Juror Interpretations of Metadata and Content Information: Implications for the Going Dark Debate

29 Pages Posted: 8 Jul 2021 Last revised: 16 Sep 2021

Date Written: June 21, 2021

Abstract

The increasing prevalence of encryption in consumer devices and services has led to a fierce debate over whether the loss of potential evidence due to encryption will be offset by the increase in evidence available from electronic metadata. One major question raised by this debate is how jurors will interpret and value metadata as opposed to content information. Though there are plausible arguments in favor of the persuasive power of each type of evidence, to date no empirical study has examined how ordinary people, potential jurors, view each of these sorts of evidence.

We address this issue through a series of survey experiments that present respondents with descriptions of hypothetical criminal trials. Respondents were randomly assigned to case descriptions where the key piece of evidence was either metadata (for example, cell phone location records) or content information (for example, text messages conveying the defendant’s location or state of mind). Data from three studies shows that the relative power of content and metadata information is highly contextual. Content information and metadata can be equally useful when they convey information that is logically equivalent; there is no bias in favor of either. Yet content information conveys additional meaning in circumstances where the defendant’s state of mind is critical. And metadata can more convincingly establish a pattern of behavior. In sum, this suggests that the rise of encryption will have a highly heterogeneous effect on criminal cases, with the direction of the effect depending on the exact nature of the facts that the prosecution must prove.

Keywords: juror decision-making, encryption policy, going dark, surveillance

JEL Classification: K14, K49

Suggested Citation

Boustead, Anne and Kugler, Matthew B., Juror Interpretations of Metadata and Content Information: Implications for the Going Dark Debate (June 21, 2021). Northwestern Law & Econ Research Paper No. 21-07, Available at SSRN: https://ssrn.com/abstract=3871382 or http://dx.doi.org/10.2139/ssrn.3871382

Anne Boustead (Contact Author)

University of Arizona - School of Government and Public Policy ( email )

315 Social Science Building
Tucson, AZ 85721
United States

Matthew B. Kugler

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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