Spoofs, Fakes, and Manipulation: The Challenge of Validating Messages and Social Media Content on Mobile Phones

We would all like to believe that when we view a photo, the contents therein are a true and accurate representation of what they purport to be. Unfortunately, this is not always the case. We are all aware of software tools that allow for manipulating photos to create convincingly real fakes. Sometimes, these fakes are so convincing that veracity cannot be determined by examining the picture alone with the naked eye. 

This has been true with photos for a long time and is true today with videos using deep fake technology. Software applications are widely available that allow a person to manipulate video or audio in order to make it appear that he or she is saying something that they never said. Like with the Reface App[i],where a person's face can be replaced with another's. It seems that the technology has advanced to the point where anyone can create a very convincing fake video of events and do so using an application on his or her phone. The individual need not have any special expertise in creating videos, all they need is the software.

Additionally, a person can alter or fake text message communications, and someone can do it with a low level of technical sophistication and relative ease.

In mobile device forensics, the best method to collect the evidence from a phone is performed by utilizing cell phone forensics software and hardware. Before we cover the problems with verifying pictures and screenshots of social media content and text messages, it is pertinent to have a high-level overview of how data is collected.

The forensic acquisition process encompasses all the methods and procedures utilized to collect digital evidence. This collection process can take many forms with mobile phones and the data from mobile devices can reside in numerous locations. With mobile phones, the data extraction methods used are determined by multiple factors, including the cell phone's make, model, operating system version, and physical damage, to name a few.  

How Mobile Phone Forensic Tools Verify Evidence  

When a forensic acquisition is performed on a computer hard drive, a bit-for-bit duplicate of the data is created. In other words, all the data contained on the hard drive, including existing data, deleted data, and unallocated space, are collected in a forensic image file. This forensic image file is exactly like the data contained on the computer hard drive. However, a forensic acquisition of a mobile device is different, as it almost always has to be powered on.

The forensic data collection process from the mobile device is better called a "forensics extraction," as data is extracted from the device instead of a perfect bit-for-bit copy of the evidence item. With the mobile phone powered on, the forensic software cannot access some areas of data. However, that inaccessible data is usually of little to no value evidentiarily.

Following the forensic copying comes the hashing process. A mathematical algorithm is run against the copied data, producing a unique hash value. This hash value can be thought of as a digital fingerprint, uniquely identifying the copied evidence exactly as it exists at that point in time.  

Preemptively raising the question, “Why bother hashing the forensic copy of a cell phone if it is not exactly the same as the original evidence like a computer?” Well, suppose you made a forensic copy of a phone today and hashed it, and sometime later an opposing attorney claimed you manipulated data. In that case, you could go back to the original forensic copy to prove you did not.

Manual Examinations

To have confidence in the evidence gathered from mobile phones without forensic software and hardware begins with a correctly performed manual examination. A physical acquisition is the best option with mobile phone forensics, followed by a logical or filesystem acquisition. Manual examinations should be utilized as a last resort when other forensic acquisition methods are not possible. The risk of changing or deleting evidence on a mobile phone is significantly increased when performing a manual examination because it introduces a higher potential for human error.  

A manual examination of a cell phone involves an examiner manipulating the mobile phone to the different areas of information, such as text messages or call history, and taking pictures of the screen with a camera. A correctly performed manual examination will reduce the risks of modifying the original evidence. Therefore, a manual examination is a viable option when acquiring cell phone evidence with correct procedures and thorough documentation.

The quality of a manual cell phone examination depends on the competency of the examiner. For example, suppose proper procedures and detailed documentation are not part of the manual examination. In that case, it can call into question whether or not the evidence was properly preserved and if tampering, intended or otherwise, occurred during the examination of the cell phone.

Pictures only tell part of the story. What happened during the time between the individual pictures being taken? Pictures alone do not provide any real verification that the phone evidence has not been altered. A video camera running continuously throughout the manual examination process, with no breaks, pauses, or edits, is the only method for evidence verification in the absence of a mathematical hash value. The video should begin before the phone is powered up. At the end of the examination, the phone should be powered down in view of the camera.

In my experience, it is uncommon for forensic examiners to properly follow best practices and protocols when it comes to manual examinations. A video recording rarely accompanies the photos of the mobile phone contents.

Why It Matters: Fakes Are Spoofs Are Real and On The Rise

Social Media Fakes

The pervasiveness of social media in our culture and the frequency at which users access these platforms to communicate, share, and consume content have broadened and deepen the amount of courtroom evidence. However, social media evidence has one particular vulnerability, the ability to be altered or forged.

It does not take a high degree of technical capability or access to special software to create fake social media posts. Anyone can find websites that allow you to make fake social media posts and messages that look real, indistinguishable from authentic content.  

For example, here are posts I made between myself and you, the reader, as a means of illustration. In addition, I can create fake posts and messages for all major social media platforms. The following faked social media messages and posts were created using a web-based application that is both simple to use and free.[ii]

Facebook

The time, date, location, content, comments, reactions, and chat messages contained in these photos are all fake.

