Recent technological innovations have resulted in a wealth of new evidence gathering and review techniques. From high profile uses of technology such as police use of GPS trackers at issue in United States v. Jones to more mundane uses of embarrassing social media content as impeachment evidence, technology has forever changed the practice of law. At this point, many lawyers are at least conceptually familiar with the use of social media content and smart phone records as evidence. This is in large part due to the omnipresence of those items in society. Fewer lawyers have begun to exploit the underlying evidence available that can explain some very important evidentiary questions.
By “underlying evidence,” we are of course referring to metadata: the hidden but discoverable record of data. Metadata can provide a wealth of information about where, when, and how particular actions occurred via the use of technology. While some metadata such as timestamps are readily available, other forms of metadata are hidden from plain sight but can be relatively easily accessed with the right technical expertise. While there are many different uses for all sorts of metadata, this article is primarily concerned with metadata for photographs, particularly photographs taken on smartphones or other similar devices and digital cameras. Photo metadata can be a very useful evidentiary tool that most lawyers have not yet learned to use and abuse.
What Is Metadata and Where Can I Find It?
Some may have become familiar with the concept of metadata several years ago during the NSA mass surveillance revelations by Edward Snowden. To recap: the NSA was accused of collecting and storing the metadata of every phone call made by anyone that it could get its hands on. The NSA’s rationale was essentially that cell phone records could be used to track terrorists having covert conversations. What was it that the NSA was actually collecting?
The NSA was primarily collecting phone call metadata – in other words, not the phone call audio, but the information about the circumstances of the phone call. Essentially, the NSA collected information about the time of the call, the origin of the call, and the destination of the call. This information would theoretically allow the NSA to track to pattern of communications between Sam Sleeper Agent in the United States and Tom Terrorist in Middle East. While the NSA would not be able to record the contents of the call without seeking a warrant, it could use pre-existing metadata to demonstrate a connection between Sam and Tom that could then lead to a search warrant or phone tap authorization.
The NSA metadata revelations are instructive primarily for helping to explain what metadata is. Metadata is not the content of an electronic communication or file, but it does provide basic introductory information about that communication or file. Photograph metadata especially contains a wealth of useful data. The metadata of a photograph taken via cell phone or other device such as a digital camera will often include who owns the photo, the copyright information, timestamp, contact information for the owner of the device, information about the device used to create the photo, and exposure information (shutter speed, flash, etc.). This information has a wide variety of potential uses, but the three most important are likely evidence gathering, use at trial, and for use as impeachment evidence.
Use of Photograph Metadata in Gathering Additional Evidence
In many cases, parties will take photographs for the purpose of using them as evidence in later litigation
. This practice is particularly common in auto accident cases, where the parties seek to document the scene of the accident and any damage. These photos are useful for use at trial and their metadata may make it simpler to request additional discovery. Knowing which device took the relevant pictures at a specific time allows an attorney to more narrowly tailor a discovery request to not only help find the most relevant evidence, but also to limit the objections opposing counsel can make.
Additionally, many photos are shared and passed around as digital files. In such a circumstance, it is likely that a photo turned over in discovery was not taken by either of the parties. The metadata could identify the person or camera that took the picture, thereby resulting in locating another potential witness or source of additional photographs.
Use of Photograph Metadata at Trial
As the saying goes, a picture is worth a thousand words. Unfortunately, the metadata accompanying any digital photograph is only worth the number of words it actually contains, but that information can still be very useful for several purposes. First, the metadata information can help authenticate the photograph. A photograph containing accompanying metadata can make it clear to the judge or jury the circumstances under which the photo was taken and help prove that the photo is genuine.
Second, and more importantly, the metadata information can be used to help prove elements of the case. The metadata timestamp can help establish when the photo was taken to prove that the photo accurately depicts events in the moment that they occurred. This type of information is valuable and often irrefutable proof because metadata is recorded automatically. The photographer has no control over the input of metadata, which makes it uniquely trustworthy. Also, in many cases, location tagging may be activated on cell phone pictures, which can also help establish the location that the photo was taken for venue purposes and to prove the proponent’s case.
Photograph Metadata as Impeachment Evidence
Like the use of metadata to prove a case, metadata can also be used to impeach. If the photographer and the photograph metadata disagree on when the photo was taken, is it more likely that the jury will believe the human or the technical record? In most cases, the metadata record will be more credible than a person that may have motivation to lie. Similarly, the photo metadata can be used as a tactic to discredit another witness’s version of events. While the time and location data are the most useful components of metadata, the other recorded information can also be helpful to evaluate the quality of the photograph. For example, if the metadata indicates no flash was used, perhaps that could explain the blurriness of portions of the photograph and therefore impeach the reliability of the photograph itself.
In sum, there are many uses for digital photograph metadata. Metadata can be helpful at all stages of the case in both helping to create a record of the client’s version of the facts and in seeking additional evidence. The Law Offices of Yuriy Moshes is a full-service employment and real estate law firm practicing in New York and New Jersey.