12 006 cell phone forensics

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12 006 cell phone forensics

  1. 1. CELL PHONE FORENSICS Reference Manual Volume No. 12-006 Ohio State Bar Association Continuing Legal Education is a division of the Ohio State Bar Association.
  2. 2. Ohio State Bar Association CLE is a division of the Ohio State Bar Association. CLE speakers are volunteers serving the legal profession in its highest and best tradition and as recommended by the Ohio Rules of Professional Conduct. CLE supports gender neutral language. Unless used to illustrate a specific case, all references to gender should be understood to refer, without bias, to male and female. Books and seminar materials are published as part of the Ohio State Bar Association’s educational services. Authors are given the opportunity to express their individual interpretations and opinions. These do not reflect in any way a position of CLE, the Ohio State Bar Association or its governing board. Chapters written by employees of state or federal agencies are not necessarily statements of governmental policies. © 2012 by Ohio State Bar Association CLE. All Rights Reserved. Ohio State Bar Association CLE publications, oral presentations, video, audio and electronic media programs are provided with the understanding that the Ohio State Bar Association and OSBA CLE do not render any legal, accounting, or other professional advice or service. Attorneys using OSBA CLE publications or orally, visually or electronically conveyed information in dealing with a specific client’s or their own legal matters should also research original sources of authority. The CLE office is located at 1700 Lake Shore Drive, Columbus, Ohio 43204 Mail may be addressed to: P.O. Box 16562 Columbus, Ohio 43216-6562 CLE telephone numbers are: 614-487-8585 800-232-7124
  3. 3. OHIO STATE BAR ASSOCIATION CONTINUING LEGAL EDUCATION The Ohio State Bar Association Mission Statement Our Core Purpose To advance the professional interests of members of the Ohio State Bar Association. Our Core Values Member satisfaction, professionalism, foresight, and quality services and products. Our Goal To make membership in the Ohio State Bar Association indispensable to Ohio Lawyers. THE CLE STAFF Fran Wellington Director fwellington@ohiobar.org Nick Campbell Printing and Fulfillment Assistant ncampbell@ohiobar.org Stephen P. Cianca Assistant Director scianca@ohiobar.org Deanna Freeman Administrative Assistant dfreeman@ohiobar.org Dave Gore Fulfillment and Mailing Assistant dgore@ohiobar.org Jim Hogan Printing Manager jhogan@ohiobar.org Angela D. Howard Data Coordinator ahoward@ohiobar.org Betsy Metzger Administrative Assistant bmetzger@ohiobar.org Lynda Morris Administrative/Conference Assistant lmorris@ohiobar.org Jan R. Rose Meeting/Video Coordinator jrose@ohiobar.org Jeff Ross Printer Rick Slee Assistant Director rslee@ohiobar.org Mark Springer Studio Manager mspringer@ohiobar.org PUBLICATIONS EDITORS Dan Beckley Publications/Website Editor dbeckley@ohiobar.org Kerschie Byerly Senior Publications Editor kbyerly@ohiobar.org John Hocter Publications Editor jhocter@ohiobar.org
  4. 4. CELL PHONE FORENSICS Vol. # 12-006 6.0 CLE CREDIT HOURS Monday, October 22, 2012 Columbus (Live and via Webcast) Live via Simulcast to: Cleveland Fairfield Perrysburg Featuring: Detective Christine Roberts; President, Cellular Recovery Information Specialist, LLC; Columbus Police Department; Columbus This presentation is a live simulcast. If you have a question for the speaker during the presentation, please feel free to submit your inquiry to questions@ohiobar.org with “Cell Phone Forensics” in the subject line or call 1-800-232-7124, and let the operator know that you have a question for the seminar speaker. The Supreme Court Commission on CLE has requested that we advise you that during this seminar, all electronic devices should be muted or turned off. If you must take a call during the presentations, please take the call outside of the room. Out of respect for your colleagues and speakers, the Commission asks that you not read the paper or engage in other activities that may be distracting to your fellow colleagues. Please note scheduled breaks will be offered during the seminar. The amount of CLE credit you are eligible to receive may be reduced if you are absent during the seminar. If you need to leave during the seminar, please make the appropriate deduction from your request for CLE credit. CLE regulations require that we submit requests for credit within 30 days of the date of the seminar or be assessed a late fee. If you leave without completing the appropriate paperwork, your credit will not be reported.
  5. 5. 8:00am Registration 8:30 CELL PHONE EVIDENCE AND FORENSICS 10:00 Break 10:15 CRIMINAL/CIVIL EVIDENCE ON A CELLULAR PHONE 11:45 Lunch (on your own) 1:00 CRIMINAL/CIVIL EVIDENCE ON A CELLULAR PHONE (CONTINUED) 2:00 RETRIEVING THE EVIDENCE 2:30 Break 2:45 RETAINED DATA EVIDENCE 3:30 LEGAL ISSUS 4:15pm Adjourn
  6. 6. Please note that any materials that are not included in this publication or are unavailable as a separate handout at the seminar may be available for download on the OSBA website. To download any available electronic handouts, please visit www.ohiobar.org/handouts.
  7. 7. Please type or print responses clearly. Title: c Mr. c Mrs. c Miss c Ms. c Judge c Professor c Military Officer: First name: Middle: Last name: Prior last name: Ohio Supreme Court Attorney Registration Number (7-digit): Company or firm name: Position: Business street address: P.O. Box City State Zip County Country Home street address: P.O. Box City State Zip County Country Indicate where you want all OSBA information sent: c Business c Home E-mail address (required for access to member areas of the website): The OSBA may use my e-mail address to advise me of product and service announcements: c yes c no Main office telephone: ( ____ ) ______________ Direct line/ext.( ____ ) _____________ Fax number: ( ____ ) ______________ Home telephone: ( ____ ) _______________ Cell phone: ( ____ ) ______________ 2013 Attorney Membership Application January 1 — December 31, 2013 About You and Your Practice What is your primary reason for joining the OSBA? c Access to website/ Casemaker c Discount on OSBA CLE programs c Networking opportunities c Prestige c Publications/information c Recommendation from colleagues c Other:__________________ Language Fluency Fluency in a language means you have the ability to speak, read and write the language with sufficient proficiency to understand and communicate basic legal concepts and circumstances. Under this definition, I am fluent in the following lan- guages (other than English): _________________________ _________________________ c Administrative c Admiralty c Agricultural c Antitrust c Aviation c Banking c Bankruptcy c Civil Rights c Collections c Commercial c Communication c Computer Law c Construction Law c Corporate/Business c Criminal c Disability c Dispute Resolution c Elder Law c Energy c Environmental c Estate Planning,Trust & Probate c Family Law/Domestic Rels. c General Practice c Government c Health Care c Immigration c Insurance c International c Judicial Administration c Juvenile c Labor & Employment c Legal Aid c Litigation c Medical Malpractice c Patent, Trademark & Copyright c Personal Injury c Product Liability c Public Utilities c Real Property c School Law c Securities c Social Security c Sports/Entertainment c Taxation c Workers’ Compensation c Other: _________________ Nickname (if any): ____________________ Law school: ____________________________________ Year: ________ Race (optional): This information is used for statistical purposes only. c American Indian or Alaska Native c Asian c Black or African American c Hispanic or Latino c Native Hawaiian or Other Pacific Islander c White c Other: ______________________________________ Ohio registration status: c Active c Inactive c Corporate c Retired c Registered out-of-state only Date first admitted to any state bar: _________ Which bar: _______________________ If admitted in Ohio, when: ___________ Gender: c M c F Birth date: _____ / _____ / _____ Type of practice currently involved in (full-time): Law firm: Government: Other: c Sole practitioner c Federal c Education c Partnership c State c Banking/Acct. c LPA, LLC, LLP c Local c Corporate c Other: ________________ c Legal aid c Judicial c Other: ________________ c Other: ________________ Current area(s) of practice (limit 5): Are you a certified specialist in any of these areas? c yes c no If yes, which area(s)? _____________________________________________________________ New Members: Join now for 2013 and get the rest of 2012 for FREE
