In recent years, the government has increasingly turned to hacking as an investigative technique. Specifically, the Federal Bureau of Investigation (“FBI”) has begun deploying malware: software designed to infiltrate and control, disable, or surveil a computer’s use and activity.

White collar lawyers must weigh various considerations in determining how to obtain mobile phone data or limit the government’s access to data. When can the government compel a client to provide the passcode to a mobile device? What is the significance of whether an executive’s mobile phone is owned by the executive or the corporation? This article provides tips about obtaining, protecting, preserving, and reviewing data on mobile phones.

Defense lawyers increasingly are dealing with cellphones and location issues. Per Call Measurement Data files provide an estimate of the location of a cellphone. (Call Detail Record files, on the other hand, provide the location of the cell tower that served a call.) Richard Miletic explains the technology used, the error rate, and the basis to exclude PCMD under Daubert.

Cellphone companies keep records of activity on their networks, including the calls, texts, data, and cell sites used for each call. Was the cellphone associated with the defendant in the area when the crime was committed? Knowing where the defendant was at a particular time is an essential piece of evidence that can paint a picture of innocence. When the prosecution produces a map to tie a cellphone to a location, what should the defense team look for when analyzing the map?

for Criminal Defendants

Wholesale destruction of communications evidence on agents’ cellphones and elsewhere is something that criminal defendants and their lawyers face with shocking regularity.

The instant Indictment and a companion Indictment accuse 25 people, mostly young, overwhelmingly people of color, and many of them heroin addicts, of a conspiracy conducted essentially by communication through cell phones.

Whether a defense attorney in an internal investigation represents an employer or an employee, it is imperative that the attorney is prepared for the issues that arise when collecting data from a personal smartphone. The authors outline the nearly infinite universe of potentially collectible data that exists within smartphones. Also, they provide an overview of the rights and interests of the employer and employee. Finally, the authors provide a cautionary note about the scope of internal investigations in which a private company becomes a de facto arm of the government.

Richard Miletic discusses the types of data that can be extracted from a cellphone (including call history and accessed Wi-Fi networks) and from cloud accounts (including texts, emails, and location history). In addition, he lists the data stored by phone companies (location of serving cell tower and estimation of target phone location).

to Conduct a Forensic Search of a Digital Device at the Border

The rise of electronic devices like laptops and smartphones brought new questions to the border search doctrine. Are electronic devices like vehicles, which require no reasonable suspicion to warrantlessly search at the border? Or are digital devices more like invasive searches of a person? Does the type of search – manual or forensic – require different levels of suspicion to execute?

Smartphones can create a detailed record of what their users have been doing. Wisconsin litigator Peyton Engel focuses on the traits smartphones have in common with general-purpose computers and the implications from a digital evidentiary perspective. He discusses retrieving evidence from smartphones, extracting information from cloud storage, finding evidence of a secret or hidden phone, wearable tech, issuing subpoenas for social media records, and using apps to collect evidence.

A case in the Eastern District of Virginia, United States v. Chatrie, involves a geofence warrant, which is a warrant seeking Google cellphone location data so that the police can identify individuals who were in a particular location during a defined window of time.

Snapchat's Guide for Law Enforcement regarding the required legal processes for obtaining information for users' accounts.

Example Subpoena Language for Call Detail Records.

Digital Forensics Guide Cell Phone Location and Tracking Forensics. 

Compelled cell phone password & seizure materials.