In litigation, messages from social media may contain information that is relevant or key to the case. However, as with all other evidence, social media evidence must be preserved and collected from the social media application in a defensible manner so that it can be properly authenticated when called upon to do so.
A recent Court of Appeal decision, R. v. Aslami 2021 ONCA 249, addressed the reliability of SMS and social media messages put into evidence by the prosecution. The prosecution claimed these messages were conversations with the appellant, while the defence suggested that some or all of the messages were created to frame the appellant. The prosecution’s evidence included messages that originated in a social media application called TextNow. These were collected by taking screenshots of the messages.
The Court of Appeal found several issues with the TextNow messages, including that the screenshots did not contain clear evidence about when the messages were sent. Nor did the prosecution provide evidence about how the TextNow application operated, the reliability of the application, or about any ability to manipulate its metadata. The Court noted that trial judges should be rigorous in examining this type of evidence both in terms of reliability and probative value.
In R. v. Aslami, the case against the accused was based primarily on circumstantial evidence, including the TextNow messages. The Court of Appeal found that the issues with respect to the circumstantial evidence were sufficient to raise reasonable doubt, and ultimately ordered a new trial.
There are many different social media applications, all with unique functionality, which makes collection of such messages particularly challenging. Ensuring your collection is defensible is an important first step. MT>3 regularly assists clients collect new types of social media evidence and is available to assist you.
Good information governance (IG) in an organization is an obligation that is often overlooked. Frequently IG is an afterthought that is viewed as tedious and time consuming, offering little value. We, at MT>3, know this is not true. Properly managed information allows for effectiveness and efficiency within an organization, especially as the world becomes more information centric. We are producing more information than ever, and we need to be able to access critical information quickly and easily.
The Report of the Independent Civilian Review into Missing Person Investigations was released earlier this week. The Report of the Honourable Justice Gloria J. Epstein was an independent review of the Toronto Police Services Board’s handling of missing-persons cases, including those involving serial killer Bruce McArthur. The Report contains 151 recommendations in response to investigative flaws found during the investigation. Recommendations 20 and 21 refer to a recommendation for Records Management Systems.
Justice Epstein recommends that information should not be siloed between police services. According to her, police services has used a confusing array of records management systems over the last few decades. A good records management system would have ensured that everyone involved in an investigation would have had easy access to the same crucial information while restricting access to information that should not be shared. If everyone had the same information, there would have been better coordination of the investigation. Patterns within the investigation would have been recognized sooner. This could have led to an earlier arrest of Bruce McArthur and saved lives.
Although the Report talks about “records management,” we like to speak about “information governance.” Records management connotes the management of documents whereas we are now managing far more than just documents. In the case of the Toronto Police Service, information can include surveillance videos, audios from interviews, and wiretaps. In 2021, managing information is crucial for an organization’s success. Proper systems in place can help organizations navigate the enormous amount of complex data that sophisticated operations create and rely on.
Contact Susan Wortzman (firstname.lastname@example.org) or Lisa Chung (email@example.com) at MT>3 to learn how we can advise you on your information management system and how we can use machine learning to help you organize your records in a defensible manner.
Lisa Chung and Susan Wortzman
Information Governance (IG) is never the sexiest topic for organizations. Records retention policies are even less so. These policies are generally considered when business is slow, in response to a cyber breach, or post-audit by a regulator. While many businesses and organizations are proactively updating and reviewing their holistic IG strategy, many others postpone what they consider to be a non-revenue generating aspect of carrying on their business, or in the case of a government agency a non-core aspect of their work.
In yesterday’s Globe and Mail article it is reported that the RCMP has ordered a review of its Records Retention Policies in response to a finding by the Civilian Complaints and Review Commission that the RCMP destroyed various records and transcripts relating to the death of Coulton Boushie. This review makes it clear why having a records retention policy is only one part of good information governance. While the RCMP had a policy in place, that was not enough in this case. In addition to the records retention policy, organizations also need to ensure that the policy is being properly implemented and that it integrates with a Legal Hold Policy which creates a trigger for when records should be preserved.
Best practice guidelines in Canada tell us that a Legal Hold should be triggered by parties who safeguard records as soon as litigation is reasonably anticipated or when an investigation has commenced. In those cases, the retention period that allows for the disposition of records in the ordinary course of business must be immediately suspended so that the potentially sought after evidence is preserved.
The Civilian Complaints and Review Commission announced in March, 2018 that it was investigating the death of Colten Boushie. A civil suit launched by Mr. Boushie was also filed before August 2018. Despite those announcement, the RCMP deleted police radio and telephone calls when the two year retention period arose, but after they should have been aware of the investigation and possibly the litigation. A Legal Hold Policy would have triggered the preservation of these records as soon as the RCMP became aware of the investigation.
When developing an IG Strategy there are a series of policies and procedures that should all be in place to ensure data is properly managed. All together these make a defensible IG Strategy.
For more information about developing an IG strategy, contact Susan Wortzman at firstname.lastname@example.org.