  8. 8. c Elder & Special Needs Law c Environmental Law c Family Law c Federal Courts & Practice c Health Care Law c Insurance Law c Insurance Staff Counsel c International Law c Judicial Administration & Legal Reform c Juvenile Law Committees - free c Antitrust Law..................................$10 c Corporate Counsel............................$3 c Estate Planning,Trust & Probate Law................................$10 c Intellectual Property Law..................$4 c Labor & Employment Law.............$10 c Litigation........................................$10 c Real Property Law............................$6 c Senior Lawyers................................$10 c Solo, Small Firms & General Practice............................................$10 c Women in the Profession................$10 c Young Lawyers................................$10 To join an OSBA section, check the proper box and indicate the total section dues in the "Total Dues and Payment" box below. Section Dues Please indicate your category: Dues Active Attorneys/Judges: c First admitted to practice law in any state in 2007 or earlier ................................... $305 c First admitted to practice law in any state from 2008-2012..................................... $155 c Practicing outside of Ohio and admitted in 2007 or earlier..................................... $240 Government Attorneys*: c First admitted to practice law in any state in 2007 or earlier ................................... $240 c First admitted to practice law in any state from 2008-2012..................................... $120 c Practicing outside of Ohio and admitted in 2007 or earlier..................................... $185 * Must be employed by a local, state or federal government agency; a legal aid society or non-profit legal assistance program; or a public defender’s office. Member must certify that the position is the only source of earned income. (Judges, federal magistrates, elected officials or persons appointed to elected office are excluded from this definition.) Retired/Inactive Attorney: c Attorney registered inactive or retired with the Supreme Court of Ohio, or registered out-of-state only.................................................................................. $185 2013 Dues $ Total section dues $ **Ohio LAWPAC (optional) $ Total amount enclosed $ c Check enclosed made payable to the OSBA. c Pay by credit card: c MasterCard c VISA c Am. Express Account number: Exp. Date Signature Total Dues and Payment Membership Dues Categories 15.00 c Access to Justice c Administrative Law c Agricultural Law c Animal Law c Aviation Law c Banking, Commercial & Bankruptcy Law c Construction Law c Corporation Law c Criminal Justice c Education Law c Media Law c Military and Veterans' Affairs c Natural Resources Law c Negligence Law c Paralegals c Public Utilities Law c Taxation Law c Traffic Law c Workers’ Compensation Law I wish to join the following OSBA committees (free): Return application with payment to: Ohio State Bar Association P.O. Box 16562 Columbus, Ohio 43216-6562 Fax credit card payments to: (614) 487-8808 For more information, contact: OSBA Member Service Center (800) 232-7124 or (614) 487-8585 Website: www.ohiobar.org Your dues include a subscription to the Ohio State Bar Association Report and Ohio Lawyer magazine, as well as access to Casemaker. You will also receive the OSBA Report Online via e-mail once your applica- tion has been processed. Dues for membership in the OSBA and OSBA sections are not deductible as charitable contributions for federal income tax purposes; however, such dues may be deducted as a busi- ness expense. Check with your financial advisor. ** Ohio LAWPAC: A political action committee. Contributions are discretionary and in addition to your dues. By law, only contributions from individuals, partnerships, LPAs, LLCs and LLPs should be remitted. Corporations, not-for-profit corporations and labor unions may not make contributions to political action committees. Members of such entities may contribute on their own. Contributions to LAWPAC are not deductible for federal income tax purposes. Once your application is processed, you will receive in the mail information on all of the benefits of membership in the OSBA.This information is also available on the OSBA website at www.ohiobar.org. Membership in the Ohio State Bar Association does not constitute permission to use the logo or marks of the Ohio State Bar Association.
  9. 9. Introducing OhioDocs, the OSBA’s state-of-the-art document automation tool featuring an extensive library of legal document templates. Free yourself from hours of filling out form after form and watch as OhioDocs automatically creates finished, customized documents using the information you provide. It’s called document assembly, and once you try it, you will never want to cut, paste or reformat a legal document again. For more information or to subscribe, visit www.ohiobar.org/ohiodocs. Documents included: · General practice documents (client intake, engagement letters, etc.) · Durable power of attorney forms for health care · Business documents from the Ohio Secretary of State’s Office · TOD Designation Affidavits and TOD Affidavits · Probate documents · Domestic relations documents from all 88 counties Buried in legal documents? Let OhioDocs fill in the blanks Automated Legal Documents OhioDocs · And more...
  10. 10. Subscriptions to OhioDocs are available only to members of the Ohio State Bar Association. Annual subscriptions include access to the entire document library (including updates), plus HotDocs Player. The OSBA may add new forms and updates throughout the year. All subscribers will receive notice of these changes to the library with instructions on how to download the new library, at no additional charge. Annual subscriptions are prorated quarterly: • April 1 to June 31: full price • Oct. 1 to Dec. 31: 50 percent off • July 1 to Sept. 30: 25 percent off • Jan. 1 to March 31: 75 percent off Subscriptions must be renewed annually prior to April 1, and subscribers will receive courtesy notices to renew beginning 15 days in advance of the termination date. Subscriptions that have not been renewed by April 1 will be terminated and the document library will cease to work. Automated Legal Documents OhioDocs Order Form Name OSBA member and/or Supreme Court number Firm Address City State Zip Phone E-mail Total Amount: $___________________________________ ❏ Check or ❏ Credit Card Acct. # Exp. Date Signature ❏ Mastercard ❏ Visa ❏AMEX Attorneys Subscription in the �irm price ❏ 1 $195 ❏ 2-3 $295 ❏ 4-5 $385 Attorneys Subscription in the �irm price ❏ 6-9 $545 ❏ 10-20 $940 ❏ 21-30 $1,260 Attorneys Subscription in the �irm price ❏ 31-40 $1,550 ❏ 41-50 $1,810 ❏ 51+ $2,040 Minus prorated amount, if applicable (see above): __________________ In addition, HotDocs requires payment of an additional $15 licensing fee per computer on which the library will be installed: Number of users:___________ x $15 = ____________ Subtotal = _____________ Tax @ 6.75% = _____________ Subscription & Payment Please choose the correct subscription price based on the number of attorneys in your �irm:
  11. 11. Attend via the Internet! Our live Webcast option allows you to watch CLE seminars conducted at OSBA Headquarters from your office, home or anywhere you have access to the Internet! Live Webcasts are classified as self-study by the Supreme Court, allowing you to earn up to six hours per reporting period for credit just like our online seminars. The difference... you don’t wait for the courses, you get them real time via streaming media! To view our schedule of upcoming live Webcasts, go to www.ohiobar.org/webcasts Not able to get to a live seminar at the OSBA? Ohio State Bar Association
  12. 12. FEATURED SPEAKER Detective Christine Roberts President Cellular Recovery Information Specialist, LLC Columbus Police Department Columbus, Ohio Detective Roberts is a 28-year veteran with the Columbus Police Department. She has over 19 years of experience in narcotics, interdiction, and organized crime cases. Detective Roberts has been conducting cell phone forensics since 2006, and has become one of the preeminent law enforcement experts on cell phone forensics. She has testified in both state and federal court as an expert witness in cell phone forensics and cell tower analysis. Detective Roberts is currently a member of a state and federal task force. She regularly conducts cell phone forensics and instructs law enforcement and attorneys in this area.
