date and time of the alleged offense.
Cell Service Provider Business Records
The prosecution will probably begin by moving to admit into evidence at trial the cell phone service
provider call data records under the business record exception to the hearsay rule as provided in Fed. R. Evid.
803(6). A properly introduced, authenticated business record that meets the standards of the Federal Rules of
Evidence ordinarily is nontestimonial and will not violate the Confrontation Clause. Assuming the proper
foundation is laid, these records are likely admissible. See United States v. Graham, 846 F. Supp. 2d 384, 389
Page - 17
(D.Md. 2012) which stated that historical cell site location records are “created by cellular providers in the
ordinary course of business.”
When a cell phone is in idle mode, it regularly communicates with cell towers in its network. Using
radio frequency waves, the phone tries to determine which cell tower has the strongest signal. In urban areas,
cell towers are often located on top of buildings or water towers. A cell tower emits radio frequency waves in
all directions, providing cell phone coverage in a 360 degree radius around the tower. Three antennas typically
comprise each tower; each antenna covers a 120 degree area. When a cell phone places a call, it typically
connects to the tower in its network with the strongest signal. This is usually the tower nearest to the phone,
although a variety of factors including physical obstructions and topography can determine which tower
services a particular phone. Once the call reaches the tower, this interaction is recorded by the network
provider. The call then proceeds to a mobile switching center, which may choose to reroute the call to a
different tower based on network traffic. The call may also be rerouted to a different tower if the caller changes
location during the duration of the call. These data are recorded by the network and maintained as call data
records.
To determine the location of a cell phone, law enforcements agents or their experts generally identify
(1) the physical location of the cell sites used by the phone during the relevant time period; (2) the specific
antenna used at each cell site; and (3) the direction of the antenna’s coverage. Then they estimate the range of
each antenna’s coverage based on the proximity of the tower to other towers in the area. This is the area in
which the cell phone could connect with the tower given the angle of the antenna and the strength of its signal.
They try and determine where the coverage area of one tower will overlap with the coverage of another. These
facts are then used to estimate then general location of a cell phone within a specific time period.
Admissibility Of Testimony Concerning How Cellular Networks Operate
Whenever a person makes a call with a cell phone, the call routed through a cell tower located at a fixed
geographic location. Cell service providers keep records of which cell tower processed a call. This is the
information that prosecutors attempt to use the establish the location of the cell phone and its user. It is easy to
see and understand how this type of evidence can be used by the prosecution to place the defendant at the place
and time of the offense charged. The accuracy and precision of this evidence varies on a case by case basis.
Generally the admission of this type of evidence interpreting cell site geolocational data requires expert
testimony. However, some courts have allowed law enforcement officers to provide lay opinion testimony as to
Page - 18
how cellular networks operate or the use of call data records to determine the location of a cell phone. United
States v. Feliciano, 300 F.App’x 795, 801 (11th Cir. 2008).
The defense should request a hearing under Federal Rule of Evidence 702 and Daubert to determine
whether the prosecution’s proposed evidence and analysis are admissible. The prosecution must show that their
expert is qualified to testify about how cellular networks operate and the accuracy of geolocational data
offered to link the accused to the crime.
Legal Standard
The admission of lay witness testimony is governed by Federal Rule of Evidence 701,
which limits lay opinion testimony to that which is
(1) rationally based on the witness’s perception;
(2) helpful to clearly understanding the witness’s testimony or to determining a fact
in issue; and
(3) not based on scientific, technical, or other specialized knowledge within the
scope of Rule 702. Fed. R. Evid. 701.
The admission of expert opinion testimony is governed by Federal Rule of Evidence 702 and Daubert.
See Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 893 (7th Cir. 2011). Rule 702 states that a witness who is
qualified as an expert by knowledge, skill experience, training or education may testify in the form of opinion or
otherwise provided that “(1) the expert’s scientific, technical, or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in issue; (2) the testimony is based on sufficient facts or
data; (3) the testimony is the product of reliable principles and methods; and (4) the expert has reliably applied
the principles and methods to the facts of the case.” Fed. R.Evid. 702. To admit expert testimony under this
rule, the court must determine that (1) the witness is qualified; (2) the expert’s methodology is scientifically
reliable; and (3) the testimony will assist the trier of fact to understand the evidence or to determine a fact in
issue. Myers v. Ill. Cent. R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010).
