eDiscovery people were lightly amused when a court was told last week that text messages from the Home Secretary to two senior police officers had disappeared when their phones were reset. This article comprises a recital of the reported facts, a bit of political prejudice, and a couple of questions for those who know much more about this subject than I do. It is not a challenge to the officers’ version of events, though it raises questions about the systems and procedures which allowed an alleged “glitch” to erase text messages to and from important law enforcement officers.
The occasion (reported here by the BBC) was the trial of climate change activists accused of “wilfully blocking the highway” at a protest outside a print works owned by Rupert Murdoch. Their defence solicitor said that the defendants “cannot receive a fair trial” as a result of an “IT glitch” which deleted messages from “two phones from two very senior officers in relation to the very issue at the heart of this case”.
There is quite a lot here even before you reach the alleged “glitch” and its effects. Why is the Home Secretary getting involved in police operations anyway? Politicians are concerned with politics and should not be actively involved in operations (yes, I know Churchill turned out in person for the Siege of Sidney Street in 1911, but he was criticised for it and forced to deny that he gave any operational commands).
Priti Patel is the most unpleasant politician to have held office in my lifetime. She seems dismayed to find that there are any constraints on her power, and would limit both the right to protest and the power of judges to control ministerial actions. She is also a friend of Rupert Murdoch, who exerts an unhealthy power over Boris Johnson’s government. It is unsurprising to find her contacting senior police officers by phone and text. She is entitled to be informed, but no more than that.
I have to say, however, that I don’t really see how any level of contact from Patel would help the defence, even if, as is alleged, there was “significant contact and significant pressure” from her. I am sure Murdoch would have expected the Home Secretary to jump to attention, as Conservative ministers always do for him, but it is hard to think that a senior police officer would – or could – act differently because a politician, however vile and strident, is shouting at him while he tries to do his job. Suppose, wholly theoretically, that Patel urged him to shoot the protesters, and threatened him with demotion to street patrols if he did not obey, what matters is what he actually did.
That is all irrelevant to my subject, which is about missing text messages. Let us assume firstly that the officers are telling the truth, and secondly that some time passed before anyone asked for the messages. There are experts who actually know about this stuff (I make no such claim) and there are tools which purport to recover data lost in this way, at least if the attempt at recovery is done quickly. There may also have been copies on the phone provider’s servers, though I suspect that this would not include the actual text, merely the record of its existence. Priti Patel also has (or had) copies of the messages, and could have helped if it was in her interests to do so.
There is an information governance point and a regulatory point here. Increasingly, organisations are expected to take care of data which affects others – data which touches on their privacy, records how authority has dealt with them, or is covered by regulatory control over its capture, keeping and disposal. The two police officers were engaged in work on behalf of the state; events and decision-making might well be scrutinised for any number of reasons to do with their interaction with the public. Should it be possible for potentially vital evidence to be destroyed, whether by deliberate deletion or a “glitch”?
And what is a “glitch” anyway? It can be very useful to blame a glitch – I couldn’t join your Zoom call, print the documents you required, or answer your email, because of a “glitch”. Every “glitch” is the result of a failure somewhere – not necessarily with you, the person explaining your failure, but with a hardware or software designer or with someone responsible for implementing and protecting systems. I would like to think that those in charge of police communications systems would have measures in place to prevent the deletion beyond recovery of operational text messages.
We don’t have much to go on with this story – some data was unavailable and an explanation is offered. This is a regular feature of discovery / disclosure disputes, and it is easy to assume both wrongful intent and permanent loss. We don’t even know what devices and operating systems were involved here or which service providers were used, so speculation is not necessarily helpful.
Twitter had plenty of people offering their tuppence-worth, ranging from one extreme to another, from “Of course the messages are recoverable” to “No chance”, along with confident assertions that the officer must have deleted them deliberately. My guess is that there was motive enough to get rid of them – that Poison Patel sought to interfere in matters beyond her sphere and that the officers were glad to be shot of them, whether or not Patel demanded their deletion. That falls short of suggesting that deletion was deliberate.
Nevertheless, it is worth asking two questions. In principle, and subject to whatever caveats, would resetting a phone usually put text messages permanently out of reach? Second, is there any method, enforceable by technology and not just rules, of barring the reset of an employee’s phone until the organisation’s data managers have had the chance to retrieve all the data?
I am not seeking essays here, or putting anyone to great trouble. I would, however, be interested in short reactions.