AI Evidence, SPEX Litigation Victory, Ineffective Assistance of Counsel, Missing Data & More
Vol. 4, Issue 11
November 6, 2023
Welcome to Decrypting a Defense, the monthly newsletter of the Legal Aid Society’s Digital Forensics Unit. In this issue, Joel Schmidt discusses recent legislation on using artificial intelligence in court. Benjamin Burger explains the Legal Aid Society’s successful Article 78 litigation against the New York City Police Department for surveillance contracts. Jerome Greco reviews a recent decision overturning a murder conviction for ineffective assistance of counsel. Finally, Allison Young explores why data may be missing from a mobile device extraction.
The Digital Forensics Unit of The Legal Aid Society was created in 2013 in recognition of the growing use of digital evidence in the criminal legal system. Consisting of attorneys and forensic analysts, the Unit provides support and analysis to the Criminal, Juvenile Rights, and Civil Practices of The Legal Aid Society.
In the News
Banning AI Derived Evidence
Joel Schmidt, Digital Forensics Staff Attorney
Almost one year ago ChatGPT emerged seemingly out of nowhere to mesmerize the world. Recipes, speeches, jokes, computer code – it seemed there was nothing ChatGPT wasn’t capable of doing. Schools rushed to ban it (but then backtracked). Elon Musk, Apple co-founder Steve Wozniak, and other tech industry leaders warned of “profound risks to society and humanity” posed by artificial intelligence and called for a six month moratorium on further development. (It didn’t happen, in fact development sped up.)
There’s no question that artificial intelligence is here to stay and will continue to embed itself in almost every aspect of life. But as we embrace the benefits of artificial intelligence, we must also be vigilant to ensure AI isn’t used to deceive or defraud. To that end, New York State Assembly member and intellectual property attorney Clyde Vanel has introduced a bill that would sharply limit how evidence created or processed by artificial intelligence can be admitted as evidence in court.
The proposed legislation would prevent courts in New York state from admitting into evidence anything that was created by artificial intelligence, unless it is supported by other independent evidence and the party that wants it in evidence can prove that the AI process used to create it is reliable and accurate. If artificial intelligence is only used to generate a conclusion based on existing evidence, then it doesn’t have to be supported by other independent evidence, but the party that wants it in evidence would still have to prove that the process used to create it was reliable and accurate.
“This new technology is going to be used more and more, in every field of human endeavor,” Assemblyman Vanel told the New York Law Journal. “It’s going to be really important to make sure that with AI-created or AI-processed data or information or evidence, that you’re very careful about that in the space of a trial.”
Despite ChatGPT’s infancy, the legal industry is no stranger to the potential harms of artificial intelligence. In June a federal judge sanctioned two New York attorneys for submitting a legal brief prepared by ChatGPT, complete with six fake cases and their fictitious holdings. Last month, new attorneys for Prakazrel “Pras” Michel of the Fugees, who earlier this year was convicted of multiple conspiracy charges, accused trial counsel of using an experimental artificial intelligence program to draft a closing argument delivered to the jury that allegedly contained frivolous arguments, made fundamental legal errors, and ignored serious weaknesses in the case.
While it remains to be seen how the legislation would play out in the courtroom if passed, care needs to be taken to ensure that nothing in it would infringe on a criminal defendant’s constitutional right to present a defense. No law, no matter how well intentioned, is above the Constitution. Ideally, the bill itself would, in sum and substance, state it was subject to constitutional limitations, as many laws indicate. Absent that, it would fall upon the courts to issue rulings to that effect. Relying on the courts, though, is a risky endeavor. Sometimes a court might choose to limit a statute to its non-constitutional applications, but at other times it might choose to invalidate the entire statute.
Thus far, Vanel - who once introduced a widely panned bill written by artificial intelligence - has no cosponsors for his bill and its likelihood of successful passage into law remains unknown.
Legal Aid Successfully Litigates FOIL Request for NYPD Surveillance Contracts
Benjamin S. Burger, Digital Forensics Staff Attorney
Last week, the Legal Aid Society and the Digital Forensics Unit won an Article 78 petition [PDF] seeking NYPD’s Special Expense Purchase (“SPEX”) contracts. The victory was the culmination of three years of Freedom of Information Law (FOIL) requests and litigation. It also means that secretive surveillance and technology contracts entered into by NYPD will face public scrutiny.
The story of the SPEX contracts dates back almost two decades. In 2007, a number of city agencies, including the NYPD, City Comptroller, and Mayor’s Office of Contract Services entered into an agreement to shield specific NYPD surveillance and technology purchases from the normal procurement process. These contracts were never published online and were hidden from the public. After passage of the Public Oversight of Surveillance Technology (POST) Act in 2020, then-Comptroller Scott Stringer withdrew from the SPEX agreement. Through a FOIL request, The Legal Aid Society obtained copies of the agreement from the City Comptroller. Next, Legal Aid filed FOIL requests with the city agencies that comprised the agreement, including NYPD. While some agencies, like the City Comptroller, complied with the FOIL request, NYPD denied Legal Aid’s request and a subsequent appeal. In July 2021, Legal Aid filed an Article 78 petition, seeking a judicial order requiring NYPD to turn over the SPEX contract documents.
