Admissibility of Evidence - Illegal Interception of Electronic Evidence - Electronic Evidence Defined
“Electronic evidence” is not one kind of evidence. It takes many forms. Electronic evidence can take the form of instant messages, text messages, emails, word processing documents, metadata, facsimiles, and information contained on a social network, chat room, website or a blog. Most of the terms, such as instant message, text message, metadata, and blog are not found in Black’s Law Dictionary, although they must be understood by attorneys in order to properly lay a foundation for their introduction into evidence or successfully oppose their admission into evidence, when necessary. Surprisingly, there is a paucity of New York case law regarding electronic evidence. The cases decided by the Federal courts are not applicable since they are decided under the Federal Rules of Evidence. [1]
Instant messaging (IM) is a set of communication technologies used for text-based communication between two or more participants over the Internet or other types of networks. IM–chat happens in real-time. Of importance is that online chat and instant messaging differ from other technologies such as email due to the perceived quasi-synchrony of the communications by the users. Some systems permit messages to be sent to users not then 'logged on' (offline messages), thus removing some differences between IM and email (often done by sending the message to the associated email account).
IM allows effective and efficient communication, allowing immediate receipt of acknowledgment or reply. However IM is basically not necessarily supported by transaction control. In many cases, instant messaging includes added features which can make it even more popular. For example, users may see each other via webcams, or talk directly for free over the Internet using a microphone and headphones or loudspeakers. Many applications allow file transfers, although they are usually limited in the permissible file-size.
It is usually possible to save a text conversation for later reference. Instant messages are often logged in a local message history, making it similar to the persistent nature of emails.[2]
Text messaging, or texting, is the act of composing and sending electronic messages, typically consisting of alphabetic and numeric characters, between two or more users of mobile phones, fixed devices (e.g., desktop computers) or portable devices (e.g., tablet computers or smart phones). While text messages are usually sent over a phone network, due to the convergence between the telecommunication and broadcasting industries in the 2000s, text messages may also be sent via a cable network or Local Area Network. The term originally referred to messages sent using the Short Message Service (SMS). It has grown beyond alphanumeric text to include multimedia messages (known as MMS) containing digital images, videos, and sound content, as well as ideograms known as emoji (happy faces and other icons).
Text messages are used for personal, family and social purposes and in business, government and non-governmental organizations for communication between colleagues. The sending of short informal messages has become an accepted part of many cultures. This makes texting a quick and easy way to communicate with friends and colleagues, including in contexts where a phone call would be impolite or inappropriate (e.g., calling very late at night or when one knows the other person is busy with family or work activities). Like e-mail and voice mail, and unlike landline or mobile phone calls (in which the caller hopes to speak directly with the recipient), texting does not require the caller and recipient to both be free at the same moment; this permits communication even between busy individuals..[3]
Electronic mail, or email, is a method of exchanging digital messages between people using digital devices such as computers, mobile phones and other electronics. Email operates across computer networks, which today is primarily the Internet. Today's email systems are based on a store-and-forward model. Email servers accept, forward, deliver, and store messages. Neither the users nor their computers are required to be online simultaneously; they need to connect only briefly, typically to a mail server or a webmail interface, for as long as it takes to send or receive messages.[4]
The term chat room, or chatroom, is primarily used to describe any form of synchronous conferencing, occasionally even asynchronous conferencing. The term can thus mean any technology ranging from real-time online chat and online interaction with strangers (e.g., online forums) to fully immersive environments. The primary use of a chat room is to share information via text with a group of other users. Generally speaking, the ability to converse with multiple people in the same conversation differentiates chat rooms from instant messaging programs, which are more typically designed for one-to-one communication. The users in a particular chat room are generally connected via a shared interest or other similar connection, and chat rooms exist catering for a wide range of subjects. New technology has enabled the use of file sharing and webcam to be included in some programs. This would be considered a chat room.[5]
Fax (short for facsimile), sometimes called telecopying or telefax (the latter short for telefacsimile), is the telephonic transmission of scanned printed material (both text and images), normally to a telephone number connected to a printer or other output device. The original document is scanned with a fax machine (or a telecopier), which processes the contents (text or images) as a single fixed graphic image, converting it into a bitmap, and then transmitting it through the telephone system in the form of audio-frequency tones. The receiving fax machine interprets the tones and reconstructs the image, printing a paper copy.[6] The Civil Practice Law and Rules define “facsimile transmission” as any method of transmission of documents to a facsimile machine at a remote location which can automatically produce a tangible copy of such documents.[7]
Metadata means "data about data.” Metadata is defined as the data providing information about one or more aspects of the data; it is used to summarize basic information about data which can make tracking and working with specific data easier. For example, a digital image may include metadata that describes how large the picture is, the color depth, the image resolution, when the image was created, the shutter speed, and other data. A text document's metadata may contain information about how long the document is, who the author is, when the document was written, and a short summary of the document. Metadata within web pages can also contain descriptions of page content, as well as key words linked to the content. [8]
When referring to a Word document, metadata would be such information as the author, the last date printed, date of file creation, the number of words, tracked changes, and similar information. The simplest way to see metadata is to go to "File" and then "Properties”. Using this method doesn't show all of the available metadata, but is enough for many purposes. Another alternative is to use a product that removes metadata but also shows you metadata in documents received from someone else.
