Electronically Stored Information – ESI

In 2020, an investigator will need to be skilled in ESI to succeed in the industry. All aspects of personal and business activity and transactions are becoming controlled by ESI. Let’s take a look at a few examples. The most important fact for investigators to be aware of in the next 3 – 5 years is that there will be a significant difference in understanding of ESI between different people in the marketplace. This creates a huge opportunity for investigators who are experts in this area to create value for their clients cases.

Criminal Defense – This first example demonstrates that clearly. In this case, it appears that a state-sponsored conspiracy may have been in place to set up a high profile individual to be arrested to thwart his political ambitions.  the target was Dominique Strauss-Kahn, then head of the International Monetary Fund and leading contender to unseat Nicolas Sarkozy as president of France in the April 2012 elections. The team who executed this scheme would likely posses above average tactical skills. I the end however, the worst case scenario for the target was defeated by ESI. In one of the most high-profile cases in the news, the culpability of the alleged perpetrator is called into question by facts obtained from electronic records. Just a few years ago, this exculpatory evidence may not have been readily available, and the prospects for the subject might be different. In this case, it is also important to recognize that

DSK was alerted to the potential problem when it appeared his Blackberry was compromised. Private text messages he sent ended up in the hands of the political party headquarters for his opponent. As we now know, he ended up being arrested for sexual assault in New York City based on the allegations of a maid at a hotel. The charges were later dismissed, but it turns out the investigation discovered a more serious set of inconsistencies between individual statements and electronic records. The story describes how text message records, hotel key-swipe time stamps, security camera video, and travel information was extracted, and compared with witness statements. In one instance, a cell phone record was discovered where a member of the hotel security team was communicating with the security detail of the French President Sarkozy, the political rival of DSK. Another email was discovered where Colonel Thierry Bourret, the head of an environment and public health agency, claimed credit for “bringing down” DSK. Later, a security camera digital record found the hotel security man and another person high-fiving each other after the victim reported to her supervisor. It was also discovered that another Blackberry owned by the target had its GPS circuitry defeated preventing the phone from sending out signals identifying its location. For a phone to be disabled in this way, according to a forensic expert, required technical knowledge about how the BlackBerry worked.

In the end, the criminal charges were dropped, but the political future of DSK was damaged, possibly for good. The takeaway for investigators is that the understanding of ESI records is inconsistent, even within the security industry.

Online Life Indistinguishable From “Real” Life – Of course, Facebook investigation is a hot subject. various seminars and courses are on the market presenting methods of doing investigation within social networks. The question of online activity vs. real world activity is important enough for courts to begin issuing opinions on the subject. The opening paragraph of a case decided last week begins as follows:

“Facebook helps you connect and share with the people in your life.” But what if the people in your life want to use your Facebook posts against you in a civil lawsuit? Whether and to what extent online social networking information is discoverable in a civil case is the issue
currently before the Court.

The question being argued was a claim made that the court should compel a party to divulge their Facebook password to the opposing party for discovery of posts and photos in the Facebook account. The case involved a personal injury claim where the injured parties allege serious injuries as a result of an auto accident. The opposing party requested the Facebook information claiming a good faith belief that it would be relevant to the defense of the injury claims. Defendant says that certain posts on the injured parties Facebook account contradict her claims of serious and severe injury, Specifically, Rosko claims that Largent had posted several photographs that show her enjoying life with her family and a status update about going to the gym. After considering privacy and priviledge arguments, the court ruled on November 7th 2011 as follows:

IT IS HEREBY ORDERED that Defendant’s Motion to Compel be, and hereby is, GRANTED.
IT IS FURTHER ORDERED that Plaintiff Jennifer Largent shall turn over to Defense counsel her Facebook username email and password within 14 days of the date of this Order. Plaintiff shall not delete or otherwise erase any information on her Facebook account.

Investigators should be continually aware of cases such as this, and the developing case law regarding electronic information.