  13. 13. Cell Phone Forensics By Detective Christine Roberts Vol. # 12-006 Cell Phones Analysis for the Legal Profession Introduction........................................................................................................................................... 1 Evidence Found on Cell Phones ........................................................................................................... 1 Electronic Evidence.................................................................................................................. 2 Electronic Evidence Found on a Cell Phone........................................................................... 2 Address Book............................................................................................................................ 2 Call History .............................................................................................................................. 3 Text Messages .......................................................................................................................... 3 Cell Phone Companies Don’t Store Messages ........................................................................ 3 Calendar ................................................................................................................................... 3 Voicemail .................................................................................................................................. 3 Pictures and Videos.................................................................................................................. 4 Expansion Cards ...................................................................................................................... 4 Remote Wipe............................................................................................................................. 5 Why We Preserve it.................................................................................................................. 5 Criminal/Civil Evidence on a Cellular Phone ..................................................................................... 5 YouTube.................................................................................................................................... 5 Fatal Accidents......................................................................................................................... 5 Ohio’s New Texting Ban ............................................................................................. 5 When Should You Order Phone Records? ................................................................. 6 Cell Phones, Text Messaging, and Car Accident Information for All Drivers ........ 6 Can “Texting While Driving” Lead to a Manslaughter Charge? ............................. 6 Ohio.............................................................................................................................. 7 Federal Ban on Texting for Truck and Bus Drivers ................................................. 7 Sexting/Cyberbullying ............................................................................................................. 8 What Is Sexting? ......................................................................................................... 8 What Is Cyberbullying? .............................................................................................. 8 Similarities/Differences .............................................................................................. 8 Why Are Teens Sexting?........................................................................................... 10 Why Do Kids Cyberbully?......................................................................................... 10 Legal Issues............................................................................................................... 10 Sexting Laws ................................................................................................ 10 Sexting Offenses........................................................................................... 11 Ohio Law....................................................................................................... 11 House Bill 473 .............................................................................................. 11 Ohio Rev. Code § 2907.324 .......................................................................... 12 Bullying/Cyberbullying Laws................................................................................... 12 What Does the Law Require Schools to Do?............................................................ 13 Ohio Rev. Code § 2917.21 Telecommunications Harassment ................................ 14 Jessica Logan Act...................................................................................................... 14 The “Shaq Shield” ..................................................................................................... 15 Sextortion ............................................................................................................................... 15 Sex Trafficking ....................................................................................................................... 16 Damaged Phone ..................................................................................................................... 16 Financial Cases ...................................................................................................................... 16 Banking...................................................................................................................... 16 Mobile Peer-to-Peer (P2P) ........................................................................................ 17 Mobile Wallet ............................................................................................................ 17 Airline Tickets........................................................................................................... 18 Hotel Keys ................................................................................................................. 18
  14. 14. Cloud Storage..........................................................................................................................18 How It Works.............................................................................................................18 iCloud .........................................................................................................................19 Domestic, Divorce, and Child Custody Cases .......................................................................19 Cyberstalking.............................................................................................................19 Geotagging .................................................................................................................20 Spy Software ..............................................................................................................21 GPS forensics .............................................................................................................22 Detection of Spyware.................................................................................................23 Legalities of Spyware ................................................................................................24 Phone Examiner ........................................................................................................24 Retrieving the Evidence ......................................................................................................................24 Retained Data Evidence......................................................................................................................24 Cell Phone Tracking ...............................................................................................................25 Why Is This Information Important? .......................................................................25 Carrier Records..........................................................................................................25 Acquiring Cell Phone Carrier Evidence...................................................................26 Forensic Expert..........................................................................................................26 How Tracking Is Done............................................................................................................26 Cell Phone Towers.....................................................................................................26 Per-Call Measurement Data.....................................................................................27 Cell Phone Tracking Disadvantages ........................................................................27 Legal Issues..........................................................................................................................................28 Searching a Cell Phone ..........................................................................................................28 When Do You Need a Court Order or Subpoena?.................................................................29 Spyware...................................................................................................................................29 GPS..........................................................................................................................................29 Cell Site Data..........................................................................................................................29 Record Retention Times ......................................................................................................................31 Order Requesting Cell Phone Information ........................................................................................33 Cell Phone Contact List.......................................................................................................................35
  15. 15. Cell Phones Analysis for the Legal Profession • 1 © 2012 by Christine Roberts. All rights reserved. The material appearing here are copyrighted and owned by Christine Roberts. The works that follow was created to provide seminar attendees examples to use for their own personal use and these materials may not be reproduced without the express written permission of Christine Roberts. No license has been granted to a seminar attendee or third party and these materials shall not be sold, redistributed, given, lent, rented, leased, sublicensed, or otherwise transferred without the prior written permission of Christine Roberts. Cell Phones Analysis for the Legal Profession Detective Christine Roberts President Cellular Recovery Information Specialist, LLC Columbus Police Department Columbus, Ohio INTRODUCTION Mobile phones are one of the most important developments in technology in the courtroom in the last five years. Don’t overlook the importance of using cell phone evidence in your cases! EVIDENCE FOUND ON CELL PHONES When a person types and sends an e-mail or text message, he or she creates a piece of evidence that can be used for or against that person. Cellular records can also be used in court to show exactly where someone was or wasn’t and to whom he or she was talking at a particular time. If you decide to use cell phone evidence in your cases, then you must first determine exactly what kind of evidence can be found on the phone. There are two types of evidence that can be retrieved from mobile phones: A. Electronic evidence; and B. Retained data evidence. Electronic evidence includes the user’s call history, contacts or phonebook, calendar information, and the additional information that is found on the SIM card.
  16. 16. 2 • Cell Phones Analysis for the Legal Profession Retained data evidence is telecommunication records involving the details of calls made and received and geographical location of the mobile phone when a call is made. Electronic evidence is, by its very nature, fragile. It can be altered, damaged, or destroyed by improper handling or improper examination. A. Electronic evidence. Electronic evidence is information and data of investigative value that is stored on or transmitted by an electronic device. Electronic evidence is, by its very nature, fragile. It can be altered, damaged, or destroyed by improper handling or improper examination. B. Electronic evidence found on a cell phone: 1. Messages (SMS—short message service); 2. Photo/multimedia messages (multimedia messaging service); 3. Pictures and images; 4. Video and audio recordings; 5. Call history logs (received calls, missed calls, and dialed calls); 6. Phonebook and contacts; 7. Calendar and task list entries; 8. E-mails stored on handset; 9. Internet browsing history; 10. Social networking artifacts (Facebook, Twitter, and IM); and 11. Application artifacts (data from programs installed on Smartphone devices). C. Address book. The address book stores different contact information. With the help of the address book, it is possible to gain an insight in the social network of the suspect. It can be used, for example, to link a suspect to a victim. Beware the address book can store more than just a name and phone numbers (e-mail addresses and physical addresses).
  17. 17. Cell Phones Analysis for the Legal Profession • 3 D. Call history. The call history offers a deeper insight into the activities of the owner before the acquisition of the mobile phone occurs. One can see the last incoming and outgoing calls, as well as their duration. This information can be used to draw indirect conclusions as well. Remember to check the duration; it will tell you if someone actually talked or if voicemail answered. E. Text messages. Text messages are becoming more and more important in domestic proceedings. Text messaging is one of the top most common forms of electronic evidence. Text messages, as well as e-mail, offer concrete information in contrast to the call history and the address book, which only offer indirect information. They can contain actual words written by the owner or intended for the owner that can serve as evidence in court. F. Cell phone companies don’t store messages. AT&T Wireless states that they know of no way to save a text message, other than just not deleting it from the hand set. AT&T stores text messages for 48 hours to ensure they are delivered and then deletes them. Verizon Wireless agreed that the only way to keep a message is to keep it on the handset. Verizon keeps text messages on their servers for three days. The best chance to get any text message information is by searching the handset. But if the text messages have been deleted, then that is when a forensics specialist comes into play. But getting access to the text messages, especially when they have been deleted, can be complicated. If someone deletes his or her text messages, a mobile forensics specialist can try to retrieve the messages. G. Calendar. The calendar gives an overview of past and planned activities of the owner. It can be used to link the owner to certain location and times, as well as indicate possible witness. H. Voicemail. Voicemail could potentially be more damaging than text message communications. Text messages do not indicate the tone of voice or sincerity, but voicemail reveals more of a person’s intentions. Make
  18. 18. 4 • Cell Phones Analysis for the Legal Profession sure to copy voicemail as soon as possible. Most service providers do not store voicemail longer than 30 days. Voicemail is not stored on the handset; it is stored by the service provider. Therefore, you can retrieve voicemail from any phone. You can use your office to copy voicemail. I. Pictures and videos. Picture data sometimes can be used to determine the exact date and time a picture was taken, and in some cases, even location. J. Expansion cards. Mobile phones use a wide array of memory cards, ranging from the size of a contact lens to that of a matchbook. Removable media extends the storage capacity of mobile phones, allowing individuals to store additional files beyond the device’s built-in capacity and to share data between compatible devices. When faced with evidence from expansion cards, verify that the picture was taken with the cellular device. Almost all digital cameras and smart phones save JPEG files with EXIF (exchangeable image file) data. 1. Date; 2. Time; and 3. Type of camera or phone. How many photos can your memory card hold? Photos—fine mode: 1. 2 GB—770 photos; 2. 4 GB—1540 photos; 3. 8 GB—3080 photos; 4. 16 GB—6160 photos; and 5. 32 GB—12,320 photos.
  19. 19. Cell Phones Analysis for the Legal Profession • 5 K. Remote wipe. Many of the major cell phone companies are starting to offer the lost phone tool, where if you lose your phone, you can log onto the website and send a command out to erase all the information in the phone, including your phone book, recent calls, and text messages. It’s important that you identify and contact the carrier to lock down the user account so as not to allow the remote wipe feature to be enabled. Most carriers will respond to a court order. L. Why we preserve it. Protect it from incoming/outgoing data, Kill Signal, and to make sure that no one accidently accesses voicemail, e-mail, Internet browsing history, or other data that may be stored on the service provider’s network rather than on the phone itself. CRIMINAL/CIVIL EVIDENCE ON A CELLULAR PHONE A. YouTube. Most mobile phones will allow you to watch videos from the popular website YouTube on their handsets. YouTube keeps copies of all videos placed on YouTube indefinitely. A subpoena will allow you to obtain copies of the videos. All you need is the user ID that posted the video. Use Realplayer to capture Internet videos. B. Fatal accidents. 1. Ohio’s new texting ban. Drivers in Ohio are banned from reading, writing, and sending text messages from behind the wheel. The law makes texting with handheld devices a secondary offense for adults. The measure bans drivers under age 18 from using cell phones, iPads, laptops, or other electronic devices. They can’t make calls or browse the Web while driving. Texting or using an electronic device is a primary offense for minors. Ohio’s law makes texting a misdemeanor for drivers, with possible fines of $150. Minors can be fined $150 for the first offense and have their license suspended for 60 days. Repeat teen offenders can be fined $300 and have their license taken away for a year.
