Close up of young businessman searching or spying on the mobile phone
Close up of young businessman searching or spying on the mobile phone (Nastco)

Due process is a fundamental component of the American system of law and justice. It has substantive and procedural components, and, at its core, is the thread of fundamental fairness that allows our judicial system to stand as an example for the world.

The intellectual foundation of due process can be tracked back to our nation’s founding and the founders’ quest to eliminate the risk of tyrannical governmental intrusions upon liberty. For example, in “Federalist Papers No. 84,” Alexander Hamilton, invoking the words of the 18th century British legal scholar Sir William Blackstone, wrote of due process:

“To bereave a man of life … or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, less striking, and therefore a more dangerous engine of arbitrary government.”

While the substantive component of due process has been used throughout American history to define the limits of government regulation in ways that have caused constitutional scholars to debate whether such application has been applied in a purely subjective manner, or arbitrarily without textual support in the U.S. Constitution through the penumbral emanations of fundamental rights, procedural due process has proven to be a far more straightforward and less controversial legal concept than its substantive counterpart.

Procedural due process, it has been held by the U.S. Supreme Court ( Mullane v. Cent. Hanover Bank & Trust Co. ), minimally ensures, “notice and [an] opportunity for [a] hearing appropriate to the nature of the case” before the compulsory “deprivation of life, liberty, or property.” Procedural due process rights attach to varying degrees and at varying intensities at each of the various stages of criminal and quasi criminal proceedings.

More than 30 years before the widespread proliferation of technologies like the iPhone came to dominate our lives, in Morrissey v. Brewer , the U.S. Supreme Court held that the procedural due process protections secured by the U.S. Constitution entitle defendants, among other things, access to the evidence to be used against them, even in a proceeding ancillary to a criminal prosecution like the one pertaining to the revocation of parole that was at issue there.

Intuitively, the rule of law set forth in Morrissey does not seem like a groundbreaking concept—the defendant gets to know what evidence the government is going to use against him or her before some aspect of their liberty is impacted. Practically, that is what affords a defendant the ability to mount a defense. Yet, in the modern technological age, there can be more to that evidence than initially meets the eye.

For some perspective, in 1972, the year when Morrissey was decided, Atari released Pong, a primitive precursor to modern-day videogames that resembled the old MS-DOS prompt screen. Hardly entertaining by today’s standards, at that time, it was unfathomable that Americans would come to feel more comfortable communicating by text message and email than in person or by phone, let alone the fact that each of us would carry a GPS-enabled supercomputer capable of fitting in the palm of our hand with us each day, wherever in the world we might happen to be.

Despite the relative simplicity of Morrissey and its progeny, the seemingly simple constitutional requirement that defendants be provided the evidence to be used against them can wreak havoc in settings involving electronic evidence. This is largely a product of the fact that electronic evidence has a hidden, powerful component that is baked into the evidence, but is widely misunderstood: metadata.

A hypothetical fact pattern demonstrates the predicament. Imagine the allegations of a basic, run of the mill fraud scheme. Risking oversimplification, in such a scenario, an actor makes false representations in order to secure something to which they are not entitled by inducing reliance upon those representations by another. The government needs to prove: (1) that the misrepresentations were made; (2) that the misrepresentations were intended to and did, in fact, evoke reliance; and (3) at least most of the time, that the victim of the scheme parted with a thing of value.

While this is a very academic set of facts, envision that the government’s proofs rest upon a series of text messages sent by the defendant to the alleged victim. As part of the government’s case, it suggests that the misrepresentations underlying the fraud were made on Jan. 1, 2016, because the date indicated on body of the text message communications central to the government’s case says so.

In our hypothetical scenario, the government also claims that, as a result of receiving the Jan. 1, 2016, text messages, the alleged victim of the fraud scheme transferred money to the defendant on Jan. 10, 2016. This is the standard cause and effect relationship associated with basic fraud. The timeline is key—one event leads to another.

In this hypothetical set of facts, imagine that the government produces an unsophisticated printout of the text messages in question to the defense as part of the pretrial discovery process. Later, at trial, the government is able to lay the necessary foundation for the printout through investigators, and the court admits them into evidence. All of this is done without access by the defense to the original evidence in its native form, thus precluding the defense from in any way challenging that which is reflected on the face of the text message printouts.

