A US case was struck out, and the plaintiff and his lawyers suffered financial sanctions, after clever experts spotted that the emoji on a screenshot of a text was not the one in use on the date of the alleged transmission. Most cases don’t involve the detailed expert appraisal required to spot things like this, but it is prudent to consider the possibility that a document may not be all it seems to be.
In all the talk about new forms of discovery data, it is easy to miss the fact that we have gone in a circle in at least one respect. The ancient Egyptians used hieroglyphics to mean something more usually conveyed in words. Here, for example, is a cat, something Egyptians were fond of:
Ages pass, and we are again reduced to using little pictures to represent things. Here, for example, is the emoji representation of a cat:
Actually it is not “the emoji representation of a cat”. It is one of the many emoji representations of a cat. Every man and his dog has his own cat emoji, it seems, and this is Twitter’s variant. I got it from this page, which shows which tech company uses which emoji cats. It would be easy to be caught out by that, wouldn’t it, if you, say, mocked up a text message and used the wrong emoji? Read on, to see how that matters.
First, though, a couple of digressions, one into the world of Asterix and one into a brief history of forgery.
In Asterix and Cleopatra, the Gauls communicate with the Egyptians via a translator:
How fanciful, you say, that little pictures might be turned into something meaningful in words when you know what they represent.
You might derive long explanations from a series of pictures:
The bare meaning – this symbol is that word – is only the start. What if the precise choice of this emoji means something different from that emoji? It gets worse. What if the placing of an emoji within text itself conveys something agreed between the sender and recipient but meaningless to the investigator? Spies have been doing similar things for centuries.
Until relatively recently, detecting forgery or hidden messages involved analysis of print or writing on paper: this paper or ink wasn’t available at the alleged date of creation; this typewriter wasn’t the one used to make this document; hold the paper to a candle and you will see hidden writing. Computers brought new challenges – a corruption case in Pakistan involved a document purportedly dated from 2006 but using Calibri, not widely available before early 2007.
There were new opportunities to fabricate evidence, and new skills and tools to detect fabrication. Analysis of metadata enabled us to spot that emails had not come from the alleged sender, or that photographs had not been taken on the date claimed for them. Photoshop and deep-fake videos make us question everything we see – and by “us” I mean all of us, not just professional investigators. We don’t, if we are prudent, accept what we see on social media without pausing to consider where it came from, who might have made it, and why.
Let’s move, at last, to the case which set me thinking of all this. It is Rossbach v. Montefiore Medical Center (S.D.N.Y. 8/5/21), and Philip Favro of Driven has written it up in an article headed Fabricated Text Message Case Highlights the Importance of Emojis in E-Discovery
Briefly, the plaintiff alleged sexual harassment and produced a picture of a text message. The picture, taken on another phone because the original phone was allegedly damaged and inaccessible, included a “smile” emoji. Clever detective work (by Dan Regard and iDS) showed that that version of emoji could not have appeared on the first phone because that could not run a version of the operating system which used that version of the emoji.
We are back, in a way, to the old “this typewriter wasn’t the one used to make this document” idea mentioned above.
Should every litigating lawyer understand all this and commission expert views on every document? Of course not. Should every lawyer be aware of the possibility of forgery and know that experts may be able to help with those triggering suspicion? Some cases set the investigating nose twitching, as with Asterix’s gut assumption that the hieroglyph-speaking contractor was lying. You don’t need to know how to find and fix everything, but you do need to keep alert to the possibility – stronger in some cases than others – that all is not as it seems.