Big Brother Really Is Watching Following Computers Trails
The "Melissa Virus" epidemic in March has a very serious message to computer users. Investigators took about one week to trace the virus to New Jersey and charge a person with criminally unleashing it. How could they trace this one virus through millions of e-mail messages if each message did not leave a trail to be traced? Computers around the country stored the information showing the trail.
Our society both surrenders and gathers information with unbelievable ease. "Big businesses" gather customer data with enormous "vacuum cleaner"-type processes and store the data. The data are both sold and manipulated so businesses can focus their efforts directly on your wallet.
Believe it or not, we willingly help in this process by encouraging computers to track our every move. We have credit card companies tracking our purchases, airline frequent flier programs tracking our travel, frequent shopping cards tracking our purchases, credit applications tracking our income, mobile phones tracking our movements and calling patterns and more. Once the information is digitized, we lose track of it and never really know where it goes or what is done with it.
In short, "big brothers" really are watching us, and we all gave them the "binoculars" and "telescopes" to make it easier and more intrusive.
Electronic Information from PCs and Other Sources
PCs both store and disseminate private information about their users. Greater usage means a greater chance to find important information. Internet devotees, our society's "power users" of personal computers, create more data than most. Logging onto a web site records that you were there. An unbelievable number of personal stock portfolios have been created at one or more web sites that can track investments (whether secret or disclosed). Preferences and shopping patterns are tracked at each site.
Let's not forget the files that save copies of images from the Internet (called your "cache" files) and those that list the sites you visit. Then there are the ubiquitous "cookies," where web sites put information on your computer to use when you return (presumably to tell your computer about your visit so you don't have to see the same advertisement each time you arrive).
If this is not enough, even those dwindling few who never surf the Internet create a trail of electronic data on their computers. Most word processing programs allow you to "undo" a change. Where do they keep this information? Usually with the document that was changed. Then, as Ollie North and Fawn Hall learned more than a decade ago, the "delete" key does not obliterate a file. The command merely tells the computer that it can use that space again when it gets around to it. (With multi-gigabyte drives flying out of manufacturers, will they ever really "need" to use that part of the hard drive again?) Files generally remain intact until they are overwritten many times.
Information Is Power!
If you are wondering, "what does this all mean?" the answer is simple—there is a wealth of information available to piece together anyone's life, habits, practices, documents, messages, investments, etc. In bankruptcy, identifying and tracing assets can be essential. In litigation, where credibility and proof are put to the test, the right information can make or break a case. ("Information is power," remember?) But you need to know where to find the information to do you any good. Our digital age can give you lots of places to find "smoking guns."
Suppose you receive a disk with, or an e-mail of, an important document. Would you like to know what was edited into and out of that document? Try the "Undo" feature and recreate the changes. If the document came on a disk, you can see if anything else came with it. You may be amazed at the information that is freely/accidentally distributed that a simple search or utility program would reveal.
What if you are or represent a trustee or lender that has a liquidating debtor's computers or other office equipment? Where would you look for important information? "The computers," of course, is the easy answer. What about other office equipment? Printers store documents to print them, as do digital copiers and modern fax machines.
Usually, the most recent information is the best information available. Why not look in the word processing and spreadsheet programs for the list of files that were used last? You can also use the "Find" command to have the computer list the files that were created or changed during a specific time period. These can be a virtual treasure trove of useful information.
Suppose the debtor (or the corporate debtor's insiders) were e-mail or Internet "junkies." You might be able to see their e-mail traffic discussing plans or improper activities. Microsoft learned about the power of e-mail (and how pesky retaining it can be) in its antitrust trial when the government paraded damaging e-mail messages throughout the courtroom.
Cache and cookie files on Internet junkies' computers might also lead you to sites where individual (or corporate) investments were tracked. The cookies that quickly took them to this information on the Internet might include log-in and password data to speed someone else down the very same trail. (Computers were designed to store information, remember?) Cookies can become a trail of crumbs far more lasting than the one left by Hansel and Gretel.
Getting Information the Hard(er) Way
It would be remarkable for a truly crafty player to leave such important information where it could be easily accessed. Yet, even the most ingenious overlook some electronic data fundamentals. If data files are missing or destroyed, an entire industry exists to "recover" them from both natural and man-made disasters (also known as "user errors"). Depending on the potential recovery, it could be worth spending the money to look for these treasure troves. This would include requiring parties to produce both paper and electronic information (if they did not voluntarily surrender it through repossession or being removed from possession by a trustee).
Suppose it is critical to know when or where in a particular town someone used a cellular phone. Almost everyone knows that the phone company's records (and invoices, for that matter) list the date, time, duration and city of the call. However, as a high-profile criminal defendant recently learned, the records can also include information on the tower(s) that handled the call. Given the limitations on transmission distances, this might prove (or disprove) a claim that the call came from a particular location.
If you discover the favorite Internet sites or service providers your subjects used, a subpoena served upon them might reveal important information. (Here's a hint—check out their "bookmarks" or "favorites" list first.) You might also consider subpoenaing frequent travel programs to establish that someone was not where they said they were. It could also include a subpoena to credit card and retail companies to verify or disprove travel expenses or key purchases. However, be prepared for a fight from both your adversary and the provider since many providers will put up some resistance to protect their customers' "privacy," even though privacy is rarely an evidentiary privilege.
Never before has so much information been available on so many. If you need information, times have never been better, and you've never had so many sources. If, on the other hand, you prefer privacy, these are the worst of times (and getting worse every day). Knowing how and where this information is stored can make all of the difference in the world—particularly for those of us who grew up in the old world where paper was king.