In Daubert the United States Supreme Court set out four factors the court may consider
when assessing the reliability of an expert’s methodology, including (1) whether the theory is
based on scientific or other specialized knowledge that has been or can be tested; (2) whether the
theory has been subjected to peer review; (3) the known or potential rate of error and the
existence of standards controlling the theory’s operation; and (4) the extent to which the theory
is generally accepted in the relevant community. Daubert, 509 U.S. at 593–94; see also Kumho
Tire Co. v. Carmichael, 526 U.S. 137, 151, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999).
The Rule 702 inquiry “is a flexible one.” Daubert, 509 U.S. at 594. As such, “[d]eterminations on admissibility
should not supplant the adversarial process; ‘shaky’ expert testimony may be admissible, assailable by its
opponents through cross-examination.” Gayton v. McCoy, 593 F.3d 610, 616 (7th Cir. 2010). The proponent of
the testimony bears the burden of proving that the proffered testimony meets these requirements, and the
Seventh Circuit grants the district court “wide latitude in performing its gate-keeping function.” Bielskis, 663
F.3d at 894 (internal quotation marks and citation omitted).
Page - 19
The relevancy of this evidence and the expert’s opinion is primarily based on the premise that a cell
phone connects to the tower in its network with the strongest signal, and the tower with the strongest signal is
usually the one closest to the cell phone at the time the call is placed.
This is the general rule, there are a variety of factors that determine the tower to which
a cell phone will connect. See Aaron Blank, The Limitations and Admissibility of Using Historical Cellular
Site Data to Track the Location of a Cellular Phone, XVIII RICH. J.L. & TECH. 3,
http://jolt.richmond.edu/v18i1/article3.pdf. (identifying factors that affect a tower’s signal strength to include
the technical characteristics of the tower, antennas and phone, environmental and geographical features and
indoor or outdoor usage.
In my opinion, specialized knowledge is required to understand and testify about factors affecting a cell
phone’s ability to connect to a particular tower is necessary to qualify as an expert under Rule 702 and Daubert.
Part IV
iPad & iPhone For The Defense
I purchased an iPhone four years ago. I had never owned or used an Apple computer prior to getting an
iPhone. The iPhone was also the first smart phone that I had owned or used. I immediately liked the device and
I particularly liked having both contact information and calendar information for my law practice on the iPhone.
I know that there are other smart cell phones that are on the market, but the iPhone is the one that got my
attention. As a real baby boomer, the big and well lit screen and the ability to select type size helps me see and
read the information without reading glasses.1 My first iPhone really helped with me in my law practice. The
iPhone contact data base essentially allows me to have my entire practice in the palm of my hand. If I need to
call a client, I always have all of their contact information with me. I can call clients, text message them, or
send an email to them regarding their case using the iPhone. I have also used the iPhone camera to photograph
a courthouse and text the image to a client who is unfamiliar with the building and its location. Additionally I
can access the iPhone’s calendar should I need to inform a client the date of their next court appearance.
1
My father was a pilot in W.W.II. He came home from the war in December, 1945 and I was born on September 9, 1946.
Page - 20
I began using the iPhone and its software apps to help me with clients and cases in ways that I never
imagined. So when the original iPad hit the market, it was a no brainer. I purchased an iPad and later an iPad
2. The iPad has proven to be a great tool for use in my practice.
I have been on the CLE lecture circuit for 30 years and wanted to put together a presentation for
criminal defense lawyers demonstrating how to use the iPad and iPhone in their respective law practices. I
began calling my presentation for CLE seminars iPad & iPhone For The Defense because these two devices
and related software applications are particularly helpful to criminal defense attorneys.
Today I keep all of my client information on my iPhone, iPad, and office desktop computer. My
desktop is a Windows computer. It is easy to transfer contact and calendar information from the desktop to the
iPad and iPhone. I can also prepare PowerPoint presentations that I intend to use in a trial on the desktop and
then easily transfer the PowerPoint to my iPad using the iTunes interface. I backup my data and files using a
cloud computing service such as Dropbox™ along with an external hard drive.
Trial Presentation Apps For The iPad
The following information pertains to my favorite iPad software applications that have really helped me in my
practice. I hope others find these apps as useful and helpful as I have.
