In search for child pornography, an ICE agent obtained a search warrant for "any computer, computer system and related peripherals; tapes, cassettes." When the search warrant was executed, he found that the suspect used WebTV instead of a computer to access the Internet. The agent confiscated VHS tapes, believing that they would contain metadata. At trial, the agent "admit[ted] it never occurred to him that VHS tapes were analog tapes and that they would not contain metadata." The court held that taking the tapes did not violate the defendant's rights, for various reasons including good faith.
The court went on with its discussion, essentially calling on those presenting cybercrime trainings to do a better job. "Other than trial lawyers, forensic specialists, and IT professionals, few people could define what metadata is and where it could be found. While [the agent] took classes related to child pornography investigations that discussed metadata, it is highly unlikely that any of those classes discussed the nature of VHS tapes and how the recording system works."
Metadata is certainly important evidence, but it seems that it must be explained better. Investigators need to know where it can and cannot be found. It's a tough concept to understand, and trainers must do a better job of demystifying it.
The case is United States v. Hager, 2011 WL 3862072 (D.N.D. 2011).
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