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When LegalWeek 2024 kicks off, I counted no less than six Day One sessions addressing AI as their core topic. The AI onslaught continues with nine the next day, ten on the third, and five on the final shortened day. I expect all of the panelists will share impressive insights, and the subject of how AI will impact the legal profession indeed is fascinating.

With that said, we are not yet in the Age of Ultron. In my corner of the universe – digital forensics – we should not get so caught up with the latest shiny object that we forget the value of old-fashioned human intelligence.

Interpol defines digital forensics as a “branch of forensic science that focuses on identifying, acquiring, processing, analyzing, and reporting on data stored electronically.”  Although software tools certainly are useful in all aspects of this science, and over time AI likely will become so, for the foreseeable future there is no substitute for human intelligence in digital forensics.

Identifying ESI requires getting to know a client, and understanding what questions to ask. Analysis requires more than simple knowledge of what computer artifacts are, but also assessing the context of how and why people use computer systems. Perhaps most importantly, every good lawyer knows that how reports are communicated, both written and through expert testimony, can be just as important as the findings themselves, if not more so.

Finally, human intelligence in digital forensics is not just about book smarts, but also emotional intelligence. The digital forensics team is often the first group of outsiders a lawyer introduces to their clients. High EQ experts help establish comfort level and trust, ranging from C-Suite executives concerned about cost and scope, to junior employees skittish about producing evidence from personal phones used at work pursuant to a bring your own device policy. Having the wisdom to be conservative in opinions, foresight to understand where counsel might be going with a line of questioning, and judgment to know when to shut up are just a few examples of how human EQ, IQ and experience intersect in ways that AI might never replicate.

Some might argue that this perspective is self-serving, which is both fair and a trait common in the human experience. I acknowledge that learning about AI is interesting, and that lawyers have a duty to keep up with how technology impacts their practices. The AI-heavy bent of Legal Week 2024 nevertheless is an excellent opportunity to remind everyone that although artificial intelligence no doubt will find its way into digital forensics, the choice of expert rather than technology will remain far more important for quite some time.

Many organizations expend tremendous resources keeping hackers from accessing corporate networks, but sometimes the greatest information security risk comes from your employees who already have proverbial keys to the kingdom. That’s particularly true with departing employees. Although it’s always nice to throw a party and wish someone well in their next venture, hiring a third-party expert to proactively determine if evidence of data theft exists can be a prudent and affordable part of your organization’s offboarding process.

Experienced experts in digital forensics investigations can track the computer activity of outgoing employees and help avoid expensive data misappropriation incidents, assisting in a variety of scenarios:

Data Theft:

In their final days, employees often deliberately or inadvertently retain possession of client lists, trade secrets, and other important information. Digital forensic experts can track the computer activity of outgoing employees and help avoid expensive data misappropriation incidents.

Fraud:

Certain employees are predictably more likely to engage in fraud, embezzlement, and other types of misconduct. Moreover, disgruntlement that can lead to departure decisions increases the risk that employees will attempt to defraud an organization. Experienced digital forensic experts can advise regarding risk management, helping prioritize who to investigate, perform associated investigations, and potentially prevent significant financial losses.

Litigation:

Employee misconduct, such as sexual harassment and discrimination, could be raised by a former employee months after their departure. Preserving evidence from their company computers, phones or other electronic data could be vital to demonstrate that a termination was proper, such as for failure to fulfill job responsibilities, or to otherwise document events before relevant evidence is lost.

Experienced digital forensics experts verifiably collect electronic evidence, prepare comprehensive – and comprehensible – investigative reports, and offer clear testimony regarding their findings.

There was breaking news in digital forensics from the USA v. Donald J. Trump criminal case. I will update as more information becomes known, but Special Counsel Jack Smith filed a summary of anticipated expert testimony involving multiple digital forensic experts. Although reliance on digital forensic experts is increasingly common, this high profile example demonstrates how cell phones and electronic storage accounts automatically can create highly relevant data without users necessarily intending, or even being aware of, its creation.

Special Counsel Smith disclosed that three different experts would testify regarding the following topics relating to digital forensics:

1. Using Specialized Software to Map Location Data

The first proposed expert employed specialized geo-mapping software in conjunction with Google location history data. The proposed expert would testify regarding how the mapping software can leverage such data to provide a reliable graphical representation of individual movements toward the U.S. Capitol on January 6, 2021 after President Trump’s speech at President’s Park South.

2. Authenticating and Explaining Location Data

The second proposed digital forensics expert would testify regarding the authenticity of location data collected from Google, and how such data can be used to understand movements of individuals toward the U.S. Capitol after President Trump’s January 6, 2021 speech.

3. Analysis of Cell Phone Data

The third proposed expert would testify regarding cell phone data from President Trump himself, as well as another unidentified individual. In particular, this expert is anticipated to testify regarding the collection and extraction of such cell phone data, analyzing when the Twitter application was open on President Trump’s phone, and discussion of other relevant phone evidence.

Although neither I nor my employer Repario (https://repariodata.com/) worked on this particular dispute, the digital forensics team at Repario routinely collects and analyzes location data from smart phones and other electronic storage devices and accounts in a wide variety of litigation contexts. The potential relevance of where individuals were and when extends well beyond criminal matters, with other examples potentially ranging from complex corporate data misappropriation theft investigations to more routine but no less significant disputes involving traffic accidents and other personal injuries.

After a 25 year break, I am back to occasionally judging policy debate tournaments on the weekend. It’s fascinating to see the ways that the activity has evolved, and ways it has stayed the same. I never thought I would get back into the activity, but fortuitously my eldest son Elijah decided (on his own) to join the activity. There aren’t many better ways to train young minds how to think critically and strategically, and although all speech and debate activities are great, I am particularly partial to policy debate. The number of policy debaters who go on to be highly successful in their chosen fields – and they aren’t all attorneys – is amazing. I’m happy to have this new shared interest with my son, and to be able to give a little back to the activity that gave so much to me.

Andy Reisman

Bermuda-based law firm Appleby on October 21, 2017, disclosed that it in 2016 it had been the victim of a data security incident last year which involved some of its data having been compromised. Within the last several days, in what has become known as the Paradise Papers data breach (not to be confused with the similarly tropical Panama Papers incident involving a different firm), presumably highly sensitive and confidential client information has been leaked to the press and subsequently been made available for public consumption. Without addressing the substance of any particular disclosures, the fact that this breach took place and the evolving fall-out is yet another reminder that law firms need to make reasonable investments in data security in order to meet their duties to protect client confidences. Elijah Data Security LLC helps law firms and SMBs to identify efficient solutions to reduce the risk of such damaging incidents, including performing information security risk assessments, penetration testing, and cybersecurity consulting.

Andy Reisman

Welcome to my website, andyreisman.com – I’m glad you found my first blog post! I’ll be posting occasional musings, deep thoughts, and industry observations. Anyone interested in learning more about the computer forensic services that my company Elijah provides should check out www.elijaht.com. For cybersecurity information regarding vunerability assessments, penetration testing, and information security consulting, please check out the Elijah Data Security page at www.elijahds.com. Thanks!

Andy Reisman