Page - 21
The iPad was released in April, 2010. I purchased my iPad on May 17, 2010. I now use the iPad
instead of my Palm Pilot to track and manage court settings, appointments, and contact information when I go
to court. When I return to the office, I sync the calendar and contact information with my desktop computer
using the iTunes interface. However, my favorite use of the iPad and that which I feel would be most helpful to
other criminal defense attorneys is using the iPad for PowerPoint presentations at trial. The Keynote app is
Apple’s version of PowerPoint. PowerPoint files are can be used in Keynote. You can also prepare
presentations using just the iPad’s Keynote applications.
I no longer use a laptop for courtroom PowerPoint presentations but instead use the iPad. The iPad is
light, easy to carry, and turns on instantly. You can view the current PowerPoint slide on both the iPad screen
and on the courtroom equipment. The iPad is compatible with all of the courtroom projection systems that I
have encountered in both State and Federal court. You can prepare a PowerPoint using Windows software and
easily transfer it to the iPad. If necessary, you can edit the transferred PowerPoint using the iPad’s Keynote
software.
PowerPoint Presentations & The iPad
You can use your iPad to show your PowerPoint presentations in court. I recently picked a jury in a
DWI case and used my iPad connected to the courtroom projection system to show my voir dire PowerPoint
presentation to the jury. The following picture shows how I connected the iPad to the court projection interface.
You need the Apple iPad VGA adapter and a male to male VGA cable as shown below. You can buy the VGA
video cable on line at www.vpi.us/cable-vga.html. A 6 foot cable should be fine.
Page - 22
VGA Video Cable – Male-Male
iPad Screen During PowerPoint /Keynote Presentation
You will need to load the Keynote application on to your iPad. Keynote is Apple’s version of
PowerPoint. The KeyNote application will convert, read, and display PowerPoint presentations on the iPad.
The following graphic shows how you use the iTunes interface to get your PowerPoint file into the Keynote
application on your iPad. Open iTunes and then click on the Apps tab. Scroll down to the File Sharing section
of the iTunes interface. This section lists the applications which can transfer documents of files between the
iPad and your computer.
Page - 23
Next click on Keynote under the Apps column. This will bring up the Keynote Documents window as
shown above. Click on the Add… button a window will open from which you can locate the PowerPoint
presentation you wish to import into your iPad as shown below.
Highlight the PowerPoint file that you wish to add and click the Open button. This will transfer the file
to the Keynote Documents column. Connect your iPad to your computer and open the Keynote application.
Touch the download icon as depicted in this image and then press the Copy from iTunes button.
Page - 24
Select the PowerPoint presentation you want to import from iTunes from the popup window as shown
below. In this example I am copying the SouthTexas PowerPoint file.
The selected PowerPoint presentation will be imported into your iPad.
Page - 25
Equipment For The Courtroom
Most courtrooms today are equipped for computer and video projection and have projectors and screens
installed for use in trial. For presentations in courtrooms that do not have A/V equipment installed I suggest
purchasing a projector. The Epson MegaPlex MG-850HD iDevice projector for around $700.00 is a new
product that is compatible with both the iPhone and iPad. The big improvement for this projector is the iDevice
dock and it has built-in 10 watt stereo speakers that deliver quality audio.
Page - 26
I have used a software program called Trail Director for presentations. Trial Director is a powerful
software program however it is expensive and there is a learning curve that can be a problem. Exhibit A and
TrialPad are also very good presentation software applications for the iPad that are simple to use and affordable.
I now use Exhibit A for organizing and presenting demonstrative evidence exhibits during trial. Price of this
application is $ 9.99. It is a great application for presentations in the courtroom. You can import documents
using Dropbox, iTunes, Wi-Fi, FTP, or email. Importing using Dropbox is probably the best method. Exhibit
A supports JPEG, TIFF, GIF, and PNG images as well as PDF documents and MPEG-4 and .mov videos.
However, in my experience large files (in excess of 3 mb) do not work well. The Trial Pad App works better
with large files but the Trial Pad App is expensive. Both of these presentation apps allow you to present your
message with power, clarity, and precision. Exhibit A also works in conjunction with the Dropbox application.
I believe that Exhibit A would be adequate for most trials.
After you install Exhibit A on your iPad, link the Exhibit A application with Dropbox as shown in the
following graphic.
Page - 27
Once you link Exhibit A with your Dropbox account, you can begin importing PDF files, photos, and
videos into your case project folder as shown below. Unfortunately this application does not support .wav or
audio files at this time.
I organized my project using specific folders for photographs, PDF document files, and videos. I would
import the desired files by pressing the “Imports” button and open them in the main project screen. Next I
organize the potential exhibits by copying the files into one of the named folders.