There is also metadata for operating systems. Windows metadata is the information that a user can observe by selecting "File" and then the "Properties" function. The most common metadata values are known as MAC (modified, accessed, created) dates. These times/dates can be used to identify when files were created, or perhaps accessed.[9] Authentication of the MAC values assumes that the clock on the computer was accurate at the time the files were created or accessed. This can be problematic since the computer clock is so easy to change. “[10]
A website is a collection of related web pages, including multimedia content, typically identified with a common domain name, and published on at least one web server. A website may be accessible via a public Internet Protocol (IP) network, such as the Internet, or a private local area network (LAN), by referencing a uniform resource locator (URL) that identifies the site. All publicly accessible websites collectively constitute the World Wide Web, while private websites, such as a company's website for its employees, are typically a part of an intranet. Web pages, which are the building blocks of websites, are documents, typically composed in plain text interspersed with formatting instructions of Hypertext Markup Language (HTML, XHTML). They may incorporate elements from other websites with suitable markup anchors. Web pages are accessed and transported with the Hypertext Transfer Protocol (HTTP), which may optionally employ encryption (HTTP Secure, HTTPS) to provide security and privacy for the user. The user's application, often a web browser, renders the page content according to its HTML markup instructions onto a display terminal. Hyperlinking between web pages conveys to the reader the site structure and guides the navigation of the site, which often starts with a home page containing a directory of the site web content. Some websites require user registration or subscription to access content.[11]
A blog (a truncation of the expression "weblog") is a discussion or informational website published on the World Wide Web consisting of discrete, often informal diary-style text entries ("posts"). Posts are typically displayed in reverse chronological order, so that the most recent post appears first, at the top of the web page. "Multi-author blogs" (MABs) have developed, with posts written by large numbers of authors and sometimes professionally edited. MABs from newspapers, other media outlets, universities, think tanks, advocacy groups, and similar institutions account for an increasing quantity of blog traffic. The rise of Twitter and other "microblogging" systems helps integrate MABs and single-author blogs into the news media. Many blogs function as personal online diaries. A typical blog combines text, digital images, and links to other blogs, web pages, and other media related to its topic. The ability of readers to leave publicly viewable comments, and interact with other commenters, is an important contribution to the popularity of many blogs. However, blog owners or authors often moderate and filter online comments to remove hate speech or other offensive content. Most blogs are primarily textual, although some focus on art (art blogs), photographs (photoblogs), videos (video blogs or "vlogs"), music (MP3 blogs), and audio (podcasts). In education, blogs can be used as instructional resources. These blogs are referred to as edublogs. Microblogging is another type of blogging, featuring very short posts.[12]
[1] See Federal Rules of Evidence §901 which defines “authentic evidence”.
[2] https://en.wikipedia.org/wiki/Instant_messaging#Overview (last accessed May 30, 2017)
[3] https://en.wikipedia.org/wiki/Text_messaging (last accessed May 30, 2017)
[4] https://en.wikipedia.org/wiki/Email (last accessed May 30, 2017)
[5] https://en.wikipedia.org/wiki/Chat_room (last accessed May 30, 2017)
[6] https://en.wikipedia.org/wiki/Fax (last accessed May 30, 2017
[7] CPLR 2103 (f) (3)
[8] https://en.wikipedia.org/wiki/Metadata (last accessed May 30, 2017)
[9] Nelson & Simek, Smoke and Mirrors: The Fabrication and Alteration of Electronic Evidence, 79-Jun N.Y. St. B.J. 11 (2007)
[10] Id.
