The Day I Stopped Worrying and Learned to Love Digital Espionage

by Aaron D. Delgado & Romanik , PLC

The year 2014 was one of revolutions and revelations. We witnessed shocking scenes of civil unrest throughout the United States as protesters clashed with what appears to be increasingly "militarized" police force equipped for the streets of Anyville, U.S.A., as if they were occupying war-torn Syria. In cyberspace, we finally received confirmation of what activists had been screaming for years - Governments really were spying on us - eavesdropping in the highest technological ways possible; Governments were sifting through our phone calls, text messages and emails without apology. Considering I have been witnessing police agencies adopt the weaponry and tactics of military units, it should have hardly surprised me to see the same surveillance and digital espionage used in the "War on Terror" brought to American neighbourhoods. And, after more than a decade as a criminal defense attorney, why would I be surprised law enforcement seems unapologetic in their invasion of privacy so long as it leads to arrests.

And it is not just law enforcement. "Big Data" clearly gathers massive amounts of data on us, the "consumer," for their own financial gain. But it turns out that data is not solely to help sell you that gadget you didn't even know you needed. That data is being sold, traded, stolen and sometimes turned over to the authorities. Of course, some companies fought to keep our data safe, but others gave Government agencies back doors into our private lives. A principle employee of Wickr, an amazing free program designed to provide a private messaging solution, told reporters he was approached by the FBI about leaving a "back door" for the agency's "official use." Wickr denies having done such a thing and, in fact, their website clearly tells law enforcement any attempt to subpoena data will be fruitless because their entire system is designed to store nothing - they cannot hand over what they do not have.

Big Data and Big Privacy - both are big business, and they are locked in mortal combat. The market demands both, and time will tell where consumers land. However business always tends to move more quickly. By contract, the legal system moves at a snail's pace. As an example, for decades, lawyers have been aware of "wire taps" and "tracking devices" and their use in criminal investigations. But our evolving case law system does not keep pace with the rapidly changing face of technology. With a few notable exceptions, our case law is probably ten years behind the true state of the art technology available to our Government. By its very nature, case law is reactionary, and it can take years for issues to wind their way through to the higher courts. Even more alarming is the fact that it may take years before defendants even learn they were targeted by emerging technology. For example, 2014 saw several State and Federal courts addressing the Government's use of cell phone tracking technology, including "stingray" devices (which trick cell phones into transmitting "location data") (for more details on stingray technology and litigation, please visit the ACLU's amazing website on the subject), which showed a surprisingly detailed portrait of a suspect's movement by looking at where their cell phones had been. But that technology had been in place and in use for years. We were just unaware of it. When pressed, do you know what the Government's response was? You have no right of privacy in the data that shows where your cell phone has been "pinged" because you are moving about on the open road! Thankfully, the Florida Supreme Court rejected that argument and upheld the common sense that detailed tracking data was not legally available without a search warrant.

As I was editing this article for publication, I read a new story about law enforcement using a small hand- held device which allows an officer to stands outside of a building and utilizes radar to detect movement within the dwelling and the distance at which this movement takes place. This device has been in use for over two years, and was originally designed for use in overseas combat zones. However the domestic use of such radar systems exemplifies the increased use of militarized technology for civilian policing and the rapid evolution of these intrusive devices. Alarmingly, citizens did not know such a device was being used. Law enforcement went to great lengths to protect information about this device (as they did for the stingray) and instructed officers to claim they received "information from a reliable confidential source" to avoid alerting "criminals" (or the public) to the use of such devices. Fortunately, some states have taken action to protect individuals against this unjustifiable search and have disallowed the use of these devices without a warrant recognizing that using advanced technology to peer inside the home offends long-held constitutional protections. While I find the technology itself poses frightening issues for privacy rights, it is the fact the Government actively concealed the of the device that troubles me the most. The emerging trend of "lying to the public to protect the public from the bad guys" is deeply offensive to me and to my notion that the Government serves the people. Also, this "breaking news" highlights the need for attorneys to be ever vigilant in defending their clients, to question law enforcement thoroughly, to review budgets for the purchase of new "gadgets" and to be willing to risk "exposing the confidential source" who may turn out to be a machine.

Environmentalists coined the phrase "carbon footprint" as a tool to conceptualize the resources we consume and those that we leave in our wake. In 2015, I encourage everyone to begin understanding and thinking about their "digital footprint" (or fingerprint). Digital footprints are not eroded by the passage of time and upcoming generations will realize every moment of life (which has been tweeted, face booked, instagrammed, Kik'd, etc) has been archived for future review. I am neither a security consultant nor an expert in digital forensics, but I hire those kinds of experts all the time. I sift through thousands of pages of data, cross referencing times and dates, building defenses, poking holes in claims and leaving no stone unturned for my clients. Why am I spending so much time sifting through people's digital footprints? Because more and more of our Firm's cases involve digital footprints - sometimes we get a hard drive full of data from the Government. But in other cases, using a variety of tools, my litigation team finds and follows the footprints. You would be surprised how easy it is - particularly with how much content people generate themselves and post all over the place. My awesome social media director (the gal who maintains our online presence) has been invaluable in showing some of the older attorneys at our Firm just how much information is out there!