Page - 28
Exhibit A allows you to open documents and display them to the court and jury using a projection
system. The exhibits can be annotated on the fly using the tool bar for issue clarification as shown below and
displayed to the court or jury.
Page - 29
The following graphic shows a PDF file exhibit of a motion and how you can use the rotate button to
position the document as you desire.
I have just begun to use the interesting and powerful trial presentation. I will modify this paper as a
learn more about Exhibit A.
TrialPad iPad Presentation Application
Page - 30
TrialPad is another presentation application developed for the iPad. It is priced at $ 89.00 which is high
for an iPad app. However, it is a powerful tool developed for trial attorneys to organize, manage, and
documents and photographs in many different file types for quick and easy presentation at trial. The application
organize, and sort important documents, and to annotate and present evidence to a judge or jury as shown in the
following graphic. Documents can be imported into TrialPad using email, iPad Photos, iTunes, and Dropbox.
It is more expensive than Exhibit A but probably worth the price.
TrialPad can highlight or annotate documents and photographs with colored pens. It can also create call outs
and zoom in to a particular area of a document as necessary. The following graphic shows an accident report
from an intoxication manslaughter case. The first graphic image shows how you can highlight an area of a
Page - 31
document or report using the yellow highlight feature. The second graphic shows how you can create a call out
for special attention to an area of your exhibit.
Yellow Highlight Annotation
Call Out Feature
Page - 32
Side By Side Document Comparison
More Favorite iPad Applications
Cloud Computing
Cloud computing is another term for the internet and which basically means uploading and accessing
your files on the internet and accessing your files or perhaps sharing them with others. You can upload your
files or store your files on a password protected remote server. The advantages of “Cloud Computing” are that
it is an affordable way protect your files from local damage, you can access your files from a smart phone, iPad,
tablet computer, or desktop computer from virtually any location in the world where you have an internet
connection. Additionally, you can share your files with others. Most of the cloud services offer some storage
Page - 33
capacity free of charge. Dropbox, for example, offers two (2) gigabytes for free which is generally enough for
most people. There is the possibility of a data breach with these services so protect your password.
Dropbox is a web-based cloud storage service that enables users to store and share files. I really like
using the Dropbox application on the iPad in conjunction with another application called GoodReader.
Dropbox is an application that allows you to link your office computer with your iPad using a single folder.
When you install the Dropbox Desktop software on your office computer, the software creates a folder named
My Dropbox and watches this folder. It will sync any changes or additions to the office computer My Dropbox
folder to what I call a server in the clouds. You can them retrieve the files you have in the office My Dropbox
folder into your iPad. For example, I have a folder named Clients in the desktop computer My Dropbox folder
as shown in the following graphic image.
I open additional folders within the Clients folder named after each client. I then save various files,
documents, and images in the particular clients folder for later access via my iPad. I generally use the Adobe
PDF format for most of the files that I save in a client’s individual folder as shown below:
Page - 34
GoodReader
I use the Dropbox application in conjunction with another application called GoodReader. GoodReader
is a file viewer that can read PDF files, Word, and PowerPoint files. Additionally, GoodReader allows you to
manage files by pressing Action buttons in the programs interface. I use these two applications in the following
manner:
I retrieve a file such as a client’s Presentence Report in a federal case that I have in PDF format into my
iPad using Dropbox. Next I open the PDF file containing the report in GoodReader as shown in the following
graphic.
Page - 35
I save the PDF file in a folder in GoodReader with the client’s name. This allows me to have access to
client’s important documents instantly using my iPad the the DropBox and GoodReader applications.
GoodReader also allows you to create bookmarks within your PDF files. This was helpful in bookmarking the
client’s PSR for use at sentencing.
The National Association of Criminal Defense Lawyers has launched its official mobile app the NACDL
Edge. With the app, “Liberty’s Last Champion” ™ keeps you on the leading edge of criminal defense news and
continuing legal education (CLE) opportunities. NACDL members can also search our Member-to-Member
Directory, read the latest issue of The Champion, and access our Experts Database.
Features
This app provides easy access to the latest news of interest to criminal defense attorneys. The following
graphic is the initial NACDL Edge interface. I inserted the red arrow pointing to a newspaper article about
Grand Juries.