[11] https://en.wikipedia.org/wiki/Website (last accessed May 30, 2017)
[12] https://en.wikipedia.org/wiki/Blog (last accessed May 30, 2017)
“Electronic evidence” is not one kind of evidence. It takes many forms. Electronic evidence can take the form of instant messages, text messages, emails, word processing documents, metadata, facsimiles, and information contained on a social network, chat room, website or a blog. Most of the terms, such as instant message, text message, metadata, and blog are not found in Black’s Law Dictionary, although they must be understood by attorneys in order to properly lay a foundation for their introduction into evidence or successfully oppose their admission into evidence, when necessary. Surprisingly, there is a paucity of New York case law regarding electronic evidence. The cases decided by the Federal courts are not applicable since they are decided under the Federal Rules of Evidence. [1]
Instant messaging (IM) is a set of communication technologies used for text-based communication between two or more participants over the Internet or other types of networks. IM–chat happens in real-time. Of importance is that online chat and instant messaging differ from other technologies such as email due to the perceived quasi-synchrony of the communications by the users. Some systems permit messages to be sent to users not then 'logged on' (offline messages), thus removing some differences between IM and email (often done by sending the message to the associated email account).
IM allows effective and efficient communication, allowing immediate receipt of acknowledgment or reply. However IM is basically not necessarily supported by transaction control. In many cases, instant messaging includes added features which can make it even more popular. For example, users may see each other via webcams, or talk directly for free over the Internet using a microphone and headphones or loudspeakers. Many applications allow file transfers, although they are usually limited in the permissible file-size.
It is usually possible to save a text conversation for later reference. Instant messages are often logged in a local message history, making it similar to the persistent nature of emails.[2]
Text messaging, or texting, is the act of composing and sending electronic messages, typically consisting of alphabetic and numeric characters, between two or more users of mobile phones, fixed devices (e.g., desktop computers) or portable devices (e.g., tablet computers or smart phones). While text messages are usually sent over a phone network, due to the convergence between the telecommunication and broadcasting industries in the 2000s, text messages may also be sent via a cable network or Local Area Network. The term originally referred to messages sent using the Short Message Service (SMS). It has grown beyond alphanumeric text to include multimedia messages (known as MMS) containing digital images, videos, and sound content, as well as ideograms known as emoji (happy faces and other icons).
Text messages are used for personal, family and social purposes and in business, government and non-governmental organizations for communication between colleagues. The sending of short informal messages has become an accepted part of many cultures. This makes texting a quick and easy way to communicate with friends and colleagues, including in contexts where a phone call would be impolite or inappropriate (e.g., calling very late at night or when one knows the other person is busy with family or work activities). Like e-mail and voice mail, and unlike landline or mobile phone calls (in which the caller hopes to speak directly with the recipient), texting does not require the caller and recipient to both be free at the same moment; this permits communication even between busy individuals..[3]
Electronic mail, or email, is a method of exchanging digital messages between people using digital devices such as computers, mobile phones and other electronics. Email operates across computer networks, which today is primarily the Internet. Today's email systems are based on a store-and-forward model. Email servers accept, forward, deliver, and store messages. Neither the users nor their computers are required to be online simultaneously; they need to connect only briefly, typically to a mail server or a webmail interface, for as long as it takes to send or receive messages.[4]
The term chat room, or chatroom, is primarily used to describe any form of synchronous conferencing, occasionally even asynchronous conferencing. The term can thus mean any technology ranging from real-time online chat and online interaction with strangers (e.g., online forums) to fully immersive environments. The primary use of a chat room is to share information via text with a group of other users. Generally speaking, the ability to converse with multiple people in the same conversation differentiates chat rooms from instant messaging programs, which are more typically designed for one-to-one communication. The users in a particular chat room are generally connected via a shared interest or other similar connection, and chat rooms exist catering for a wide range of subjects. New technology has enabled the use of file sharing and webcam to be included in some programs. This would be considered a chat room.[5]
Fax (short for facsimile), sometimes called telecopying or telefax (the latter short for telefacsimile), is the telephonic transmission of scanned printed material (both text and images), normally to a telephone number connected to a printer or other output device. The original document is scanned with a fax machine (or a telecopier), which processes the contents (text or images) as a single fixed graphic image, converting it into a bitmap, and then transmitting it through the telephone system in the form of audio-frequency tones. The receiving fax machine interprets the tones and reconstructs the image, printing a paper copy.[6] The Civil Practice Law and Rules define “facsimile transmission” as any method of transmission of documents to a facsimile machine at a remote location which can automatically produce a tangible copy of such documents.[7]
Metadata means "data about data.” Metadata is defined as the data providing information about one or more aspects of the data; it is used to summarize basic information about data which can make tracking and working with specific data easier. For example, a digital image may include metadata that describes how large the picture is, the color depth, the image resolution, when the image was created, the shutter speed, and other data. A text document's metadata may contain information about how long the document is, who the author is, when the document was written, and a short summary of the document. Metadata within web pages can also contain descriptions of page content, as well as key words linked to the content. [8]
When referring to a Word document, metadata would be such information as the author, the last date printed, date of file creation, the number of words, tracked changes, and similar information. The simplest way to see metadata is to go to "File" and then "Properties”. Using this method doesn't show all of the available metadata, but is enough for many purposes. Another alternative is to use a product that removes metadata but also shows you metadata in documents received from someone else.
