I have been following the Karen Read murder trial, and it has been quite an ordeal. The trial featured some of the worst expert testimony I have ever seen, a medical examiner who refused to call the death in question “a homicide,” poor investigative technique, and even a couple of “gotcha” moments.
Massachusetts State Police Trooper Mike Proctor was transferred out of his job as a detective investigator for the Norfolk County District Attorney’s Office State Police Detective’s Unit yesterday and entirely relieved of duty due to his handling of the investigation into Officer John O’Keefe’s death.1 The most memorable parts of Trooper Proctor’s testimony in the case centered on several series of text messages that he sent over several months to friends, family, and colleagues that were horrible and deeply misogynistic. And all of those texts were sent from his personal cell phone.
Beyond the sensational headlines of the Karen Read trial, the case offers a stark reminder of the fragility of privacy in the digital age. I want to consider some of the privacy lessons unearthed during the trial, specifically focusing on the use of text messages retrieved from the lead investigator’s phone.
Your Phone Backups Aren’t As Private As You Think
Forensically imaging a mobile phone extracts a treasure trove of data, including deleted messages.2 However, forensic examination is not the only thing we should be careful of. Our ability to back up data is vital as it enables us to transfer data (like apps and messages) from one device to another when we buy new phones or an old device is lost or damaged. However, it is also something that most people pay very little attention to because they believe those cloud-based backups are private. But, no matter how private you think the messages on your device are, relevant backups will almost always be discoverable and accessible via subpoena.
In the Read case, text messages, potentially revealing bias or misconduct on the part of lead investigator Proctor, were recovered from his iCloud backups.3 When he sent those text messages, he never imagined that they would be seen by anyone not in the text string, much less that he would have to read them aloud to a jury.
This highlights several practical implications for everyone, but particularly for professionals and those in positions of authority:
- Understand Legal Risks: Electronic communications, including messages you might consider private, can be used as evidence in legal proceedings.
- Think Before You Send: Always consider the potential future implications of your messages. An investigator sharing “news” (or gossip) with friends or family is almost always going to breach some duty (either a legal duty or a company policy imposing a civil duty of confidentiality). If you wouldn’t want a message read aloud in court, it might be best not to send it.
- Secure Your Backups: Ensure that your backups are encrypted and stored securely. While this won’t make them immune to subpoenas, it adds a layer of protection against unauthorized access.
- Regularly Review Your Data Practices: Understand what data you are backing up. Review your settings periodically and adjust them according to your privacy and security needs.
Don’t Blur The Personal and The Professional
Blending personal and professional communication became a significant issue in the Read case. Trooper Proctor used the same phone to message his wife and friends as he used to message his colleagues. By not using separate devices for his professional and private communications, he increased the likelihood that his personal messages would be exposed and scrutinized.
Opt-Out of BYOD (Bring Your Own Device): Employees should consider opting out of BYOD programs where possible. Using company-provided devices for work-related tasks can help maintain a clear separation between personal and professional data. This is particularly crucial for senior employees, as their likelihood of being involved in an investigation increases with their seniority, although it is never eliminated, even for junior staff.
Understand the Risks: Employees should know the potential legal and privacy risks associated with using personal devices for work. They should understand that personal messages and data stored on their personal devices could be scrutinized in the event of a legal investigation and may be subject to a preservation request or order.
Lessons Learned:
- Assume all digital communication can be recovered. Treat electronic messages with the same care you would use for written correspondence.
- Maintain clear boundaries between personal and professional communication. Consider using a work phone or a separate messaging app for work communication.
- Give thought to phone use. Prudent privacy-minded practices can ensure professionalism and avoid compromising situations.
The Karen Read case can be a cautionary tale about privacy, reminding us that our digital footprint can be bigger than we think. By being mindful of our online communication and observing clear privacy guidelines, we can minimize liability, embarrassment, and adverse professional consequences.
Footnotes
- Mike Pescaro & Kathy Curran, Michael Proctor Relieved of Duty, State Police Say after Karen Read Mistrial, NBC Boston (2024), https://web.archive.org/web/20241217152948/https://www.nbcboston.com/news/canton-karen-read-case/michael-proctor-relieved-of-duty-state-police-say-after-karen-read-mistrial/3416025/ (last visited Dec 25, 2024). ↩︎
- Simon Batt, How Do Police & Forensic Analysts Recover Deleted Data From Phones?, MUO (2019), https://www.makeuseof.com/tag/forensic-analysts-get-deleted-data-phone/ (last visited Dec 25, 2024). ↩︎
- Travis Andersen, Karen Read Trial: How Michael Proctor’s Testimony Unfolded Monday (2 p.m. Update), The Boston Globe, https://www.bostonglobe.com/2024/06/10/metro/karen-read-live/ (last visited Dec 25, 2024). ↩︎
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