Page - 36
You can select this article by touching the iPad screen and the app will take you to the article as shown
in the following graphic:
Page - 37
The app makes it easy to find leading CLE seminars for criminal defense lawyers as shown in the
following graphic image:
Page - 38
The app also facilitates searching for fellow NACDL members by name or location as show in the
following graphics.
Page - 39
The search located the following information for Edward Mallett:
Ed Mallett is a past NACDL President and has been my “go to attorney” in Houston, Texas for 30 years.
Page - 40
I particularly like the fact that the NACDL Edge app allows you to read the current issue of the
Champion. I have always thought that we should use technology to search for and find past Champion articles.
Selecting and pressing on one of the listed articles allows easy access to the article as shown below:
Page - 41
Page - 42
The app also allows access to an Experts Database in a wide variety of areas. I did a search for a cell
phone expert and found a person who helped me with a case in state court.
Page - 43
Remote Access With An iPad or iPhone Application
(LogMeIn – Access Your Office Computer From Your iPhone or iPad)
LogMeIn is another iPhone and iPad application that I really like. It allows me to access my computer
from my iPhone. I used it recently to look up an indictment that was in PDF format on my office computer
while I was in a conference with a client who was being held without bond. An issue came up about an element
of the offense and it was helpful to review the document without having to leave the jail. The following screen
capture snap shot taken from the iPhone shows the copy of the indictment as it appeared on my iPhone.
This next screen snap shot is taken from my iPhone and shows me accessing my office computer using
LogMeIn.
Page - 44
I find that the LogMeIn application is much better on the iPad because of the larger screen size. The
following screen snapshots show LogMeIn on the iPad as I am accessing my desktop computer from home.
iPad LogMeIn Opening Screen
Page - 45
iPad LogMeIn Screen When Connecting To Remote Computer
iPad LogMeIn Interface
Page - 46
Actual Screen Snapshot Of My iPad Screen
When Connected To My Office Computer & Reviewing Document Opened In
Microsoft Word
http://www.soonr.com
The Soonr iPhone and iPad application is one of my favorite apps and very useful. This application
works on the iPhone in conjunction with the Soonr Desktop Agent which you install on your desktop or office
computer. These two programs work together to allow you to store up to two (2) gigabytes of information on
the Soonr server free of charge. You can store larger amounts or data for a reasonable fee. Click on the
Page - 47
Settings button to begin the process of selecting folders to upload to the cloud server. A graphic image of the
Desktop Agent appears below:
I select certain folders from the Desktop Agent’s Manage Backups window for uploading to the Soonr
cloud server. I can then retrieve these documents using my iPhone or iPad when I am out of the office. I have
found this application helpful when I need to either view a document, photograph, etc. or when I want to email
a document to another attorney. This is a great program and I strongly suggest you give it a look.
You select which folders you want to upload to the cloud server using the desktop agent’s Manage
Backups window. You select the folders for backup by clicking in the square box that is next to the folder. In
the graphic below I have selected the ComputerPaper for uploading as indicated by the green square. The
Manage Backups window is depicted below.
Page - 48
The following images show the login procedure for Soonr from the iPhone, the initial Soonr interface
that allows you to view documents you have uploaded from your desktop to the Soonr server, and the last image
is the Actions page which offers you the options of viewing the document, emailing it, etc.
Getting Paid !
Works On Apple and Android Operating Systems.
Page - 49
The Square iPhone or iPad application by Square, Inc. is probably the most important software app
because it can help your clients pay for your legal services and thus keep the office doors open. This
application is also works on the Android operating system.I had thought about getting a credit card merchan
account but was put off by the process. My wife and I were at an art fair in Dallas and bought a blown glass
piece for our collection. We paid using my credit card and the artist simply swiped my card using what I now
know to be the Square card reader that was attached to his iPhone. The purchase amount was entered and I
signed on the iPhone screen with my finger. I instantly received an emailed receipt for the purchase on my
iPhone. I was quite impressed and signed up for a Square account that night from my home computer. I
received the Square card reader within a few days and recorded my first payment shortly thereafter. I know that
attorneys will find this application helpful.
Square is the simplest way to accept credit cards. The Square application allows you to accept credit
card payments quickly and easily using the iPhone or iPad or Android OS. Square charges a 2.75% fee for their
service. The card reader is free and there are no monthly fees or other hidden costs. Square currently accepts
US-issued Visa, MasterCard, American Express and Discover cards, all with the same flat rates.You begin by
creating a Square account using the company’s web page. After you create your Square account, it is a simple
process to link your account with Square so that your charged funds can be deposited following the transaction
with your client. The first fee that I charged using Square was deposited in my law firm account within a day
and I was notified of the direct depoist by an email from Square. I received the following messages from
Square when the funds were deposited.