  20. 20. 6 • Cell Phones Analysis for the Legal Profession 2. When should you order phone records? After a serious crash to see whether a cell phone may have contributed to the crash or witness statements. Data from a cell phone or carrier can be the critical piece of evidence that determines the outcome of your case. 3. Cell phones, text messaging, and car accident information for all drivers. Talking on a cell phone causes nearly 25 percent of car accidents. Four out of every five accidents (80 percent) are attributed to distracted drivers. In contrast, drunk drivers account for roughly one out of three (33 percent) of all accidents nationally. Talking on a cell phone while driving can make a young driver’s reaction time as slow as that of a 70-year-old. Each year, 21 percent of fatal car crashes involving teenagers between the ages of 16 and 19 were the result of cell phone usage. This result has been expected to grow as much as 4 percent every year 4. Can “texting while driving” lead to a manslaughter charge? The answer is yes. Currently, alleged “texting while driving” has formed the basis for manslaughter and other very serious charges in various states. Even if not texting at the exact moment of collision, having texted near the time of the accident can be part of a larger question: were you distracted while driving? Evidence of extreme distraction (which might include having been texting, talking on the cell phone, etc.) can lead not only to a negligence charge, but all the way to a manslaughter charge. It was reported that the 42-year-old driver was focusing on his cell phone the morning of the incident and failed to slow down or stop as he drew near a crosswalk. Records from his mobile carrier show he sent four text messages and received three messages minutes before the accident occurred. He unfortunately ran over a 32-year-old woman, who was
  21. 21. Cell Phones Analysis for the Legal Profession • 7 pronounced dead at the scene of the accident due to fatal injuries to her head, torso, and extremities. The driver admitted to the Newport Beach Police that he never saw the woman crossing the street. 5. Ohio. Mount Vernon, Ohio—A Knox County teen faces charges after investigators on Thursday accused of her of texting at the time of a fatal crash. In Washington County, the prosecutor got a felony indictment from a grand jury in July after a man crossed the center line while texting and hit another car. No deaths or disabling injuries resulted from that accident. In Lucas County, a woman was convicted of a felony after she killed a kindergartner getting off a school bus while groping on the floor of her car for her phone. She appealed that conviction, but she lost. This would apply also to states where no specific bans on texting while driving have been put in place. The totality of what’s going on while someone is behind the wheel determines whether or not he or she was negligent or grossly negligent in an accident. Even if you put the phone down after texting while driving, that text may still be evidence that you had been driving in a distracted state, which too often has life-ending consequences. 5. Federal ban on texting for truck and bus drivers. As of January 26, 2010, all commercial vehicle drivers in the United States are banned using handheld cell phones while driving. The Department of Transportation (DOT) defines a commercial motor vehicle (CMV) as any vehicle that is: a. At least 10,001 pounds or more; b. Transporting hazardous materials; c. Designed or used to carry nine or more people, including the driver, for compensation; and d. Designed or used to carry 16 or more people, including the driver, not for compensation.
  22. 22. 8 • Cell Phones Analysis for the Legal Profession Drivers who violate the restriction will face federal civil penalties of up to $2750 for each offense, and disqualification from operating a commercial motor vehicle for multiple offenses. Additionally, states will suspend a driver’s commercial driver’s license (CDL) after two or more serious traffic violations. Commercial truck and bus companies that allow their drivers to use handheld cell phones while driving will face a maximum penalty of $11,000. Hands-free devices can be wired or wireless headsets or speakerphone functions built into a cab’s audio system and operated with steering wheel controls. Troopers who specialize in patrolling state roads for commercial vehicles will have the authority to issue these federal citations, the same as any other state law. Truck drivers who text message while on the road are 23 times more likely to get into an accident. C. Sexting/cyberbullying. As technology has advanced, new issues have moved to the forefront. In many states, laws have been slow to adapt to the quickly changing electronic environment. New cell phones, computers, and the Internet are capable of connecting people instantly. This has created the issues we face today regarding sexting and cyberbullying. 1. What is sexting? Sexting is the act of sending or forwarding nude or sexually explicit/suggestive pictures, messages, or videos via text message, instant messenger, or e-mail. 2. What is cyberbullying? Cyberbullying is the act of using any form of digital communication to send, post, or forward messages, videos, texts, or e-mails that are meant to threaten, harass, demean, or intimidate another person. 3. Similarities/differences. Both involve the use of electronic communication: a. Sexting. i. Texts (SMS);
  23. 23. Cell Phones Analysis for the Legal Profession • 9 ii. Multimedia messages (MMS); iii. E-mail; iv. Instant messenger programs; and v. BBM. Most commonly done with a cell phone. b. Cyberbullying. i. Social networking sites; ii. Tweets; iii. Chat rooms/forums/blogs; iv. Dedicated websites/polls; v. Interactive game sites; vi. Virtual worlds (avatars); vii. Taking unflattering pictures; and viii. Hacking. Can be done with cell phone, computer The main difference between the two has to do with content and intent. Cyberbullying is typically done with the intent to hurt or intimidate the receiver or the targeted person. (It doesn’t necessarily have to involve sexually explicit material.) Sexting often starts off innocent and voluntary. The motivation behind the sending of a nude or sexually suggestive image could simply be a teen trying to impress a potential boyfriend or girlfriend, or it could be related to peer pressure. A situation may start out as sexting between consenting parties and end up as a cyberbullying case as other students get involved (i.e., other girls become angry their boyfriend has a nude image of another girl that was forwarded to him). This could lead to a sext picture going viral, being posted on websites or social networking sites, and forwarded via mass texts/e-mails.
  24. 24. 10 • Cell Phones Analysis for the Legal Profession 4. Why are teens sexting? a. The primary reason teenagers sext is to look cool and sexy to someone they find attractive. b. Peer pressure (by friends or a potential boy or girlfriend). c. In response to a sexual text message they’ve received. d. They are not aware of the potential future implications it can have. 5. Why do kids cyberbully? a. Convenience. Cyberbullying can occur anytime, anywhere, even while a potential victim or bully is at home or with parents. It doesn’t have to be face to face. b. Anonimity. Cyberbullies can easily hide behind a fake identity, screen name, or nickname. No witnesses make finding the originator difficult. c. Efficiency. E-mail and text messages sent by a cyberbully can be easily and quickly distributed to a wide audience, increasing the victim’s suffering. d. Permanence. When a cyberbully publishes offensive content on the Internet, it does not “go away”; it can resurface at any time. e. Less confrontational. Using electronic means to bully gives someone more courage to send out material. He or she is not physically confronting the intended victim. 6. Legal isues. a. Sexting laws. i. Federal and state laws are pretty clear. Child pornography is a crime. So if you take a photo of someone under 18 where he or she is nude or partially nude or that is sexually explicit, and you are the one who either produced, distributed, or possessed that photo, you are breaking the law. ii. Disseminating nude images of a person under the age of 18 is considered distribution of child pornography, even if the person disseminating the images is a minor himself or herself. With child pornography charges comes mandatory sentencing guidelines, which may include imprisonment and mandatory registration as a sex offender.
  25. 25. Cell Phones Analysis for the Legal Profession • 11 b. Sexting offenses. Types of criminal charges that can result from sexting include felony and misdemeanor offenses, such as: i. Child pornography; ii. Distributing or possessing a sexually explicit photos; iii. Communicating with a minor with the intent of a lewd act; iv. Internet sex crimes; and v. Sending harmful matter with the intent of seduction. c. Ohio law. Right now in Ohio, minors who send, possess, or distribute pornographic messages could be charged with child-porn related offenses and be forced to register as a sex offender. Potential new legislation may change that. The new law will make it a misdemeanor if a minor is convicted of sending pornographic pictures without permission, which would keep kids from being labeled offenders for life. d. House Bill 473. i. On May 26, 2010, the Ohio House passed a bill that would punish teenagers for “sexting” but ensure that they do not face harsh punishment or be put on the sex-offender registry normally associated with transmitting nude pictures of minors. ii. House Bill 473 creates the new offense of sexting and applies it only to minors, classifying the sending of a nude photo of oneself as an unruly act and the sending of a photo of another as a misdemeanor. iii. The Bill now moves to the Ohio Senate for consideration.
