Preserving Digital Evidence: Considerations for Anti-Violence Workers

Anti-violence workers are a valued source of support for women and gender-diverse people experiencing technology-facilitated gender-based violence (TFGBV). An anti-violence worker can follow the steps below to assist in strategizing a technology safety plan for a woman facing technology-facilitated gender-based violence.

When meeting with a woman experiencing violence, it is important to discuss:

• How technology played a role in the abusive relationship, including all communication methods, devices, and programs used by the woman in her daily life, particularly those used to communicate with the perpetrator
• If and how perpetrators have access to technological devices or accounts (either physical or with digital access)
• Whether there was any technology-related violence in their relationship, and what the abusive behaviour was (e.g. threats, harassment, monitoring, sharing intimate images)
• Whether the woman suspects that the perpetrator may be accessing her devices, digital accounts, or location secretly or without consent
• Whether there is any digital or electronic information that the perpetrator has access to that may pose a safety or communication risk
• If there is any evidence of the abuse or violence that is at risk of being lost or deleted
• The possible locations where the digital evidence of the technology-facilitated violence can be found

For more information on safety planning with victims of TFGBV, see BCSTH’s Assessing for Technology- Facilitated Violence and Privacy Concerns for Anti-Violence Workers.

Once the technological devices and accounts that have been or are being misused are identified, you can begin the process of locating the digital evidence. It can be useful to make a list of the evidence that may still need to be collected and what has already been collected.

It is important to determine where the digital evidence is currently stored (e.g. in a text message on the woman’s phone, in an email on her email account, on a social media page, or on her iCloud account) and to consider how to protect or freeze the data before actually preserving the digital evidence. This could include blocking the perpetrator’s access to accounts. To block unwanted access to their personal accounts, women can change the passwords on all relevant platforms and devices. It is important to be aware that if an account becomes blocked, this can lead to the automatic deletion or inability to access digital evidence.

A safety assessment should be done before making any changes to an account’s privacy settings, password, follower/friend list, or saved data. Changes such as these may alert the perpetrator that the woman is collecting evidence or seeking help. This can lead to an escalation in violence and/or the deletion of evidence by the perpetrator. Making a safety and evidence preservation plan, before taking any action, is important for the safety of the woman and the strength of any future legal case she may choose to pursue.

Cloud-Based Accounts

Changing passwords and device access is particularly important for cloud-based accounts such as iCloud or Google Drive. These accounts are commonly connected to many devices (e.g. phones operating on the same system, tablets, laptops, desktop computers, and fitness accessories) and will automatically sync information and back up data across several devices. Perpetrators may have access to cloud-based accounts by either knowing the password or having access to a device that has been set up with the cloud account information on it so that a password is not required for access. Women should identify what cloud-based accounts are linked to their device(s) and, if possible, which accounts perpetrators have access to. This could include devices that aren’t commonly thought of, such as the perpetrator’s smartwatch, Bluetooth-connected speaker, or smart car. Remote access to cloud-based accounts may allow perpetrators to see what evidence is being preserved. Having remote access to cloud accounts also gives perpetrators access to destroy any evidence that is stored there.

Stalkerware

Stalkerware is a broad category of malware that allows a perpetrator to monitor a woman’s phone activity and/or track the location of her phone. For more information about stalkerware, see WSC’s information on Mobile Spyware. If there are concerns that a device is infected with stalkerware, it is important to create a plan for how to change passwords without alerting the perpetrator, who may have access to the device’s activities (e.g. not creating a new password on the device that is being monitored, as the perpetrator may have been monitoring the change and will then know the new password as well). Once a plan to avoid detection is created, women and anti-violence workers can create strong passwords that are unlikely to be breached.

Automatic Deletion

Digital evidence can also be lost through normal device and account functioning. To increase the speed and usability of devices, many companies set up devices and accounts to automatically delete information. Devices or accounts should be reviewed to determine if they are set up to automatically delete messages after a certain amount of time. If the device is programmed this way, account settings can be changed to stop automatic deletion and allow for digital evidence to remain stored on the device.

Backup

It is important to have a secondary backup of all digital evidence. Digital evidence can be compromised or made unavailable if a device is lost, stolen, or broken. A secondary backup can be another device or account, printed physical copies of the evidence, or both. As accidents happen, plan early for how to back up evidence.

Many women being supported by anti-violence workers ask them to take photos and make recordings of TFGBV as a means to preserve evidence. They may also be asked to store copies of digital evidence securely. However, by personally assisting in digital evidence preservation, it may open up the risk that an anti-violence worker or their client’s file will be subpoenaed by the court to explain how and why they collected the evidence. This could potentially lead to them being questioned, by opposing counsel or the Crown, about their work supporting women and their families. Additionally, if the photographic or digital evidence is stored in women’s case files and is commingled with other records, such as notes of her meetings with anti-violence workers, those records may open the woman’s entire support file to discovery as well. In this situation, perpetrators, along with opposing counsel or Crown, may subpoena the organization’s records to gain access to copies of the evidence.

Anti-violence workers can work with women to discuss the possible consequences of having a third party, such as themselves, preserve evidence. An integral part of technology safety planning is identifying which methods of digital evidence preservation are in the best interests of the woman in the long run. In some circumstances, it may be appropriate or necessary for anti-violence workers to collect or store evidence, but it is important to discuss the risks with the client before doing so. Clients should be encouraged to collect evidence themselves, or have a family member or friend collect that data for them, whenever possible.

Many anti-violence programs have a records management policy of only recording the minimum amount of information necessary to provide the services needed for the time required. Check with your organization’s policies, and if there is no policy, advise your organization that it should consider writing one.

It is common for women to collect and preserve evidence themselves by saving emails, recording messages, taking screenshots, or printing evidence. As part of technology safety planning, anti-violence workers can provide women with resources that explain what information is important to retain, and how to document experiences of technology-facilitated violence as effectively as possible. Guidance can be provided as to the necessary steps to preserve the evidence in a format that will be considered authentic and complete. Doing so will minimize opportunities that might negatively impact the collection process.

Encouraging women to back up their evidence in multiple places is also suggested, as long as this can be done safely.

Documenting digital evidence in chronological order is best. Women’s Shelters Canada has created a Technology-Facilitated Violence Log that you can use to help women keep a record of their experiences of technology-facilitated violence.

Technology is always evolving and it can be challenging for anti-violence workers to learn about and stay up to date on technology and digital evidence preservation. Many anti-violence workers may be unfamiliar with what technologies exist, how the technology can be used to perpetuate violence, and how to collect digital evidence. It may be useful to read the additional documents in this Toolkit to gain information about the technologies and techniques that can help your clients.

Women may need additional legal information or advice about how to preserve digital evidence and relevant legal remedies. To find organizations in your province or territory that provide legal information, legal aid, or legal assistance see: Legal and Victim Service Supports and Resources.

For additional resources for you and the people you are assisting, see Technology Safety and Victim/Survivor Resources.

Technology-Facilitated Gender-Based Violence (TFGBV) is part of a continuum of violence that can be both online and in-person. If you or someone you know is experiencing TFGBV, you are not alone. You can use sheltersafe.ca to find a shelter/transition house near you or call/text the Kids Help Phone to discuss options and create a safety plan. You don’t need to stay in a shelter to access free, confidential services and support.

We gratefully acknowledge Moira Aikenhead for providing expertise to update this toolkit.

Adapted with permission from BCSTH’s Technology Safety project, based on their resource Preserving Digital Evidence: Considerations for Anti-Violence Workers Supporting Women.