Page - 50
The following web screen snapshot from the Square web page shows how simple it is to begin using
Square to have clients pay your fee with a credit card.
The following graphic explains how you link your bank account with Square so that funds are deposited
directly into the account.
Page - 51
To have your fee charged to the clients credit card you enter the fee amount on the initial Square
application screen using the iPad’s virtual keyboard. The client signs on the screen using their finger as shown
in this graphic.
The next step is to send the client a receipt for the payment as shown on the following graphic.
Page - 52
This application has been very helpful for me in my practice and has been an added convenience
for clients. I think you will find this use if either the iPhone or iPad and the Square app helpful.
Page - 53
Cheating Spouses Beware!
GPS Trackers , Webcams and Cell Phone Spyware Will Testify to Your
Cheating Heart!
By Sharon D. Nelson, Esq. & John W. Simek © 2012 Sensei Enterprises, Inc. When tears come down,
Like falling rain,
You'll toss around,
And call my name,
You'll walk the floor,
The way I do,
Your cheatin' heart, will tell on you...
‐ Hank Williams Just Google the words “cheating spouse” and you’ll enter a whole new universe. One element of that universe is technology designed to prove that a spouse (or lover) is cheating. The technologies we see most often in our digital forensics practice are GPS trackers, webcams and cell phone spyware. Family lawyers are scrambling to master the essentials of these technologies, which often violate the law. They may find themselves advising clients not to skirt the law or warning them that their spouses may be spying on them and alerting them to the signs. It is dizzying how often a spouse takes the Fifth Amendment in depositions or at trials these days. We’re going to try to give you the essence of how these new technologies work and what the legal implications of their usage may be. Cell Phones
Let’s start with cell phones. Most people think that what they do with their cell phones or smartphones is highly private. It must be since the phone is normally always with you. All those text messages you are sending to your paramour must be private. Not so fast. Like the majority of electronic communications, once you send the message (text, e‐mail, etc.) it is out of your control. There is nothing to stop the recipient from sending your text to someone else without your knowledge. Even if you trust the recipient (because your paramour would never betray you, right?), perhaps you’re paranoid about getting caught and delete all the messages after you have read and responded to them. Do you really think the messages are gone, never to be recovered? Guess again. The cellular carriers are now capturing the contents of your text messages and storing them for a period of time. It is unclear how long each carrier maintains the content, but seven to thirty days seems to be the current retention period based on court reports. You may have to get a court order to get the contents, but the point is that the data exists. In addition, mobile forensics may be able to recover deleted text messages from the device itself and those messages may go back much, much longer. On rare occasions, we’ve recovered deleted text messages that were two years old. It can be a little expensive to forensically analyze a mobile device, but most scorned spouses are willing to pay any amount of money to get the data. There may be some legal obstacles for getting access to the data, especially if you are not the owner. However, be aware that some smartphones hold a tremendous amount of data without the user’s knowledge. The iPhone is particularly evidence rich. Just like our friends in law enforcement, we do a little “happy dance” when an iPhone comes into our digital forensics lab because we know it’s likely to contain a motherlode of evidence.
Another potential source of data could come from the installation of spyware on the mobile device. Understand that it is probably illegal under several federal and state laws, particularly the wiretap laws, to install spyware on a mobile device, but a cheating spouse is a common target for the installation of the monitoring spyware and spouses tend to have no guilt about spying on someone they think is cheating, irrespective of the law. There are many companies that manufacture spyware to be installed on mobile devices. Their functions and cost vary, but you can get some pretty good ones for around a hundred dollars. That will typically get you a subscription to gather data from the phone for a period of time (12 months or so). Probably one of the most powerful products on the market is FlexiSPY, which costs $350, but is very feature rich.
At the present time, you have to have access to the physical phone to install the software. We’re guessing that future versions will have the ability to be remotely installed when the user clicks a link in an e‐mail or text message. We think most attorneys will be shocked at the tremendous power of the mobile spyware products. The base features include the ability to listen to the phone calls, capture text messages and have real‐time access to the location information via GPS. The higher end products can also be remotely configured via text messaging. Probably the scariest feature is the ability to remotely activate the microphone on the phone, effectively turning it into a bug. Imagine having lunch with several friends while your phone is on the table and not knowing that your spouse has activated the mic and is listening in on the entire conversation without your knowledge.
