Forensics & Retention Policy
Preservation, Authentication and Evidence of Cell Phone Records & Unified Messages
Voicemails can be legally significant to a contract, a divorce, a harassment case or a crime investigation. But keeping a record of voicemail or other audio can sometimes be challenging. Businesses do not commonly retain voicemail as part of their usual record retention policies. Note that although Rule 206 of SEC Regulation S-X (a leading authority in the world of business record retention) requires CPAs to keep extensive records, including e-mail, in the course of their professional work, it excludes voicemails from the retention requirement.
Yet as "unified communications" (or "unified messaging") becomes more popular, the logic for not retaining voice mail will fade away. Under unified communications, text, audio, video and other electronic messages are all delivered to a common inbox for the user and processed equally. Under unified communications, message data is message data, regardless of format. And, formats are interchangable. A voice message can be converted to text and vice versa. . . . A voicemail can be very valuable evidence, recording (often with a timestamp) a person’s intent, knowledge or state of mind.
Capture and Preserve Audio
I once received a voicemail I wanted to preserve for legal purposes. My client had hired a man to write software, and the work proceeded before a formal, written contract was in place to confirm ownership of the software. I was working to get such a contract signed, but the man was being uncooperative. One day he left me a voicemail, confirming we should have a contract documenting that the software belonged to my client. This voicemail was precious because it constituted evidence, in the man's very voice, that my client owned the software. Given the man's behavior, I was unsure he'd ever actually sign a paper contract.
So I wanted to preserve the voicemail as best I could. The voicemail was on my cell phone voicemail service, which normally deletes voicemails in 15 days and provides no method to forward voicemail to permanent storage or to something like my e-mail address.
What was I to do? One option was to file a lawsuit and seek an immediate subpoena to force my cell provider to preserve a forensically-high-quality record of the voicemail. But that option would have been excessively expensive and massive overkill. And there would have been no guarantee that the service provider would have in fact preserved the evidence in time.
So I followed a second option. I installed a microphone on my PC. Then I played the voicemail over the loud speaker on my cell phone and recorded the sound with the microphone. The result was a .wav audio file that was intelligible, though of lower quality than if a forensics expert had preserved original data directly from the service provider's information system. I also wrote a memo describing what I had done, when and how. The memo would help me testify about the evidence I had preserved if there were ever a lawsuit or investigation in the future.
Webcam Evidence Capture and Affidavit
That was 2005. Today I would use a procedure like that described in my video on the capture and preservation of text messages.
--Benjamin Wright
[Again, nothing I say on this blog is legal or other professional advice. It is just general public discussion, to which I invite comments so I and my readers can learn. If you need expert help, you should not rely on this blog. You should go get help.]
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