After two years of litigation, Justice Lyle E. Frank of New York County Supreme Court granted the petition and ordered NYPD to disclose the documents on a quarterly schedule starting in March 2024. Justice Frank rejected NYPD’s argument that the voluminous nature of the documents overcame the organization’s responsibility to comply with its FOIL obligations. Specifically, the court acknowledged that the SPEX contracts were of “public importance” and “the very information FOIL intended to give the public access to when it would no longer compromise public safety to reveal.”
The NYPD is the largest police force in the world. However, despite its massive budget and employee headcount, the organization faces little oversight from elected politicians. Combined with Mayor Eric Adams’s unfettered glee in deploying robots and other dubious technology, disclosure of the SPEX contracts is an important victory that will allow politicians, activists, and the public to know how their tax dollars are used and oversee the use of privacy destroying technology.
In the Courts
Ineffective Assistance of Counsel: Attorneys Cannot Ignore Technological Evidence in Their Cases
Jerome D. Greco, Digital Forensics Supervising Attorney
In People v. Johnson, 2023 NY Slip Op 51015(U) (2023), New York County Supreme Court Justice Daniel Conviser recently overturned a 2017 homicide conviction, finding the defendant’s trial counsel was ineffective. The four decisions that trial counsel made that are of interest to us here are (1) not moving to suppress the historical cell site location information (CSLI); (2) not hiring a qualified expert to review call detail records; (3) failing to move to controvert the search warrant for his client’s cell phone; and (4) failing to challenge video compilation annotations.
Regarding the CSLI, the Court correctly identified that not only had Carpenter v. United States,138 S. Ct. 2206 (2018) not been decided yet, but the then binding case law in the First Department was that a warrant was not required to obtain CSLI. See People v. Hall, 86 A.D.3d 450 (1st Dept 2011). Despite Hall improperly distinguishing from People v. Weaver, 12 N.Y.3d 433 (2009) and eventually being overturned by Carpenter, moving to suppress the CSLI pre-2018 would not have been successful and a defendant is not denied effective assistance of counsel when an attorney does not make a motion that “has little or no chance of success.” See People v. Caban, 5 NY3d 143, 152 (2005).
However, defense counsel conceded he had “received numerous telephone records…but he did not know how to read them.” Johnson at *9. Not knowing how to analyze call detail records is not ineffective assistance of counsel but failing to hire someone with the requisite knowledge to do so, when ultimately those records provided evidence that another person committed the murder, is ineffective.
The most egregious decision, of the four we are discussing, was trial counsel failing to move to controvert the search warrant for his client’s cell phone. The attorney had correctly moved to controvert the search warrant in his omnibus motion by providing a generic boilerplate argument. This alone would potentially be ineffective in a current case, but pre-discovery reform, this was often the only option. Defense counsel would blanketly move to controvert in their omnibus motion and demand a copy of the warrant and its application, the prosecution would later turn over a copy (often after an unnecessary and drawn out fight), and then the defense would make a more case-specific and robust motion to controvert. As a result, Justice Conviser did not fault the trial attorney for this practice, but he took issue with the fact that counsel never subsequently filed a more substantive motion. Even though the Court held its decision in abeyance pending the defense’s receipt of the warrant materials, no motion was ever filed. The Court found that the attorney’s “failure to file a motion to controvert when invited to do so by the Court clearly fell below an objective standard of reasonableness.” Johnson at *18.
The Court went a step further to categorize the warrant as “clearly invalid,” id. at *2, and finding that the warrant violated the Fourth Amendment’s particularity requirements because it failed to specify the particular crime the search was being conducted for and that it had no date limitation (or any other limitation). Id. at 17-18, citing, People v. Melamed, 178 A.D.3d 1079 (2nd Dept. 2019) and People v. Thompson, 178 A.D.3d 457 (1st Dept. 2019). The Court acknowledged that trial courts at the time were well behind the curve and were often not granting motions to controvert on these grounds, but found that the failure to move to controvert “when combined with the other errors here, was prejudicial and contributed to counsel’s ineffectiveness.” Johnson at *18.
Defense counsel also failed to challenge an annotated video compilation. The prosecution “inserted color-coded arrows above each person and those arrows were then correlated with color coded digital phone evidence which identified the names of the phone holders with the same colors as the arrows.” Id. The Court found the “the arrows served as the equivalent of identifications,” without a proper witness identifying the people. The witnesses who testified regarding the compilation relied on the prosecutors for the identifications and did not have any independent knowledge of the identities of the depicted individuals.
Johnson’s trial counsel likely would have been found ineffective based on his other errors not discussed here, but it is clear from the Court’s opinion that the inability or unwillingness to challenge the results of technologies used in criminal prosecutions alone can be considered ineffective. Defense attorneys are not required to know every technology in detail, but they must be able to identify their use in cases and seek appropriate qualified help. It cannot be ignored, and a lack of understanding will not be “consistent with strategic decisions of a reasonably competent attorney.” See People v. Mendoza, 33 N.Y.3d 414, 418 (2019) (quotation omitted).
