It’s a mobile world, and we’re just living (and practicing) in it.
Most assuredly, you use a mobile device of some kind (phone, tablet, smart watch, etc.) and, even more assuredly, your clients use mobile devices in every part of their lives. Mobile devices are becoming more prominent and vital to how we all communicate and interact with the world.
When it comes to getting business done, it’s estimated that between 80 and 90% of workers in the U.S. use text messaging for business purposes.1 If people are using mobile devices to communicate, that means lawyers have to get information from those devices to find out what people were saying. Adding to the complexity, many people don’t like to separate their digital lives between a personal mobile device and a work-issued device; many companies adopt either a bring-your-own device (BYOD) or company owned but personally enabled (COPE) policy, allowing employees to blur the lines between personal and business use.
And to add another layer of complexity, collecting information from mobile devices is not limited to corporate civil litigation. Since mobile devices are used in all aspects of our lives, mobile information is sought in all kinds of cases from criminal issues to domestic complaints to construction litigation.
The U.S. Supreme Court in Riley v. California addressed the issue of collecting information from a mobile device after police officers seized a man’s phone during a traffic stop and charged him with a crime based on texts and photographs found on the phone.2 In a unanimous ruling, the Court held that the warrantless search and seizure of digital contents of a cell phone during an arrest is unconstitutional, writing:
First, a cell phone collects in one place many distinct types of information that reveal much more in combination than any isolated record. Second, the phone’s capacity allows even just one type of information to convey far more than previously possible. Third, data on the phone can date back for years. ... Finally, there is an element of pervasiveness that characterizes cell phones ... it is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives — from the mundane to the intimate.3
If you haven’t had to collect information from a mobile device yet, you will. It’s only a matter of time. The prevalence of mobile devices in our society today cannot be ignored and it’s just going to continue to grow.
DIY METHODS FOR COLLECTING TEXT MESSAGES
There are a couple simple, do-it-yourself options for collecting text messages from mobile devices. The biggest consideration with these methods is whether they are adequate for properly preserving text messages in a litigation matter or admittance into court.
On the most basic end of the spectrum, individuals can take screenshots of text messages which can then be stitched together to create a full conversation. Simply pull up the text message conversation, take a screenshot, scroll up through the text message, take another screenshot, and so on and so forth until the entire conversation is preserved as screenshots. The client can send you all the pictures or use an app such as Stitch It (iPhone and Android)4 or Picsew (iPhone)5 to paste the photos together so it looks like one continuous text conversation one would see on the phone itself. There are also software applications that allow users to copy text messages from a mobile device to a computer. For iPhones, the iMazing software ($49.99 for a single license)6 lets users plug an iPhone into their computer via a USB cable. iMazing imports the text messages from the iPhone onto the computer in a format that looks very similar to what a text conversation looks like on an iPhone. The software can also export conversations as text files or PDFs.
For Android devices, a mobile app from the Google Play store called SMS Backup and Restore made by SyncTech7 creates a backup file of text messages on the Android device that can be shared with others. The backup file is in XML format, which means you’ll need help from someone to parse through the file. The SyncTech website also has an online viewer users can access.
If you allow your client to collect text messages using these options, be sure they document the date and time when they created the screenshots or backups so you can authenticate the files later. You should also document the model of the mobile device and the version of the operating system it’s running.
FORENSIC IMAGES: THE MOST COMPREHENSIVE METHOD FOR COLLECTING TEXT MESSAGES
If you need the most comprehensive method for collecting and preserving text messages, find a professional forensics examiner. The forensics examiner will need the phone to create a full backup of the device, using specific tools and software to create an “image” of the data from the phone. Once that’s complete, you can work with the examiner to determine what information you need exported from that image, including text messages. These professionals are usually skilled in providing affidavits or other expert testimony regarding the soundness of the collection efforts.
Examples of tools that forensics professionals use to copy data from a mobile device include EnCase from OpenText, Forensic ToolKit from AccessData, and X-Ways Forensic.8 Arguably the leading tool for mobile device forensics is the Universal Forensic Extraction Device Touch by Cellebrite.9 Cellebrite has the advantage of working with many different cell phone manufacturers and models since they construct the data transfer devices cellular carrier technicians use to move your information when you upgrade your phone.
Whichever method you choose, be sure to weigh the risks and costs associated with each. Taking screenshots is an inexpensive DIY method, but the client may need to testify as to when and how they created those screenshots. Engaging a forensic professional to create an “image” of a mobile device is the most expensive method, but it is also the most comprehensive collection and can be backed up by the testimony of a third-party expert.