Now, obviously, if you are accused of a crime involving any kind of digital foot print (particularly ones involving social media sites like Facebook or cell phone tracking data) you need to consult with an attorney experienced in this type of litigation. You will also need expert witnesses. But the cyber-crimes are not the only types that require this kind of work. From personal injury cases to divorce cases, social media sites can be a treasure trove of information. So you say your back hurts and you cannot lift more than ten pounds? Well, your Instagram shows you hoisting a sail fish for your trophy shot. Who has been sending you all those instant messages late at night when your wife is at work? Why are you "checked in" to Tampa, Florida when your boss thinks you called in sick? Police and private investigators aggressively dig into your digital footprint. While even simply "googling yourself" can reveal a lot about you, there are vastly more sophisticated methods being constantly being utilized and refined. If you are ever going to be involved in litigation, even as a witness, expect that you will be the subject of some "data mining." Truthfully, even potential jurors are being carefully reviewed - by us! See the nice looking young lady sitting quietly in the back of the courtroom during a Delgado & Romanik PLC jury selection - she works for me, and she is checking you out on every social media site she can. She is telling me you have a daughter the same age as the alleged victim. She is telling me that you are a member of the NRA. She might even find posts you made on opinion sites or a clever tweet you made moaning about being summoned for jury service - just don't comment on my thinning hair please! All of that information is public and, while it may seem intrusive, I am absolutely going to use any tool available to uncover every detail about anyone who may sit in judgment of my client!

So what should you do about your digital foot print? Unplug and live inside a magnetically shielded adobo and communicate only by carrier pigeon? Face it, it's almost impossible to not leave a digital foot print. Many experts have written volumes on easy and effective means to reduce your digital foot print. You may feel as though this is overkill, particularly because you never think you will be the target of a detailed investigation. That thought alone is naive. Employers undertake "digital screening" of their potential employees, and even first date candidates get, at the minimum, the "google treatment." If you become passionate about digital privacy, there are many great sites out there and you will want to read a great deal more about this topic. Remember too, digital privacy is ever evolving and what works today will probably stand outdated tomorrow.

Below are my personal suggestions on easy ways to decrease your digital foot print without inordinately disrupting your life. These are ideas for daily individual use with minimum set up and cost.

  1. Do not post anything on social media. Ever. Lol. Failing that, only post things you would show your grandmother. If you must post on social media (or just want to make sure everyone sees your child's ever single step) learn to use the privacy settings. Just bear in mind it can be hard to protect against "social engineering" in which someone uses their charm to get into your social network by claiming to have mutual friends or interests. Remember the information you post is being stored somewhere.
  2. Use a private browser (many browsers offer a private setting but as was just recently publicized even those private browsers cannot always prevent sites from tracking your browsing history or using "cookies") to surf the internet. Look into TOR browsers that offer anonymous web surfing.
  3. Facetime, Apple's video messaging application, appears to be incredibly private. Conversations on FaceTime are more private than phone calls. If you want to give your loved one your PIN code for your ATM, consider firing up FaceTime. Skype is shockingly not private according to several security websites and articles its very terms of use.
  4. Use private chatting/SMS program, like Wickr, to send and receive text messages. Wickr has the added advantage of "scrubbing" your device so deleted data is truly deleted. I cannot tell you how many "deleted" items I have recovered, with permission, from my clients' phones.
  5. Learn how to really delete files and use software to make sure a deleted file is gone for good.
  6. Passwords protect your devices, documents and folders. Change passwords regularly. Learn how to create very robust passwords and use a different password for different sites. If this is overwhelming, use a password managing application.
  7. Disable location services on your mobile devices. Consider powering off the device completely or removing the battery if that is an option.
  8. Be aware of what programs and applications store your location data - many portable devices record detailed GPS data on pictures you take and where you are when they are uploaded to other websites.
  9. Be alert to signs of spyware or tracking software installed on your computer devices such as decreased battery life. There are a variety of programs which can be installed on cell phones to "hijack" them (this may be illegal if done by an individual).
  10. Be mindful of cloud based storage and back-up. More devices want to back everything up to "the cloud" which means that you have centralized a great deal of your data. You do not have to be a celebrity or debutante to be careful of what could be looted from cloud storage.
  11. If you are a business owner, make sure you understand your industry rules and regulations for cloud based computing and cloud based storage.

Remember, privacy has an intrinsic value - when you choose to trust a person and share with them, this should remain a uniquely human act. Digital privacy is not something reserved for criminals, spies or unfaithful spouses. Privacy is a fundamental human right. The longer these aforementioned scenarios persist; individual privacy will continue to slip away. And, once you lose your privacy, it can be impossible to regain it. In the spirit of fostering privacy, in support of individual rights, I hope this article stimulates conversation and empowers you to take control over your digital foot print as much as you can.

If you need the help of a team of trial attorneys who are experienced in using this type of digital data, please contact our offices 24/7. Delgado & Romanik prides itself on staying on the cutting edge of technology and using all the tools at our disposal to obtain the best results possible for our clients. We understand how to obtain and use a wide range of digital information to get outstanding results and we have literally found "smoking 'digital' guns" that led to acquittals in several high-profile criminal cases. We work closely with great experts to not only obtain the data, but to present it in an accessible and educational way to judges and jurors. We invite you to visit our state of the art facilities to learn more about how we can help you in a wide variety of legal issues. If you have been arrested, injured or wronged, consult with Delgado & Romanik , PLC, you will be glad you did.