  26. 26. 12 • Cell Phones Analysis for the Legal Profession e. Ohio Rev. Code § 2907.324. Sec. 2907.324. (A) No minor, by use of a telecommunications device, shall recklessly create, receive, exchange, send, or possess a photograph, video, or other material that shows a minor in a state of nudity. (B) It is no defense to a charge under this section that the minor creates, receives, exchanges, sends, or possesses a photograph, video, or other material that shows themselves in a state of nudity. (C) Whoever violates this section is guilty of illegal use of a telecommunications device involving a minor in a state of nudity, a delinquent act that would be a misdemeanor of the first degree if it could be committed as an adult. i. First offenders would be charged with a third- degree misdemeanor, punishable up to a maximum of 60 days in jail and a $500 fine. ii. Repeat offenders would face a first-degree misdemeanor charge, with a maximum penalty of six months in jail and a $1000 fine. iii. Minors who engaged in sexting would not be required to register as sex offenders. iv. Minors who forwarded sexually explicit photos of others would face harsher penalties than those sending explicit photos of themselves. v. Prosecutors would still have the option of pressing felony charges in more egregious cases involving minors. f. Bullying/cyberbullying laws. Bullying in Ohio schools is defined in law by Ohio Rev. Code § 3313.666 as any intentional written, verbal, graphic, or physical act that a student or group of students exhibits toward another particular student more than once, and that behavior both: i. Causes mental or physical harm to the other student; and
  27. 27. Cell Phones Analysis for the Legal Profession • 13 ii. Is sufficiently severe, persistent, or pervasive that it creates an intimidating, threatening, or abusive educational environment for the other student. It took effect in March 2007. g. What does the law require schools to do? The law requires all public school districts to establish a policy prohibiting harassment, intimidation, or bullying. The policy must be developed in consultation with parents, students, school employees, and community members. The policy must include the following: i. A statement prohibiting bullying of any student on school property or at school-sponsored events; ii. A definition of bullying that includes the definition listed above (in other words, schools cannot decide to define bullying to only include physically hurting another student—they must include physical and mental harm); iii. A procedure for reporting bullying; iv. A requirement that school employees and volunteers must report bullying to the school principal; v. A requirement that parents or guardians of students who are involved in any bullying be notified and have access to any written reports about bullying incidents; vi. A procedure for documenting or keeping track of any reported bullying; vii. A procedure for responding to and investigating any reported bullying; viii. A strategy for protecting a victim from additional bullying and from retaliation for reporting bullying; and ix. A disciplinary procedure for a student guilty of bullying another student.
  28. 28. 14 • Cell Phones Analysis for the Legal Profession Bullying includes physically beating up or attacking a child or verbally abusing with threats, taunts, etc. One does not have to be physically harmed to be a victim of bullying. The law also requires schools to post a summary of bullying incidents on its webpage twice a year. h. Ohio Rev. Code § 2917.21 telecommunications harassment. (A) No person shall knowingly make or cause to be made a telecommunication, or knowingly permit a telecommunication to be made from a telecommunications device under the person’s control, to another, if the caller does any of the following: (1) Fails to identify the caller to the recipient of the telecommunication and makes the telecommunication with purpose to harass or abuse any person at the premises to which the telecommunication is made, whether or not actual communication takes place between the caller and a recipient. (C)(1) Whoever violates this section is guilty of telecommunications harassment. (2) A violation of division (A)(1), (2), (3), or (5) or (B) of this section is a misdemeanor of the first degree on a first offense, and a felony of the fifth degree on each subsequent offense. i. Jessica Logan Act. Signed into law February 2012. Key components are: schools will include bullying and harassment sent electronically in their anti-bullying and punishment standards. This bullying policy will extend off school grounds and on school buses. Every year, parents will be informed of a school’s anti-bullying policy and punishment and will be notified when their student is found to be involved in bullying incidents. The law will allow for anonymous reporting of bullying incidents for those who fear retaliation. The law will establish a statewide standard and mandate.
  29. 29. Cell Phones Analysis for the Legal Profession • 15 j. The “Shaq shield.” Shaq Shield is a free iPhone app that provides parents with the tools and knowledge they need to protect their children from online predators. Features of the app include: i. A sex offender registry search; ii. Internet safety tips; iii. Glossary of Internet terminology; iv. Lingo used by children online; and v. Pledges by parents and children for shared Internet responsibility. D. Sextortion. Online “sextortion” of teens is on the rise. It’s the biggest growing trend on the Internet. Sextortion: a practice of coercing an individual into sending sexually explicit images/videos and then using those images as leverage to compel the originator to send additional images/videos or even engage in sexual conduct. How does this happen? The suspect creates a fake profile or chat posing as someone else who then makes a request to “friend” or otherwise have contact with the individual. The suspect sends a picture or video depicting the fake persona and requests return pictures/videos. Believing that he or she is sending a picture to a known friend, the victim snaps a few revealing images and hits send. The suspect then begins to threaten the victim. The victim is told to send more compromising pictures or the suspect will post the previous images on a porn site. The suspect will often send links to the porn site in order prove that he or she is serious about the threat. In an effort to further control the victim, the suspect often gathers information from social networking sites, and then threatens to send the compromising pictures to parents, friends, etc.
  30. 30. 16 • Cell Phones Analysis for the Legal Profession E. Sex trafficking. The recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act in which a commercial sex act is induced by force, fraud, or coercion, or in which the person forced to perform such an act is under the age of 18 years. Trafficker/pimp tactics. The current trend is to use younger, “junior” pimps. They assist with recruiting young girls. They may get paid a finder’s fee. They pose themselves as potential boyfriends, possibly with an older brother or uncle who has connections to modeling, singing, dancing, etc. F. Damaged phone. Don’t let a damaged phone stop you from obtaining your evidence. The majority of all damaged cell phones can be repaired and processed. G. Financial cases. Technology has spawned a new addition to the high-level money launderer’s inventory—the cellular telephone. A cellular phone enables money launderers, as well as other criminal potentates, to conduct their business at all times, in all locations. The number of consumers paying for items via their mobile devices will shoot past 141 million this year. That figure is a 38.2 percent increase over 2010, when mobile payment users hit 102.1 million. The amount of money generated via mobile payments is expected to reach $86.1 billion this year, up almost 76 percent from the $48.9 million seen last year. 1. Banking. Today almost all banks make banking easy on your cell phone. You can check account balances, pay bills, and transfer money using a smart phone. Anytime you seize a smart phone you should check to see if there is a bank app on the phone. Instead of driving to the bank, you can deposit your check with your bank account. Just snap a picture of the front and back of your endorsed check and send it using your mobile app.
  31. 31. Cell Phones Analysis for the Legal Profession • 17 You can now send money to anyone or pay back an IOU ASAP— without mailing cash or checks. Person-to-Person Quickpay lets you send money to nearly anyone with an e-mail address. Customers of Bank of America, JPMorgan Chase, and Wells Fargo will be able to move funds directly from their existing checking accounts using an e-mail address or mobile number— instead of providing checking account and routing numbers. 2. Mobile peer-to-peer (P2P). You can now transfer payments to friends with the bump of a cell phone—no account numbers needed. You can transfer payments between phones by tapping them together. Peer-to-peer payments, as with other peer-to-peer services, like music sharing, are informal transactions made between two people. Paying the babysitter and reimbursing a friend for your share in a lunch tab fall into this category. Bumping allows consumers to use phones that are equipped with accelerometers to make peer-to-peer payments and share images or contact details. Mobile P2P payments to total $7 billion in 2010. Smart phone owners and consumers between the ages of 18 and 34 are both the most active users of mobile banking and are prime targets for mobile P2P use. Almost 4 in every 10 mobile bankers initiated a mobile P2P transfer in the past 12 months. Most consumers who make mobile P2P payments do that for domestic transfers and not for international remittances. 3. Mobile wallet. One in every six mobile subscribers worldwide will own a device enabled with near-field communications capabilities by 2014. Apple’s upcoming iPhone 5 comes with a near-field communications (NFC) chip. iPhone will use Passbook, an app for storing and using things like credit cards, tickets, and boarding passes. It doesn’t require NFC capability to function, but it is thought that the feature will be added in for the iPhone 5.