Many people have phone calls with their lovers while driving – and there too the spouse may be listening. The idea of having a private eye sweep your house for bugs has become outmoded in a world where many device can act as bugs.
You don’t necessarily have to install spyware to listen in on conversations. Sherri Peak of Kirkland, WA was being stalked by her husband after they broke up. He installed a GPS locator device in the dashboard of her car, but also listened to her conversations by installing a cell phone with the ringer turned off. He wired the cell phone to the car’s battery so the phone would remain charged and set the phone to automatically answer when called. This gave him the ability to listen to any in‐car conversation by merely calling the cell phone. Like so many victims, no one believed her story. Finally, two members of the Belleview police department had her car inspected – they almost gave up after two hours of searching. Then one officer thought to pop open the dashboard cover – and there was the cell phone and GPS tracker. As he commented, ”it was like – wow – she was right.” Robert Peak was sentenced to eight months after pleading guilty to felony stalking in 2006.
GPS Devices
GPS tracking devices are another often utilized technology when dealing with cheating spouses. Be sure to check your state laws to see if you can legally install a GPS tracking device. As an example, in our own state of Virginia, it is illegal to install such a device on a vehicle where you do not have an ownership interest. However, a lease of a certain duration can constitute an ownership interest. State laws on this issue vary widely (and some states have no laws on this matter at all), so be very careful when counseling a client.
There are two types of GPS locators. The active locator technology monitors the device location using GPS and typically transmits that data using a cellular network. Passive GPS devices merely record the device location and do not transmit the data. You will then need to download the data from a passive device for analysis. Expect to pay a few hundred dollars for the device and service depending on the type of device and capabilities.
Active GPS locators can be configured to send you alerts (text or e‐mail) whenever the vehicle moves or goes outside a “safe” zone. You may only be interested in location information during certain hours of the day or on the weekend. You may even know the address of the paramour and want to log the time and duration of the visits. Besides configuring alerts, some manufacturers provide a website to track the device. You log on to the website and can see where the device is currently and even the history of its activity.
Don’t think that you have to purchase a piece of equipment that is specifically used for tracking. Many smartphones are also capable of GPS tracking. Some providers even offer services to track cell phone location. Although these services are intended to locate family members, it is not uncommon for one spouse to activate location services on the phone of the other spouse. When Apple released iOS 5 for the iPhone 4S, there was a “Find My Friends” application available to meet up and track friends. One enterprising man in New York decided to buy his soon‐to‐be divorced wife an iPhone 4S and configured the “Find My Friend” app before giving it to her. He was extremely grateful that Apple helped prove that she was meeting her lover at his place uptown and even posted his appreciation on the Net.
As we tell family attorneys all the time, always instruct your clients NEVER to accept a smartphone as a gift – who knows what additional “gifts” may have been loaded on it before it was given? Location services for laptops can also be used as tracking devices. Apple provides the “Find My iPhone” app, which can be used on iPhones, iPads, iPod Touch or a Mac. You must configure the application first in iCloud, but then you can see the device location on a map once you log into your account. Don’t have an Apple product? You can still get a sense of where a device is by using a product like LoJack for Laptops by Absolute Software. Location information is available whenever the laptop is connected to the Internet so it is much less accurate (or available) than a device that has GPS capability. Most folks will opt for the cell phone to get location information rather than count on the intermittent location information from a product like LoJack for Laptops. In a society where cheating is rife, we are inclined to want all the particulars, right down the precise GPS coordinates.
Webcams
Finally, webcams are increasingly being used to spy on people without their knowledge. In most states, they are illegal in any area where nudity may be expected, typically bathrooms and bedrooms. In the early days, webcams were cumbersome and difficult to hide. They needed a power source, were fairly large and needed a hard‐wired connection to the Internet. Those days are over. The modern webcam can be battery powered and connects to the Internet wirelessly. The cameras are so small that they can appear as jewelry on a Barbie doll. Imagine that Barbie’s necklace really isn’t a faceted gem, but a low light, high resolution camera that is spying on you. And yes, there is a “webcam Barbie.”