Emails As Binding Contracts – Communication transaction by email is ubiquitous and valuable. The legal impact of email communication is also becoming more significant. A 2000 Federal law recognized electronic signatures as being legally valid, creating an interesting opportunity for forward thinking investigators to utilize email messages as legal documents. In this article, one adaptive viewpoint considers the consequences of the E-SIGN law combined with email engagements. “In determining whether an e-mail or e-mails formed a contract, courts scrutinize whether the e-mail contains the essential terms, whether it shows a final offer and acceptance with the intent to be bound and not merely a continuing negotiation, and whether it comes from the party to be charged.”

“When composing or responding to e-mails, it is important to consider whether the e-mail or a series of e-mails could be construed as forming a contract – specifically, whether such e-mails contain an offer or acceptance with the intent to be bound and the essential terms described above and whether a typed signature, including just the automatic signature block, appears at the end of the e-mail. Policies and practices emphasizing the use of contingencies and qualifiers in e-mails can prevent the creation of unintentional contracts.”

Liability Documentation – Withing the infamous Penn State assault case, internal emails could be damaging evidence of an ongoing concealment of activity. The extent of liability to third parties beyond the perpetrator could hinge on this electronic information. According to the Wall Street Journal article, an Aug. 12, 2005, email to Pennsylvania State University President Graham Spanier and others, Vicky Triponey, the university’s standards and conduct officer, complained that Mr. Paterno believed she should have “no interest, (or business) holding our football players accountable to our community standards. The Coach is insistent he knows best how to discipline his players…

The confrontations came to a head in 2007, according to one former school official, when six football players were charged by police for forcing their way into a campus apartment that April and beating up several students, one of them severely. That September, following a tense meeting with Mr. Paterno over the case, she resigned her post, saying at the time she left because of “philosophical differences.” Dr. Triponey said: “There were numerous meetings and discussions about specific and pending student discipline cases that involved football players,” which she said included “demands” to adjust the judicial process for football players. The end result, she said, was that football players were treated “more favorably than other students accused of violating the community standards as defined by the student code of conduct.”

In this case the difference is that the he-said she-said controversy is documented by email records and other ESI. Dr. Triponey sent an email to Messrs. Spanier, Curley and Puzycki summarizing the meeting and sharing her thoughts and concerns. In the email, which was reviewed by The Wall Street Journal, she said that football players were getting in trouble at a “disproportionate rate” from other students, often for serious acts. She said her staff had tried to work with the athletic department, sometimes sharing information, but that whenever her department initiated an investigation into a football player, the phones lit up. “The calls and pleas from coaches, Board members, and others when we are considering a case are, indeed, putting us in a position that does treat football players differently and with greater privilege.”

As it can be seen, every type of investigative case will be impacted by electronic information. In fact, most of the intelligence gathered by investigators in the coming years will derive from ESI. The CIA and State Department are concerned that terrorists might be using the communication features of online gaming such as Second Life to exchange messages. Astute fraud investigators recognize that even deleted voice mail messages may remain in backup tapes of company servers.

As more of the valuable intel from a case will come from electronic information in the future, investigators will need to develop skills to obtain and analyze this information.

 

The Tactical Draw Stroke is the Foundation for Winning a Gunfight

The tactical draw stroke is often underrated as a critical aspect of combat gunfighting. Shot placement, marksmanship, sight picture, and trigger control are more often the focus of the defensive handgun training and range practice. Further complicating the issue is that shooters normally practice on firing ranges where target accuracy is the primary focus, and the draw stoke or presentation is not practical, and sometimes not allowed.

In a real world event where the defensive or combat handgun is necessary, the entire process starts with the draw action, and the quality of the fight is defined by how well this foundation is established. From an effective grip to target acquisition to sight alignment, each subsequent step in the life or death scenario is made better or worse by the execution of the draw.

There are several different “official” draw methods trained, each with its own name and criteria. In fact they are all similar and often variations of each other. For the purpose of this description we’ll use a 4-point draw with the four points being: grip, pull, securing support hand, and punch-out. The reasoning and logic behind the connections between these steps and why they are critical to shooter success will be relevant to all draw methods.