  32. 32. 18 • Cell Phones Analysis for the Legal Profession 4. Airline tickets. So the paper ticket is dead, and a new move by Continental Airlines could mean that paper boarding passes may be the next to go. The airline is currently testing out digital boarding passes that let you use your cell phone as a ticket. 5. Hotel keys. Chicago—a new Technology will encrypt a mobile phone to double-up as a hotel room key. A code is transferred through text message by a hotel to a mobile phone. It is activated at a certain time of the day, enabling the cell phone to be an encrypted room key simply by passing it in the vicinity of a special electronic door lock. Guests can have access to their rooms without having to stop at the front desk upon arrival. Guests will securely receive their room number and room key on any phone type or carrier network prior to arriving at the hotel. After proceeding directly to their room, they can open the door. H. Cloud storage. Cloud storage is the saving of data to an off-site storage system maintained by a third party. The Internet provides the connection between the computer and the database. 1. How it works. A client (e.g., a computer user subscribing to a cloud storage service) sends copies of files over the Internet to the data server, which then records the information. When the client wishes to retrieve the information, he or she accesses the data server through a Web-based interface. The server then either sends the files back to the client or allows the client to access and manipulate the files on the server itself. If you store your data on a cloud storage system, you’ll be able to get to that data from any location that has Internet access. You wouldn’t need to carry around a physical storage device or use the same computer to save and retrieve your information. With the right storage system, you could even allow other people to access your files.
  33. 33. Cell Phones Analysis for the Legal Profession • 19 2. iCloud. With iCloud you can use it to back up and restore data on your Apple iOS devices. iCloud is capable of taking daily backups of your iPhone, iPad, or iPod Touch when it’s connected to the Internet using Wifi. a. Your personal device settings, like screen brightness or call volume. b. Your app arrangement on the screen. c. Ringtones and text messages. d. Apps, music, and books you’ve purchased from iTunes. e. App data, like an account setup or game scoreboard. f. Photos and video associated with the Camera Roll feauter in iOS. g. You can authorize up to 10 devices to access and use iCloud with your Apple ID. I. Domestic, divorce, and child custody cases. 1. Cyberstalking. Stalking today is not only easier, it’s virtual—which dramatically lessens the chance of getting caught in the act. a. Stalking by cell phone. i. Of individuals being stalked, 83 percent received unwanted e-mail or text messages and 35 percent received unwanted instant messages. ii. One in thirteen victims knew that the stalker used electronic monitoring, and of these: (a) Forty-six percent used video or digital cameras; (b) Forty two percent used listening devices or bugs; and (c) About one-tenth used GPS technology to monitor them.
  34. 34. 20 • Cell Phones Analysis for the Legal Profession Remember that someone only needs your name, cell phone number, and the last four digits of your Social Security number to access your phone records, either with a live rep on the phone or by logging into an online account manager. Make sure a password is put on all accounts. If the harasser is someone that is on the account— meaning his or her name is also on the account—then the victim will always be in danger until the victim gets an account of his or her own. Even with all precautions taken, the harasser can walk into any cell store or customer service location, present his or her identification, and if the harasser is an account user or his or her name is on the account, the harasser can still get access to the account. He or she can change the passwords and retrieve information about whom the victim is calling and the general location of where the victim is calling from! b. Tips to reduce the possibility that someone can obtain your cell phone records. Contact your cell phone carrier and request that call details be removed from your bills. Place a password on the account. When selecting a password, do not use commonly known information, such as your birth date, mother’s maiden name, or numbers from your driver’s license or Social Security number. Do not reuse the same password for other sites. The best password has at least eight characters and includes numbers and letters. Instruct the phone carrier not to provide password reminders. If you forget your password, you will need to visit your local store to show identification. 2. Geotagging. So you take pictures with your smartphone and then post them online. What’s the worst thing that could happen? What personal information could possibly be exposed? Where’s the threat? Most people don’t realize that the action of automatic geotagging takes place on their smartphones. As a result, individuals often share too much information about their location, right down to the exact latitude and longitude when snapping photos with their smartphone and posting them online.
  35. 35. Cell Phones Analysis for the Legal Profession • 21 For example, Apple’s iPhone by default embeds high-precision geo-coordinates within all photos and videos taken within the internal camera unless it is explicitly switched off in the phone’s settings. The danger is that some users aren’t aware that their information is being geotagged. Geotagging is the process of adding geographical identification to photographs and videos. How to protect youself. Consider turning off geotagging in your camera and mobile. Certainly if it asks, “Can I use location data?” don’t do so at home or other places you consider “private.” Talk to the kids. Make them aware of the danger of this. If you like this feature, then just don’t upload to any social network sites (Flickr, Facebook, etc.) without first stripping the metadata out of the photo. Consider how people are interacting with you and whether or not they might be a risk. “Geotag Security,” which deletes geotag information from your computer’s hard disk. The software is free of cost and can easily be downloaded (www.geotagsecurity.com). 3. Spy software. We are familiar with the idea that house phones can be tapped. However, cell phones are not exempt. In fact, your cell phone can act like a blazing hot trail for the mischievous to follow. Cellular spyware is becoming more and more popular—mainly with stalkers and domestic situations (cheating spouses or monitoring your kids). Spyware is usually installed on phones by physical access to the phone by somebody you know. It could be your spouse, friend, family member, coworker, or work adversary who happens to find your phone sitting around when you take a bathroom or coffee break. It only takes a minute or so to install the spyware on newer phones that have Internet access.
  36. 36. 22 • Cell Phones Analysis for the Legal Profession No longer does the stalker have to sneak out in the middle of the night to check the car’s odometer; the GPS (viewed live on a cell phone) tells the stalker exactly where the car has been. Cell phone providers offer programs to help track one’s children. Signing up for one of these programs is as simple as entering the account number on the website and designating which phones a person would like to be located. Sprint and AT&T phones will send out a notification that the phone is able to be located. The account holder can specify whether the notification comes every time the phone is located or whether the phone receives a notification periodically. Did you know that GPS enables very precise tracking, down to as little as one meter (roughly 39 inches)? 4. GPS forensics. Logical acquisitions of all or selected data from Garmin, Magellan, and TomTom Serial and USB GPS devices are available and should not be overlooked. Depending on the manufacturer and model, GPS devices may contain some or all the following information: a. Track logs; b. Trackpoints; c. Waypoints; d. Routes; e. Stored location; home, office, etc.; f. Security location; g. Recent addresses; g. Call logs (missed, dialed, and received); h. Paired device history; i. Incoming/outgoing text messages; and j. Videos, photos, and audio.
  37. 37. Cell Phones Analysis for the Legal Profession • 23 5. Detection of spyware. Installing anti-virus and anti-spyware software on Smartphones. If you’re reasonably sure your phone has been hacked and loaded with spyware, take it to your cell phone service provider and ask them to reflash it with the latest firmware. Some of the best steps may be among the simplest. Enable the password feature on your phone, and set it to lock your phone after a short delay. Contact your cell phone service provider and ask them to put a password on your account so that nobody who does not know the password can change the account. 6. Legalities of spyware. In Florida, a wife, using the Spector program, secretly installed the spyware on her husband’s computer and was able to capture entire conversations the husband had had with another woman. The husband discovered the program and asked the court to prevent the wife from using the evidence. The trial court ruled, and the appellate court agreed, that although the state and federal wiretapping statute did not have an exclusionary rule, the court had the discretion to exclude the evidence because it was obtained illegally. Whether the evidence will come before the court comes down to the facts surrounding how the evidence was obtained. a. Was the spyware installed before or after the separation? b. Was the spyware on a family computer that both spouses used or had access to? c. Arguably, evidence obtained from spyware installed by an “authorized user” onto a family computer prior to a separation would be admissible. However, installing spyware onto a spouse’s workplace computer would probably produce evidence that would be excluded because it was obtained illegally. GPS trackers, on the other hand, are not covered by a specific law, such as the wiretapping or spyware statutes. However, some law enforcement agencies have taken the position that placing a GPS tracker on a spouse or ex-spouse’s vehicle is stalking and have brought criminal charges against the tracker installer.