Deadlocked Philadelphia Jury Forces Last Minute Settlement in Catastrophic Case

(JUNE 8, 2021) Zarwin Baum attorneys Ted Schaer and Greg Mallon defended a local Fortune 100 Company during a heavily-contested two-week IN PERSON JURY trial in the Court of Common Pleas of Philadelphia. The trial involved horrific injuries incurred by a pedestrian struck by the defendant’s vehicle in the roadway. Despite an admission of negligence by the Company, Schaer and Mallon's unique trial strategy caused enough doubt in the Juror’s minds to prevent a verdict following 15 hours of jury deliberations on the issues of recklessness, comparative negligence, and damages. The matter was able to be settled on favorable terms after the jury informed the court on two occasions that they were hopelessly deadlocked. This was one of the first large-scale catastrophic injury trials under Philadelphia’s strict Covid protocols that required Schaer and Mallon to wear masks, microphones, and sit apart from each other. Despite these logistical obstacles, the Zarwin attorneys were still able to connect with the jury to sufficiently convince, at least a few of them, of the plaintiff’s own fault. 

Baumann, Gant & Keeley obtains full defense verdict in wrongful death products liability trial

(May 20, 2021) - Gary Baumann and Michael Pedowitz from Baumann, Gant & Keeley recently obtained a complete defense verdict in a Palm Beach County, Florida wrongful death trial where the Plaintiff asked for $5.6M in closing argument. The facts of the case and trial are as follows:

On March 19, 2019, plaintiff’s decedent Arshia Poursartip, 38, a sales clerk, was driving a car eastbound in Palm Beach County when he lost control and struck a commercial flatbed truck in front of him. The truck had underride guard model ICC-PM16K attached to the rear.

Pegah Jones, acting as the personal representative of her late brother’s estate, filed a wrongful death lawsuit against Blue Ridge Manufacturing and Rayside Truck & Trailer. The lawsuit included products-liability claims for strict liability, design defect, manufacturing defect and improper installation of an allegedly defective underride guard that caused, or contributed to, Mr. Poursartip’s death. The estate’s counsel retained a biomechanics expert who opined that if the guard had worked as intended, Poursartip would have only suffered minor or moderate injuries. Plaintiff’s counsel further noted that neither defendant did any prior testing of the subject guard.

The estate’s counsel also argued that Rayside failed to follow Blue Ridge’s instructions for installing the guard. The estate’s counsel claimed that Blue Ridge’s directions called for the welds to each be three inches. However, per plaintiff’s counsel, Rayside’s welds were shorter than that.

The defendants maintained that the guard was not defective. The defendants noted that there had been no prior complaints regarding the guard in question. The defendants also contended that underride guards are designed for crashes where the front of a trailing vehicle strikes the back of a truck. The defense claimed that the guard was not meant to address impacts where the side of the trailing vehicle hits the truck’s rear. Plaintiff’s counsel countered that the side of a car striking the rear of a truck was foreseeable, and that the guard should have thus been designed to withstand that type of impact. The defendants’ mechanical engineering expert also opined that the forces of the subject crash greatly exceeded the known tolerance of properly designed underride guards that met required standards. The defense retained a biomechanics expert who opined that it was impossible to tell whether the decedent’s fatal injury resulted from a direct impact with the flatbed or from the sudden acceleration/deceleration forces on Poursartip’s body during the crash. The expert further opined that Poursartip would have still sustained these forces even if the flatbed truck had an underride guard with the alternative design put forth by the plaintiff.

Plaintiff’s counsel argued that a non-defective underride guard would have prevented Poursartip’s head from hitting the flatbed.

The estate sought recovery of medical or funeral expenses along with damages for Poursartip’s mother’s loss of support and services, and her pain and suffering. Plaintiff's counsel asked the jury to award $5.6 million.

The jury issued a defense verdict. It found that there was no negligence by either defendant that was a legal cause of Poursartip’s death. The jury also found that neither defendant placed a guard on the market with a defect that was a legal cause of Poursartip’s death. (Baumann, Gant & Keeley, P.A.)

Poole Shaffery & Koegle Wins Summary Judgement in Favor of Medical Device Manufacturer

(MAY 14, 2021) - On May 14, 2021, our team successfully obtained another victory by way of summary judgment in favor of a medical device manufacturer. In Jose Riera, et al. v. Mecta Corporation, et al. (United States District Court Central District of California Case No. 2:17-cv-06686-RGK-JC), plaintiffs alleged that they suffered brain damage and resulting long-term and/or permanent cognitive impairment after undergoing electroconvulsive therapy (“ECT”) with a device manufactured by our client. Plaintiffs specifically argued that the warnings provided by the manufacturer were inadequate.

We argued in the motion, among other things, that creating a triable issue of fact regarding whether the manufacturer’s warnings were inadequate is insufficient to survive summary judgment; a plaintiff must also establish that the purported inadequate warnings actually caused their injuries. For a number of reasons, causation could not be established; however, the dispositive fact for the summary judgment motion was that Plaintiffs failed to create a triable issue of fact as to whether their prescribing ECT psychiatrists would have changed their decision to prescribe ECT had they been provided additional warnings from the manufacturer. Motus v. Pfizer, Inc., 196 F. Supp. 2d 984, 995-96 (C.D. Cal. 2001), aff’d, 358 F.3d 659 (9th Cir. 2004).

California law follows the learned intermediary doctrine. As applied to a manufacturer of a medical device utilized by a doctor in a hospital setting, the manufacturer has a duty to warn physicians, not patients directly. Accordingly, if a physician either ignores, disregards, or confirms that information provided by the manufacturer would not alter their decision to prescribe treatment with that specific device, a plaintiff cannot establish that a manufacturer’s purported inadequate warnings caused their injuries.

Ultimately, the Court agreed with our argument that the learned intermediary doctrine applied to the facts of this case and further that plaintiffs failed to create a triable issue with respect to whether their prescribing psychiatrists would have changed their decision about treatment if they were provided additional warnings. Notice of appeal has been filed. - (Poole Shaffery & Koegle, LLP)