Ask an Analyst
Do you have a question about digital forensics or electronic surveillance? Please send it to AskDFU@legal-aid.org and we may feature it in an upcoming issue of our newsletter. No identifying information will be used without your permission.
Q: I have a case where my client insists that there are messages between themselves and the complaining witness (CW) that contradict the CW’s side of the story. The DA analysts downloaded my client’s phone, but I’m not seeing those messages. Am I missing something? Is there any way to tell if something was done to the phone to erase data?
A: First, if you find yourself wondering whether you’re missing data, an easy thing to check is whether you received a copy of the phone data or a report (which can be filtered by time range, data category, or other parameters). Once you do have the original phone files, you would likely need to ask an analyst to help, as these files are not ready to view “out of the box.”
If you’re still missing data that you’ve been led to believe should exist on the device, it can be incredibly frustrating. Fortunately, there are some common explanations that will influence what you do next.
The Device was not Fully Extracted
Security settings or strength for a particular phone can prevent digital forensic extraction tools from accessing data. For example, sometimes only text messages can be copied from a phone, while WhatsApp messages are excluded.
A phone may also be locked, in which case, only some data (although a surprisingly large amount!) might be copied by a tool. If this is the case, you will want to review any extraction notes provided in discovery to check for legal or technical issues with any attempts to bypass the passcode.
Something is Encrypted
We’ve discussed encryption on a computer before, but encryption is also a factor for phone analysis. Even if an analyst is able to copy encrypted data, forensic reporting software may not call attention to it by default, as the encryption can hide the characteristics of files that indicate whether they are photos, communications, or other data.
Access may simply require another password from the client.
The Data Doesn’t Exist on the Device
Often, there is pertinent data to corroborate a timeline that your client can see on their screen that is not actually saved to the phone. Many apps rely on the internet to display and store data, from communications to large video files to game progress. If you copy data from the phone, data in the cloud is limited to what has been saved by the phone, which is often bare minimum account information or recently accessed files.
You made need to send a legal request or ask an analyst to collect those sources from the internet instead of the phone.
The Data was Deleted
If data has been deleted, really deleted, it may be gone forever.
Records like phone billing records may be immune to user deletion, but at risk of being deleted by the carrier. If an app uses a “Recycle Bin” or “Trash” area, files may be recoverable after deletion, but only for a matter of days.
Data deletion effectiveness varies greatly, so it’s always better to check and often requires full access to preserved data (not just reports).
Some mysteries may remain unsolved when trying to match up what the client, complaining witness, technicians, and attorneys say about events in a case, but missing data can be a crucial clue in itself worth investigating. Reviewing system data (such as application logs) that should be available in a full phone extraction can shed light on why data is not be available or how it was deleted.
Allison Young, Digital Forensics Analyst
Upcoming Events
November 7, 2023
The Anatomy of a Breath Test Case - 10th Annual Man vs. Machine (NYSACDL) (Brooklyn, NY)
November 16, 2023
Caring for Digital Remains (Data & Society) (Virtual)
December 1, 2023
2023 Demystifying Medical & Digital Evidence in Abortion Cases (NACDL) (Washington, DC)
December 6, 2023
Immersive Tech Panel Series: Kids & Teens (Future of Privacy Forum) (Virtual)
February 8, 2024
Digital Part I: Geofence Warrants (NYSDA) (Virtual)
February 14-17, 2024
ABA TECHSHOW 2024 (ABA) (Chicago, IL)
February 29, 2024
Digital Part II: Cell Site Location Information (“CSLI”) and Call Detail Records (“CDR”) (NYSDA) (Virtual)
February 29 - March 7, 2024
SANS OSINT Summit & Training (SANS) (Arlington, VA & Virtual)
April 15-17, 2024
Magnet User Summit 2024 (Nashville, TN)
April 18-20, 2024
Making Sense of Science XVII: Forensic Science & the Law (NACDL) (Las Vegas, NV)
June 4-6, 2024
Techno Security East 2024 (Wilmington, NC)
Small Bytes
Police Seek a Radio Silence That Would Mute Critics in the Press (FAIR)
US Justice Department Urged to Investigate Gunshot Detector Purchases (Wired)
Predictive Policing Software Terrible At Predicting Crimes (The Markup)
TechScape: How police use location and search data to find suspects - and not always the right ones (the Guardian)
ICE, CBP, Secret Service All Illegally Used Smartphone Location Data (404 Media)
Adams reveals AI-generated version of his voice reaching New Yorkers as he unveils tech plan (NY Daily News)
None of Your Photos Are Real (Wired)
The NYPD is using AI to analyze body camera footage. Civil rights activists have privacy concerns. (Gothamist)
Interpretive and Interpersonal Challenges of Digital Evidence for Public Defenders (Human Communication & Technology)