  38. 38. 24 • Cell Phones Analysis for the Legal Profession The police recently charged a man with misdemeanor stalking after he installed a GPS tracker on his estranged wife’s vehicle and used the information to follow her to various locations. Whether the police would prosecute and the court would allow the information to be used as evidence would come down to the specific facts of the case, including how the information gleaned from the tracker is used and who owns the vehicle. 7. Phone examiner. a. Make sure they are qualified to conduct the exam. b. Always ask for the forensic report. c. Always ask for the examiner’s curriculum vitae. d. Currently there are no standards for cellular phone examiners. RETREIVING THE EVIDENCE Find a qualified examiner to process the phone. If no qualified examiner is available, then take complete screen shots of the evidence along with the front of the phone, back of phone, main menu, phone information, and the IMEI or ESN. Preserve the phone as evidence, if possible. Have your client sign a consent to search form. Remember: if you take the pictures of the evidence and those pictures are used in court, then you may be called as a witness. Find a qualified examiner to process the phone. If no qualified examiner is available, then take complete screen shots of the evidence along with the front of the phone, back of phone, and the IMEI or ESN. RETAINED DATA EVIDENCE Retained data evidence is telecommunication records involving the details of calls made and received and geographical location of the mobile phone when a call is made. Carrier records. Cell phone records can be used in court to show exactly where someone was and whom the person was talking with at a particular time.
  39. 39. Cell Phones Analysis for the Legal Profession • 25 It is very difficult to challenge one’s ability to subpoena retained data evidence in its entirety because the information that resides with the telecommunication carrier is not protected by a heightened expectation of privacy. Attorneys in civil, divorce, and child custody cases can get court orders for cell tower records, with which wireless companies must comply. A. Cell phone tracking. Cell site analysis is the science of reconstructing the physical movements of a mobile telephone or communication device. The evidence produced from such advanced investigations can be especially powerful in attributing contact between individuals, proximity to the scene of a crime, suspect movement patterns, and the testing of alibi evidence. Cellular records can also be used in court to show exactly where someone was and whom the person was talking with at a particular time. Attorneys in civil, divorce, and child custody cases can get court orders for cell tower records, with which wireless companies must comply. It is very difficult to challenge one’s ability to subpoena retained data evidence in its entirety because the information that resides with the telecommunication carrier is not protected by a heightened expectation of privacy. 1. Why is this information important? You can use this data to compare to other investigative facts, beliefs, or theories. This can identify discrepancies or make confirmations. You can use these records to help you find people, confirm and/or refute statements/beliefs in the investigation, and put cell phones in approximate geographic areas during certain dates and times. 2. Carrier records. Cell phone records can be used in court to show exactly where someone was and whom the person was talking with at a particular time. Given the nature of cell phone technology—in which the signal is constantly being routed to the nearest cell tower—someone’s location can be pinpointed very closely. And there will also be a record of who was on the other end of the conversation.
  40. 40. 26 • Cell Phones Analysis for the Legal Profession 3. Acquiring cell phone carrier evidence. The four-step procedure should be followed when deciding to pursue cell phone carrier records. a. Step 1—determine the evidence target or decide what may be important to learn from evidence. b. Step 2—determine the cell phone carrier to whom the cell phone number is subscribed. c. Step 3—contact the cell phone carrier’s legal compliance department for verification. d. Step 4—immediately pursue a subpoena or court order, depending on what evidence types you are seeking. Useful websites. a. www.nanpa.com. b. www.wirelessamberalerts.com. c. www.searchbug.com. 4. Forensic expert. A cell forensics expert should be engaged at the earliest stages of a case and should be capable of providing guidance in the evidence determination and preservation request stages. The expert should also able to assist in obtaining the court order request by providing both the technical language and the testimonial support to gain judicial approval for the request. B. How tracking is done. You may already know this, but your cell phone happens to be a miniature tracking device that can be used to monitor your location from afar. Cell phone tracking records should become a more common piece of evidence in a range of personal injury cases and other civil and criminal cases. 1. Cell phone towers. A cell phone tower is typically a steel pole or lattice structure that rises hundreds of feet into the air.
  41. 41. Cell Phones Analysis for the Legal Profession • 27 As a cell phone call is placed, it is received on one particular antenna on an individual tower. Each cell tower typically contains three directional antennas. A cell phone call will only be on one tower and in a certain section of the tower. Tower data reveals whether the device was in motion or stationary. A person dialing from one location will hit the same side of the same tower, but a person on the go will hit different towers and different sides. A long call may make it difficult to tell where a subject went between two towers, but short messages paint a clearer picture of a travel path. 2. Per-call measurement data. a. Sprint (PCMD)—specific to CDMA phones, it narrows down the position of the handset within the tower’s radius (tenth of a mile). Providers keep the data for only 5 to 14 days. Not historical GPS. Can be affected by the handset’s range to tower, attenuation, geography, and lack of other towers in the area. b. Verizon—the PCMD report with Verizon is called RTT and this data can be provided if only an SMS was sent. c. AT&T—states they do not have the capability to obtain PCMD. d. T-Mobile—has additional ranging data called timing advance. 3. Cell phone tracking disadvantages. While cell phone tracking can be very effective, it does have a couple of limitations. GPS enabled cell phones cannot be located if your phone is not turned on. A person can also disable the phone by setting what is sometimes called the “hide” feature. Some may even have the option to allow tracking only in 911 situations. Another problem is that cell phones can have reception problems. Signals can be lost in particular locations, like among tall building or in heavily forested terrain. Keep in mind that tracking a cell phone tells you where the cell phone is or has been; it does not identify the person carrying the phone. One challenge attorneys will face is identifying the specific user of a phone. The only way to positively identify a user is through personal statement, direct observation, or audio identification.
  42. 42. 28 • Cell Phones Analysis for the Legal Profession LEGAL ISSUES Search warrant to recover data from a suspect cell phone. The Supreme Court of Ohio has order that if a police officer wants to look at a suspect’s cell phone, then the police officer will need a search warrant unless there are exigent circumstances. The ruling comes from State of Ohio v. Smith. See the case below. THE STATE OF OHIO, APPELLEE, v. SMITH, APPELLANT [Cite as State v. Smith, 124 Ohio St.3d 163, 2009-Ohio-6426.] Search and seizure—search incident to arrest—data stored in cell phone carried by arrestee. (Dec. 15, 2009) The Supreme Court of Ohio ruled that the Fourth Amendment prohibition against unreasonable searches and seizures requires police to obtain a warrant before searching data stored in a cell phone that has been seized from its owner in the course of a lawful arrest when the search is not necessary to protect the safety of law enforcement officers and there are no exigent circumstances. “Although cell phones cannot be equated with laptop computers, their ability 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,” wrote Justice Lanzinger. “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 is neither lost nor erased. But because 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.” A. Searching a cell phone. Under certain circumstances, it is illegal to go through someone’s cell phone. And the act of snooping may also make the information inadmissible in court. The general rule of thumb is that if someone has a pin number as a block to directly accessing his or her cell phone, then it is unlawful to snoop. It’s like the difference between an open briefcase and one that is locked. There is a greater expectation of privacy if the phone is locked.
  43. 43. Cell Phones Analysis for the Legal Profession • 29 B. When do you need a court order or subpoena? Basic subscriber records can be obtained with a subpoena. Historical files relating to cell phone location can be had with an articulable facts order. Reading e-mail or locating a person in real time requires a search warrant. C. Spyware. The general rule is that someone who creates a password (outside of the work environment, where the employer has a right to monitor such conduct) has created an expectation of privacy and denied authorized access to anyone (including a spouse) who has not been given the password. D. GPS. Secretly planting a GPS system requires a very fact-sensitive analysis. Like checking a spouse’s e-mail, the legality of secretly planting a GPS tracker depends on who owns the vehicle. In a purely technical sense, if you own the vehicle or have joint ownership of it, then it is perfectly legal to use a GPS system to monitor it. Spouses can legally access their spouse’s e-mail in scenarios where there is a jointly owned computer or a computer that is used by the entire family. The key issue in the planting of a GPS system is whether the spouse who was tracked had a reasonable expectation of privacy. Ohio Rev. Code § 2933.65. Illegal interceptions are felonies and also carry potential civil liability for the greater of actual damages, $200 per day of violation or $10,000, along with punitive damages, attorney fees, and litigation expenses. There is a two-year statute of limitations to bring a civil action. E. Cell site data. Cell site data is not a wire communication because it does not involve the transfer of the human voice at any point along the path between the cell phone and the cell tower. United States v. Forest, 355 F.3d 942, 949 (6th Cir. 2004) (“cell site data clearly does not fall within the definitions of wire or oral communication”). Although voice communications obviously do take place over a cell phone, this is accomplished on a channel or frequency entirely separate from the control channel that transmits the cell site data necessary to set up the call. Tracking device information, such as cell site data, is plainly not a form of electronic communication at all.
