Do Edward Snowden’s revelations about NSA spying have any relationship to eDiscovery?
Until now, the answer probably would have been no. However, the Internet Cases blog has an interesting recap of a recent district court case in Texas about eDiscovery and metadata that makes that connection.
Metadata is discoverable.
In this case, U.S. v. Post (S.D.Tex. January 30, 2014), EXIF data in a photo was used to identify the location of an alleged child pornographer. The fact that photo metadata is discoverable and legitimate evidence in court is nothing new. Most famously, millionaire fugitive John McAfee was found with the help of metadata in a photo published by Vice.com.
But this ruling was interesting for two reasons. First,the court made an important analogy between digital metadata and DNA evidence. Specifically, just because a law breaker doesn’t know that leaving DNA evidence or metadata in a public space could someday incriminate them in a crime, there is no expectation of privacy.
In addition, thanks to the swirling controversy about the National Security Agency’s broad and potentially unconstitutional collection of personal metadata, the court found it necessary to preemptively distinguish its ruling from any NSA-related metadata lawsuits.
Whatever the ultimate outcome of that issue in higher courts, whether an individual lacks a privacy interest in dialed numbers because those numbers are necessarily disclosed to his phone company is a much different question than whether an individual loses his privacy interest in an item because he voluntarily makes it publicly available on the internet.
Snowden taints the word in future eDiscovery.
Whatever your opinion of Edward Snowden, it is interesting that even in a criminal case that has no possible relationship to national security or spycraft, the court found it necessary to distinguish this case from the NSA metadata-collection controversy.
The disclaimer in this ruling was almost certainly unnecessary – this is a very narrow ruling related to evidence collected in a focused criminal investigation. It’s hard to imagine that any federal court ruling related to the NSA’s collection of metadata will impact the collection of data in criminal cases. But thanks to Snowden, even the word metadata is now so tainted that lawyers may see many more such preemptive declarations.
Find out everything a litigator needs to know about native files in eDiscovery in our more recent Litigator’s Brief here.