There is also metadata for operating systems. Windows metadata is the information that a user can observe by selecting "File" and then the "Properties" function. The most common metadata values are known as MAC (modified, accessed, created) dates. These times/dates can be used to identify when files were created, or perhaps accessed.[9] Authentication of the MAC values assumes that the clock on the computer was accurate at the time the files were created or accessed. This can be problematic since the computer clock is so easy to change. “[10]
A website is a collection of related web pages, including multimedia content, typically identified with a common domain name, and published on at least one web server. A website may be accessible via a public Internet Protocol (IP) network, such as the Internet, or a private local area network (LAN), by referencing a uniform resource locator (URL) that identifies the site. All publicly accessible websites collectively constitute the World Wide Web, while private websites, such as a company's website for its employees, are typically a part of an intranet. Web pages, which are the building blocks of websites, are documents, typically composed in plain text interspersed with formatting instructions of Hypertext Markup Language (HTML, XHTML). They may incorporate elements from other websites with suitable markup anchors. Web pages are accessed and transported with the Hypertext Transfer Protocol (HTTP), which may optionally employ encryption (HTTP Secure, HTTPS) to provide security and privacy for the user. The user's application, often a web browser, renders the page content according to its HTML markup instructions onto a display terminal. Hyperlinking between web pages conveys to the reader the site structure and guides the navigation of the site, which often starts with a home page containing a directory of the site web content. Some websites require user registration or subscription to access content.[11]
A blog (a truncation of the expression "weblog") is a discussion or informational website published on the World Wide Web consisting of discrete, often informal diary-style text entries ("posts"). Posts are typically displayed in reverse chronological order, so that the most recent post appears first, at the top of the web page. "Multi-author blogs" (MABs) have developed, with posts written by large numbers of authors and sometimes professionally edited. MABs from newspapers, other media outlets, universities, think tanks, advocacy groups, and similar institutions account for an increasing quantity of blog traffic. The rise of Twitter and other "microblogging" systems helps integrate MABs and single-author blogs into the news media. Many blogs function as personal online diaries. A typical blog combines text, digital images, and links to other blogs, web pages, and other media related to its topic. The ability of readers to leave publicly viewable comments, and interact with other commenters, is an important contribution to the popularity of many blogs. However, blog owners or authors often moderate and filter online comments to remove hate speech or other offensive content. Most blogs are primarily textual, although some focus on art (art blogs), photographs (photoblogs), videos (video blogs or "vlogs"), music (MP3 blogs), and audio (podcasts). In education, blogs can be used as instructional resources. These blogs are referred to as edublogs. Microblogging is another type of blogging, featuring very short posts.[12]
[1] See Federal Rules of Evidence §901 which defines “authentic evidence”.
[2] https://en.wikipedia.org/wiki/Instant_messaging#Overview (last accessed May 30, 2017)
[3] https://en.wikipedia.org/wiki/Text_messaging (last accessed May 30, 2017)
[4] https://en.wikipedia.org/wiki/Email (last accessed May 30, 2017)
[5] https://en.wikipedia.org/wiki/Chat_room (last accessed May 30, 2017)
[6] https://en.wikipedia.org/wiki/Fax (last accessed May 30, 2017
[7] CPLR 2103 (f) (3)
[8] https://en.wikipedia.org/wiki/Metadata (last accessed May 30, 2017)
[9] Nelson & Simek, Smoke and Mirrors: The Fabrication and Alteration of Electronic Evidence, 79-Jun N.Y. St. B.J. 11 (2007)
[10] Id.
[11] https://en.wikipedia.org/wiki/Website (last accessed May 30, 2017)
[12] https://en.wikipedia.org/wiki/Blog (last accessed May 30, 2017)
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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