  44. 44. 30 • Cell Phones Analysis for the Legal Profession “Electronic communication” is defined as follows: [A]ny transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo electronic or photo optical system that affects interstate or foreign commerce, but does not include...(C) any communication from a tracking device (as defined in section 3117 of this title);.... 18 U.S.C. § 2510(12)(C) (emphasis supplied). By virtue of this tracking device exclusion, no communication from a tracking device can be an electronic communication. Real-time location monitoring effectively converts a cell phone into a tracking device, and therefore cell site data communicated from a cell phone is not an electronic communication under the Electronic Communications Privacy Act of 1986.
  45. 45. Cell Phones Analysis for the Legal Profession • 31 RECORD RETENTION TIMES VERIZON Cell Site 1 year from current date Cell Sector 1 year from current date SMS 3 days IP History 30 days, if a computer sent the text message 5 - 10 days. E-mail No storage CDR’s 1 year CINGULAR/AT&T Cell Site 30 days Cell Sector 30 days SMS No storage IP History No storage Email No storage CDR’s 5 - 7 years T-MOBILE Cell Site 30 days Cell Sector 30 days SMS No storage E-mail 30 days CDR’s 2 years on prepaid accounts and longer for monthly accounts SPRINT Cell Site 18 months Cell Sector 18 months SMS No storage IP History 7 - 14 days or any saved SMS E-mail 7 - 14 days or any saved SMS CDR’s 18 months NEXTEL Cell Site 18 months Cell Sector 18 months SMS No storage IP History 7 - 14 days or any saved SMS E-mail 7 - 14 days or any saved SMS CDR’s 18 months
  46. 46. 32 • Cell Phones Analysis for the Legal Profession
  47. 47. Cell Phones Analysis for the Legal Profession • 33 IN THE COURT OF COMMON PLEAS, FRANKLIN COUNTY, OHIO CRIMINAL DIVISION IN THE MATTER OF THE APPLICATION OF THE STATE OF OHIO FOR AN ORDER AUTHORIZING THE RELEASE OF CASE NO. ________________ CELLULAR RECORDS WITH CALL DETAIL, INCLUDING CALLER IDENTIFICATION RECORDS, DIRECT CONNECT, AND CELLULAR SITE INFORMATION--HISTORICAL ORDER REQUESTING CELL PHONE INFORMATION This matter comes before this Court pursuant to the Certification of (Name) of the (Name of Law Office) which application requests that an Order be issued as follows: That, in as much as (WIRELESS COMPANY NAME)and/or any other telecommunications/communications provider/carrier who may possess the request information such as a roaming carrier, will furnish all information, records, and necessary to release cellular phone records on telephone number (CELL PHONE NUMBER). It is hereby ordered that (Wireless COMPANY NAME) be provided with a copy of this order ordering and ratifying compliance with Ohio Revised Code 2933.76, 2933.77 and Rule 41 (B) of the Ohio Rules of Criminal Procedure and, in accordance with, Title 18, United States Code(U.S.C.), 2703(d.) That (Wireless COMPANY NAME), and/or any other telecommunications/ communications provider/carrier who may possess the request information such as a roaming carrier, provide call detail records, with cellular site information, for the provided cellular phone numbers for the dates of (Date) (or the beginning of account/whichever is latest) through (Date). That (Wireless COMPANY NAME), and/or any other telecommunications/ communications provider/carrier who may possess the request information such as a roaming carrier, provide to (Name of Law Office) upon their specific request(s), the following; call detail(s), and cellular site record(s) for the listed date(s)[if available], up to the date and time of the issuance of this order pertaining to cellular phone numbers (PHONE NUMBER), or, any telephone/pager/ telecommunications device number(s) revealed from the original target number(s)’ record(s):
  48. 48. 34 • Cell Phones Analysis for the Legal Profession 1.) Call Detail records showing all incoming and outgoing numbers that was received or dialed. 2.) Call origination/termination location, A list of any and all applicable cellular site(s)’ number(s), location(s), address (es), and/or latitude and longitude of any said site(s.) along with the azimuth and bandwidth. Also, that cellular site(s)’ list(s), latitude(s) and longitude(s), be provided, via electronic mail, in an electronic format, if available and/or possible. 3.) That, any so ordered provider(s) provide any required information on demand, if possible and upon the specific request(s) of the designee(s.) Further, that any so ordered provider(s) provide, upon the specific request(s) of the designee(s), any historical geo-location service(s)/global positioning system (GPS) data/record(s) which may be available to any involved provider(s.) 4.) Any PCMD, RTT or Timing Advantage which may be available. 5.) Further, that any data provided pursuant to this Order shall be provided in a commercially reasonable electronic format specified by the designee; and that those records be delivered forthwith via electronic mail, and/or designee that is authorized to receive and analyze all information and records provided pursuant to this Order. If e-mail is not available/possible, that the provider(s) provide the required data electronically on a common storage medium, such as CD-ROM (compact disc read only memory) disc(s), Also, that all provider(s) provide, when possible and so requested, all requested data in ASCII, comma separated values (.csv). Only where this is not possible, to provide information in dark, clean typeface, machine- scanable/Optical Character Recognition (OCR) interpretable hardcopy. This includes the faxing of any necessary requested records at the highest possible quality setting. Further, that upon the specific request of designee(s), that any provided data be provided by the necessary provider(s) in a business records affidavit format that complies with the laws of the State of Ohio. The concerned communications carriers are also ordered to retain, indefinitely, hard and soft copies of all records and/or data provided as a result of this order. IT IS SO ORDERED __________________________________ Judge - Franklin County Court of Common Pleas ___________________________________ Date / Time
  49. 49. Cell Phones Analysis for the Legal Profession • 35 CELL PHONE CONTACT LIST
  50. 50. 36 • Cell Phones Analysis for the Legal Profession Sprint Nextel Corporation TracFone Wireless, Inc. Virgin Mobile USA, LP Corporate Security - Subpoena Compliance Subpoena Compliance Subpoena Compliance Custodian of Records Custodian of Records Custodian of Records 6480 Sprint Parkway 9700 N.W. 112th Ave. 10 Independence Blvd. KSOPHM0206 Miami, FL 33178 Warren, NJ 07059 Overland Park, KS 66251 Special Instructions Contact: Customer support. Call Detail records retained 1 yr. Electronic response avail. Special Instructions Bryan Watkinson. Ask for Charges. Toll records retained 2 yrs. Maximum 40 phones per subpoena.Special Instructions Send email to L- Site@sprint.comfor On- line Submittal information. Charges if > 25 Phone 800-820-8632 Phone 908-607-4119 Ext 2 Phone 800-877-7330 Ext 3 Emergency Phone 800-820-8632 Ext 1 Emergency Phone 866-868-6622 Emergency Phone 800-877-7330 Ext 1 Fax 305-715-6932 Fax 908-607-4205 Fax 816-600-3111 Contact Email subpoenacompliance@tracfone.com Contact Email lawenforcement@virginm obileusa.comContact Email thomas.koch@sprint.com Subpoena Email subpoenacompliance@tracfone.com Subpoena Email (Not available) Subpoena Email (Not available) Delivery Methods Mail, Fax, Hand Delivery, Email Delivery Methods Mail, Fax, Hand Delivery Page Plus, Inc. TracFone Wireless, Inc. a/k/a Topp Telecom, Inc. Cleveland Unlimited, Inc. d/b/a Revol f/k/a Northcoast PCS Page Plus, Inc. TracFone Wireless, Inc. Cleveland Unlimited, Inc. d/b/a Revol f/k/a Northcoast PCS Subpoena Compliance Subpoena Compliance Subpoena Compliance Custodian of Records Custodian of Records Custodian of Records 10222 E. 41st Street 9700 N.W. 112th Ave. 7165 E. Pleasant Valley Road Tulsa, OK 74146 Miami, FL 33178 Independence, OH44131 Special Instructions Prelimdata. Handles only 2 Oklahoma Area Codes: 405 and 918 Special Instructions Contact: Customer support. Call Detail records retained 1 yr. Electronic response avail. Special Instructions Contact: Faneia Creagh. Toll records retained 3 yrs. Electronic response avail. Phone 918-665-6700 Phone 800-820-8632 Phone 216-525-1118 Emergency Phone (Not Available) Emergency Phone 800-820-8632 Ext 1 Emergency Phone (Not Available) Fax (Not available) Fax 305-715-6932 Fax 216-525-1170 Contact Email (Not available) Contact Email subpoenacompliance@tracfone.com Contact Email (Not available) Subpoena Email (Not available) Subpoena Email subpoenacompliance@tracfone.com Subpoena Email (Not available) Delivery Methods Mail, Hand Delivery Delivery Methods Mail, Fax, Hand Delivery Boost Mobile, LLC Address Virgin Mobile Address Address NET10/STRAIGHT TALK Address Address Address
  51. 51. NOTES

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