Without access to the original electronic versions of the text messages—a three-dimensional composite of relevant information, including metadata—there is no way to determine if what was reflected on the printouts produced to the defense in discovery by the government is actually accurate. Metadata, classifiable according to most computer scientists as either descriptive, structural, or administrative, unlocks the truth behind what appears on the surface of the evidence. Digital information is not one-dimensional in the same way as its paper counterparts. Thus, upon examination of the metadata associated with the hypothetical text message communications, it could be determined, among other things, whether the critical text messages at issue were actually sent on Feb. 1, 2016, for instance.

The impact of such a discovery cannot be overstated. Specifically, it would prove that the “effect side” of the government’s fraud equation happened some 20 days earlier than the supposed “cause side” of the equation. The defense value of such an irreconcilable inconsistency is immense. Without the metadata associated with the text messages in question, the discovery printouts provided by the government in this hypothetical are virtually useless, and because electronically stored information is so easily modified and corrupted, this scenario is not outside the realm of routine possibility.

Metadata is what makes electronically stored evidence three dimensional. Metadata is also what makes electronically stored information so powerful. Yet, a survey of case law from around the United States demonstrates that the procedural due process implications of a governmental failure produce metadata in the course of discovery has seldom been addressed in a precedential way outside of mere dicta. In Robinson v. City of Arkansas City , District of Kansas held that procedural due process was violated where city actively modified and misrepresented the properties of documents material to the case. But in U. S. v. Heiser , a child pornography prosecution, the Third Circuit Court of Appeals concluded that the defendant had “the necessary discovery in his possession in order to prepare a defense[,]” notwithstanding the fact that the version of a seized computer reproduced to the defendant in discovery was stripped of metadata.

Despite the dearth of authority on the constitutional significance of metadata, it would appear rudimentary that a defendant in a criminal or quasi criminal proceeding must be furnished with the metadata associated with electronically stored evidence to be used against him or her because that metadata is such a fundamental component of the evidence that it must be considered part and parcel to the evidence to be used against the defendant , within the meaning of Morrissey . Without it, quite simply, the defendant is left to defend himself or herself shackled at the hands and feet. Had the type of digital evidence that exists today existed at the time of our nation’s founding, that outcome just might constitute the tyranny that our founders dedicated their lives to resisting.

Due process is a fundamental component of the American system of law and justice. It has substantive and procedural components, and, at its core, is the thread of fundamental fairness that allows our judicial system to stand as an example for the world.

The intellectual foundation of due process can be tracked back to our nation’s founding and the founders’ quest to eliminate the risk of tyrannical governmental intrusions upon liberty. For example, in “Federalist Papers No. 84,” Alexander Hamilton, invoking the words of the 18th century British legal scholar Sir William Blackstone, wrote of due process:

“To bereave a man of life … or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, less striking, and therefore a more dangerous engine of arbitrary government.”

While the substantive component of due process has been used throughout American history to define the limits of government regulation in ways that have caused constitutional scholars to debate whether such application has been applied in a purely subjective manner, or arbitrarily without textual support in the U.S. Constitution through the penumbral emanations of fundamental rights, procedural due process has proven to be a far more straightforward and less controversial legal concept than its substantive counterpart.

Procedural due process, it has been held by the U.S. Supreme Court ( Mullane v. Cent. Hanover Bank & Trust Co. ), minimally ensures, “notice and [an] opportunity for [a] hearing appropriate to the nature of the case” before the compulsory “deprivation of life, liberty, or property.” Procedural due process rights attach to varying degrees and at varying intensities at each of the various stages of criminal and quasi criminal proceedings.

More than 30 years before the widespread proliferation of technologies like the iPhone came to dominate our lives, in Morrissey v. Brewer , the U.S. Supreme Court held that the procedural due process protections secured by the U.S. Constitution entitle defendants, among other things, access to the evidence to be used against them, even in a proceeding ancillary to a criminal prosecution like the one pertaining to the revocation of parole that was at issue there.

Intuitively, the rule of law set forth in Morrissey does not seem like a groundbreaking concept—the defendant gets to know what evidence the government is going to use against him or her before some aspect of their liberty is impacted. Practically, that is what affords a defendant the ability to mount a defense. Yet, in the modern technological age, there can be more to that evidence than initially meets the eye.