Some webcams are used as surveillance devices ‐ innocently to keep an eye on your pets while you are at work or, more deviously, to check on anything that may be going on at home. They can be configured to send you alerts (text, e‐mail, etc.) when motion is sensed. Since they are connected to the Internet, you can use your smartphone or office computer to see what motion triggered the alert. In addition, software is available to begin the recording of the video stream when certain events occur or during specific times. In our family law cases, we see webcams being placed in a bedroom in hopes that they will capture the adultery in living color. The cameras are typically placed in stuffed animals or inserted into book bindings. Since they communicate using WiFi there is no need to hide cables and wires from sight. Just put the stuffed animal on a bench or shelf with the camera facing, customarily, your bed.
Once the webcam is connected to the Internet, it can be accessible from any computing device using a web browser. You won’t be able to maintain any video history unless you have a computer configured to save the video capture. The exceptions are those webcams that have internal memory. Typically, you would insert a flash drive in the device and it would record the video to the removable media. The amount of video recorded will depend on the capacity of the flash drive and is normally limited to several hours. It is certainly better if the webcam can be configured to record only when motion is sensed, thereby maximizing the amount of recorded video.
Legal Thoughts
When electronic communications are intercepted, the wiretap laws (state and federal) kick in and they almost all have an exclusionary clause so the evidence will not be admissible. However, evidence from GPS trackers and webcams, while often illegal, generally is not subject to an exclusionary clause (but check carefully in your state to be sure), so it will come in – but the price is that the person who has violated the law may be subject to criminal or civil actions (or both).
Final Words
Since cheating is unlikely to go out of style, the tools used to prove that you have a cheating heart are likely to become increasingly sophisticated. Somehow, the old days of Perry Mason sending Paul Drake off to a motel to observe the cheaters enter and leave the “no‐tell motel” seem both quaint and rather innocent. If you conclude, after reading this, that there is almost no way to carry out an affair in secrecy, you’re probably right – that is one of the unanticipated side effects of living in the digital era. Sharon D. Nelson, Esq. and John W. Simek are the President and Vice President of Sensei Enterprises, Inc., a digital forensics, legal technology and information security firm based in Fairfax, Va. (703) 359‐0700 (phone); (703) 357‐8434 (fax); sensei@senseient.com; www.senseient.com. ELECTRONIC SPYING AND
TRACKING SPOUSES IN
DIVORCE CASES
What’s Legal in the Digital World?
Navigating the Legal and Ethical Challenges of Evidence Obtained
Using Spyware, GPS Trackers, Wire Taps, Web Cams, Social Media
Account Interception, and More
Presentation By: Henry S. Gornbein
40900 Woodward Avenue, Suite 111
Bloomfield Hills, MI 48304
248/594-3444
DivorceSourceRadio.com
hgornbein@familylawofmichigan.com
Henry@divorceonline.com
Another interesting case is the following article:
What Was He Thinking?
Recently, I was watching Good Morning America when they
featured a video of a divorce attorney breaking into the home of his
client’s estranged husband. Unbeknownst to the divorce attorney, who
was not a young attorney but looked like a man who had been
practicing law for a number of years and was in his sixties, was shown
kicking the rear door down to get into the house. Then he entered along
with his client, the estranged wife, removing certain items which
apparently the estranged husband refused to return to her. He is shown
giving his client a hug as they go through the process of removing the
items.
3
The husband then drives up and the attorney leans over the
car and says to the husband, what are you going to do to me; are you
going to do call 9-1-1?". Unbeknownst to the attorney, the entire house
and exterior property were covered with surveillance cameras so that
everything was on tape.
My question is, what was he thinking? What was he doing?
He is now facing criminal charges and he can very possibly be
disbarred. He should be punished.
4
 An attorney has a duty to advocate for his/her client but this situation is
clearly beyond the bounds of advocacy.
 Clearly an attorney should not commit a criminal act such as breaking
and entering and removing property for a client.
What was this guy thinking or was he?
I know that people get
caught up in the heat of the emotions during a divorce.
But a good
attorney is going to calm things down, not heat things up. We have a court
system. We have a family court with judges and referees who are there to
assist people with issues such as this one. Attorneys should not break the
law. I don’t care what a client is asking of you, you don’t break into
someone’s house!
5
What are the remedies? This attorney, who looks like he has
been practicing law for a long time, knew very well that he could file a
motion with the court. He could bring the husband before the judge to
compel the return of the property. You don’t break into a house.
We have laws, rules and procedures that any experienced
attorney knows. If the attorney is faced with a position that he or she
must break the law to satisfy a client, it’s time for the attorney to
withdraw.
6