If the draw stroke is the foundation to success is handgun defense, the grip is the cornerstone of the foundation. Let’s take a look at some of the details most frequently included in high level training of shooters and officers, and see how they translate to winning a gunfight.

  1. Firm initial grip or “grip it like you mean it” – Obviously this establishes the correct grip immediately without the need to adjust the handle as the weapon is brought to bear. It saves precious milliseconds but more importantly keeps the focus on the fight. Looking down or even being distracted to re-adjust grip could have disastrous results for the shooter / officer. Confidence is lost when second guessing the connection between shooter and firearm. No officer plans on having to re-grip the firearm after clearing the holster, and repeated practice will make sure this will never happen.
  2. Planting support hand on chest – This step may be the most critical. I recommend pounding the chest hard with an open off-hand at the same instant the fire-control hand grips the weapon. This creates an instant subconscious wake up call that the fight is on. Ideally the shooter would also instinctively rock slightly forward on the balls of the feet and even go eyes-wide like he or she is surprised. The reasoning most often given by instructors is that you want to get the support hand out of the potential muzzle sweep. True enough, and this has merit again in keeping the shooters confidence level high. (When you can remove any potential distractions such as shooting yourself that increases confidence). More importantly however, it locks the loose body parts together, and places the support hand closest to where it needs to be when the gun is brought up to that firing position. The hand plant is about mechanics, but it is also as much about getting into the combat mindset.

Professionals who rely on expert tactical shooting skills should practice the entire draw stroke as much, if not even more than they should practice live fire shooting. Once the gun is up and aligned with the target most of the hard work is done. Shooting from high-ready at the range does very little to guarantee survival in a fight. The opportunities for off range practice are endless. Spending 15 minutes at home on plant-and-grip may seem irrelevant or even awkward, and there is no immediate feedback of success such as seeing holes in a target downrange. However uncool it might appear, dry-drawing regularly might be the part of a training regimen tmost beneficial owards the day when a gunfight means life or death to you or others.

A shooter can use an actual firearm for off range training provided it is triple checked for live ammunition, and performed in a sterile area without ammo in the vicinity. A person serious about their expertise can obtain a plastic dummy gun, and use that for thousands of reps of dry-drawing each week. If a more realistic weight and balance is desired, a commercial training weapon such as the S.I.R.T. gun can be used. Some officers have even drilled out plastic guns and added lead for the correct weight.

Civilians who are seriously interested in personal defense or tactical expertise should do the same thing. Private sector ranges normally do not allow live fire drawing of weapons, and the shooting bay platform would get in the way even if it were allowed. If drawing is not allowed at the range, performing the punch-out step and sight acquisition from there adds to the training retention. Marksmanship from the high ready is not really an indication of results if a gunfight should take place. If defensive gunning is what you are training for, don’t just include static range shooting as all of the training.

Often overlooked in tactical procedures is movement. A step to the right or left has often meant the difference in survival for officers and shooters in a fight. Adding this step when dry-draw practice will ensure that it becomes part of the subconscious muscle memory which kicks in when the bad guy does something sketchy. Even when you are restricted to static shooting at a range, you can make sure to include a slight shuffle step when firing to make sure that element does not get lost in, well, the shuffle.

The value of regular practice of this single aspect of the draw stroke is immeasurable. It con be done almost anytime and anywhere. It creates consistency and precision in the action. It increases the officers control of the weapon and reduces takeaway probability. Practice will also reveal slight beneficial variations, such as angling the thumb to clear cover garments, trigger finger placement on the slide, and the feel of the hammer to ensure the weapon is in battery.

Shooters have likely heard all of the steps and associated reasoning in their department training. The valuable message here is the suggestion to practice extensively off-range. It is free, it requires no scheduling of training, and it might have more of a positive impact on officer skills than live fire. Repetition and practice isn’t as glamorous or exciting as live shooting. But the excitement of your family seeing you come home each day might be worth it.

David Pelligrinelli

 

  • NRA Law Enforcement Instructor
  • International Association of Law Enforcement Firearms Instructors
  • Florida “K” License Instructor # K 1100058