The Challenge of Digital Evidence

The Lawfare Podcasts, sponsored by the Brookings Institution, always seem to get below the surface and find more detail than is typically available in the electronic news media. The one above describes the problems digital service and media providers have responding to law enforcement requests (subpoenas) for digital evidence. I won't try to summarize the entire podcast but one topic caught my attention: the breadth of subpoenas.

Typically, a subpoena will include some specific evidence  needed in a criminal case (e.g., a list of cell phone calls a suspect has made, etc.) but then goes on to add "...in addition to all other relevant evidence." Of course this is the problem: who decides what is relevant and how much data can a company be compelled to provide.

Compare the digital search to a typical warrant. Law enforcement breaks into an office with a warrant. The warrant lists specific evidence e.g., documents and physical evidence. If law enforcement finds other relevant evidence of criminal activity, that evidence is also swept up in the search. If they are looking for emails, can they ask for a backup of the company's entire email system in case some other employee (not the target of an investigation) forwarded evidence while also adding incriminating comments? Challenges to the scope of a digital subpoena can tie up searches to the point that data begins to disappear.

The podcast discusses a proposal to have a central clearing house that can broker these kinds of problems. I would add one other suggestion. If you listen carefully to the podcast, the discussion proceeds at a very high level with few specifics about the typical kinds of searches law enforcement might execute. Basically, prosecutors and law enforcement do not want to miss something that might be relevant. This is the mentality of the system.

After 9/11 the Department of Homeland Security (DHS) explored ways to share more information between local law enforcement, the FBI and DHS. "Connecting the dots" became a priority. But it was impossible to get the Federal government to specify what they wanted. Local Law Enforcement did not feel comfortable sharing it's raw data which included names of citizens never charged with any crime e.g., witnesses. After much argument and miscommunication, DHS admitted they "wanted everything" and really just wanted to do Google searches on every bit of information they could store centrally. This is the mentality of the system.

My suggestion is for the central clearing house to work on specifying routine searches e.g., cell phone call records, and move on from there to digital financial records, personnel records, customer data, etc. Digital service and media providers can then work on the programming necessary to meet these requests in a routine way. This might be easier than it sounds because enterprise software providers e.g., Oracle, Microsoft, IBM, etc. can build these searches into commercial systems that are used by most all large companies.

At some point in the process of building search requirements we will get to unreasonable and ill-defined requests basically for everything. I cannot predict what will happen at this point but judges might have to decide that some requests cannot be met. The central clearing house could be an unbiased third party assuring the judicial system that a request has gone too far.

The Local Government Growth Treadmill

I can't imagine someone standing up at a Town or County Board meeting in the US and saying "I think we should stop growing, stop developing!" But, I have actually seen it. Typically, the questioner gets a polite but firm tongue lashing from someone who is good at that on the Council. Representatives who are in the pocket of some developer seldom stand up and say or admit it. So, it's easy to blame rampant corruption or political personalities or Right Wing ideology. Maybe? But I want to argue that it's the System!

The graphic above (click to enlarge) is a simplified model of the more complex path diagram floating around in my head. It really isn't substantially different from Jay Wright Forrester's (1969) Urban Dynamics model (which actually has some academic and real-world support here, here, and here). Follow the arrows:

• Local population growth leads to an increase in consumer spending, construction spending and the tax base.
• Local economic growth leads to more employment which, in turn, leads to an influx of job seekers and increase population growth

This is a very strong positive feedback loop. Break out "Local Economic Growth" and you find banks, realtors, developers, builders, retail businesses, and local government--a coalition of powerful interests.

All systems have negative feedback loops that try to control overdevelopment, but the question is "how strong are the negative loops":

• Economic growth and local population growth have environmental impacts: (1) Depletion and contamination of local water supplies, (2) Loss of areas to handle water runoff, (3) Increased pollution, (4) Loss of farmland, etc. etc.
• Environmental degradation decreases the Quality of Life in a community, making it less attractive for in-migration.

Except for a small number of very concerned communities, this negative feedback loop is slow acting with long time delays. Typically, when a community finds out it has degraded the environment, it's too late (Dallas, TX is a good example here).

The interesting thing about feedback loops is that they can be reversed by external shocks.

• A large, negative shock to Local Economic Growth from the National Economy can reverse the entire process as happened during the Subprime Mortgage Crisis in the US.
• Tinkering with the housing market at the national level negatively impacted the banking system, the construction industry, and the entire economy. As incomes fell, the tax base fell and local governments found it difficult to provide even their base functions. Developers abandoned entire tracks creating a new kind of ghost town in States such as Arizona and Nevada.

Cities and Counties could not wait to get back on the positive feedback cycle and some communities were surprised by how rapidly large tracks of land were zoned and platted for new subdivisions well ahead of any improvement in the local economy (here).

EXERCISES

1. How was your local community affected by the Subprime Mortgage Crisis. Check your on-line newspaper archive. How were banks, retail business, construction and government finance affected? Are you still feeling any of the effects today?
2. Go to a meeting of the local Planning Commission, get a flavor for how new developments are approved. If there is a Town or City Master Plan, get a copy and read it. What things surprised you about how the Planning Commission operated?
3. Modify and expand the path diagram above to fit your local community. How good is the theory?