For some perspective, in 1972, the year when Morrissey was decided, Atari released Pong, a primitive precursor to modern-day videogames that resembled the old MS-DOS prompt screen. Hardly entertaining by today’s standards, at that time, it was unfathomable that Americans would come to feel more comfortable communicating by text message and email than in person or by phone, let alone the fact that each of us would carry a GPS-enabled supercomputer capable of fitting in the palm of our hand with us each day, wherever in the world we might happen to be.

Despite the relative simplicity of Morrissey and its progeny, the seemingly simple constitutional requirement that defendants be provided the evidence to be used against them can wreak havoc in settings involving electronic evidence. This is largely a product of the fact that electronic evidence has a hidden, powerful component that is baked into the evidence, but is widely misunderstood: metadata.

A hypothetical fact pattern demonstrates the predicament. Imagine the allegations of a basic, run of the mill fraud scheme. Risking oversimplification, in such a scenario, an actor makes false representations in order to secure something to which they are not entitled by inducing reliance upon those representations by another. The government needs to prove: (1) that the misrepresentations were made; (2) that the misrepresentations were intended to and did, in fact, evoke reliance; and (3) at least most of the time, that the victim of the scheme parted with a thing of value.

While this is a very academic set of facts, envision that the government’s proofs rest upon a series of text messages sent by the defendant to the alleged victim. As part of the government’s case, it suggests that the misrepresentations underlying the fraud were made on Jan. 1, 2016, because the date indicated on body of the text message communications central to the government’s case says so.

In our hypothetical scenario, the government also claims that, as a result of receiving the Jan. 1, 2016, text messages, the alleged victim of the fraud scheme transferred money to the defendant on Jan. 10, 2016. This is the standard cause and effect relationship associated with basic fraud. The timeline is key—one event leads to another.

In this hypothetical set of facts, imagine that the government produces an unsophisticated printout of the text messages in question to the defense as part of the pretrial discovery process. Later, at trial, the government is able to lay the necessary foundation for the printout through investigators, and the court admits them into evidence. All of this is done without access by the defense to the original evidence in its native form, thus precluding the defense from in any way challenging that which is reflected on the face of the text message printouts.

Without access to the original electronic versions of the text messages—a three-dimensional composite of relevant information, including metadata—there is no way to determine if what was reflected on the printouts produced to the defense in discovery by the government is actually accurate. Metadata, classifiable according to most computer scientists as either descriptive, structural, or administrative, unlocks the truth behind what appears on the surface of the evidence. Digital information is not one-dimensional in the same way as its paper counterparts. Thus, upon examination of the metadata associated with the hypothetical text message communications, it could be determined, among other things, whether the critical text messages at issue were actually sent on Feb. 1, 2016, for instance.

The impact of such a discovery cannot be overstated. Specifically, it would prove that the “effect side” of the government’s fraud equation happened some 20 days earlier than the supposed “cause side” of the equation. The defense value of such an irreconcilable inconsistency is immense. Without the metadata associated with the text messages in question, the discovery printouts provided by the government in this hypothetical are virtually useless, and because electronically stored information is so easily modified and corrupted, this scenario is not outside the realm of routine possibility.

Metadata is what makes electronically stored evidence three dimensional. Metadata is also what makes electronically stored information so powerful. Yet, a survey of case law from around the United States demonstrates that the procedural due process implications of a governmental failure produce metadata in the course of discovery has seldom been addressed in a precedential way outside of mere dicta. In Robinson v. City of Arkansas City , District of Kansas held that procedural due process was violated where city actively modified and misrepresented the properties of documents material to the case. But in U. S. v. Heiser , a child pornography prosecution, the Third Circuit Court of Appeals concluded that the defendant had “the necessary discovery in his possession in order to prepare a defense[,]” notwithstanding the fact that the version of a seized computer reproduced to the defendant in discovery was stripped of metadata.

Despite the dearth of authority on the constitutional significance of metadata, it would appear rudimentary that a defendant in a criminal or quasi criminal proceeding must be furnished with the metadata associated with electronically stored evidence to be used against him or her because that metadata is such a fundamental component of the evidence that it must be considered part and parcel to the evidence to be used against the defendant , within the meaning of Morrissey . Without it, quite simply, the defendant is left to defend himself or herself shackled at the hands and feet. Had the type of digital evidence that exists today existed at the time of our nation’s founding, that outcome just might constitute the tyranny that our founders dedicated their lives to resisting.