Emoticons in Investigations

Over the past year or so I have seen an increasing flood of articles and interviews discussing the subject of Emoticons in the investigations and eDiscovery space. All manner of software tools can deal with the requirement to search for simple emoticons/emojis in an investigative context. That's cool 😎

So here's my controversial eDiscovery viewpoint of the day.

What on earth did we do with ASCII Art in days gone by? :-)

        ROFL:ROFL:LOL:ROFL:ROFL
         _________||_________
 L      /                 [ O\
LOL=====                  |_|_\
 L     B|O M B                 )
      F |______,-------¬_____/
     T //    }-OMGROCKET))
    W // _______||_||_________/_/

And to what extent has sentiment and understanding of intention and interpretation formed part of the formal training of the lawyers and investigators reviewing those communications?

From a purely geeky perspective, it's a very interesting topic. There are varying 'standards' for emoticons across a range of different platforms and if you want to find every instance of an Eggplant emojii (U+1F346) in a #metoo investigation, then Unicode standards are a good place to start.

Many mobile imaging tools now have the ability to display and search for standard emojiis and varying image types used in messaging conversations. But for me there are some associated challenges we should be much more cognisant of before we race ahead to define a list of emoticons to find the smoking gun automatically 🚬 🔫 

In the rush to make ediscovery tools emoji friendly, I don’t feel in my experience that basic review and investigation gets plain text communications as right as it should yet. Acronyms and turns of phrase, intent, interpretation... how well does the reviewer really understand communication between two parties.. even without emojis?

Meaning

As a for instance, take a look at this emojii and it's Dictionary.com definition

😏 Smirking Face. A yellow face with a sly, smug, mischievous, or suggestive facial expression. It features a half-smile, raised eyebrows, and eyes looking to the side. Often used to convey flirtation or sexual innuendo.

Now I have to say I am suddenly alarmed about my previous usage of that emoticon with my mother. I meant simply to smirk at something sarcastic I'd said.

Regardless though, this issue exists with simple words on a page. If I write "The EDRM needs to evolve", depending on your frame of reference, you might think I'm talking about "Enterprise Digital Rights Management". Which I am. Honestly.

The noise created by some around the search for emoticons as the next big thing would have you think that ediscovery providers along with the reviewers and investigators have already mastered the interpretation of simple sentences and acronyms. However IMNSHO, we really haven't.

Formatting issues

eDiscovery platforms are beginning to be able to format an are able to display mobile and other forms of messaging in the way they would appear based on the medium used.

A message sent from an iPhone with an Animoji (an animated emjoi that can be customized with movement and contain associated sound) may not even display on another older mobile phone at all or may even lose it's animation and carry just an image and the sound separately. That could lead to confusion in intent and meaning.

But let's ponder a world without multi-media and emoticons. I send an IMessage with formatting to a recipient with an old brick Nokia phone. IMHO 🧐 (see, not everyone knows what that means) it is important that some thought is given to both in the way a communication is sent (what the sender creates) and the way it is received (what the recipient actually sees). As far as I know, this is not a consideration given in most advances in 'emoticon' support in eDiscovery, let alone simple communication forms.

Regional/cultural differences

ʕ⁎̯͡⁎ʔ༄

This Kaoemoji, when I think about it could mean a multitude of different things. For instance, my interpretation is "look how clever I am using the Japanese Kana keyboard on my iPhone".

In common with the ROFLCOPTER, it's really just a text based pattern. I can almost guarantee that your eDiscovery indexes are not set up to search for them (unless you have worked on a specific Japanese emoji requirement before). But then I personally use the "magic squirrel" in my WhatsApp messages to denote "I'll be there for you" as if I'm flying in to help someone. It probably doesn't mean that at all.

As a small but pertinent example, Emojii use in South Africa shows some significant differences in interpretation to other western cultures. Therefore a conversation between two people from different regional or cultural backgrounds may carry different intent and received understanding.

But you guessed it... without emoticons.. we still have the same nuances. The sentence "I'll see you on the other side", could mean literally the other side of the room, or perhaps something more existential.

So what's my point?

The ability to search for and display an emoji or an image in the original formatting of a message are for certain a necessary development in the evolution of eDiscovery and investigative technology. Of course, combined with sentiment analysis, showing the interpreted emotion behind the communication, could provide some additional colour and context to the communication being reviewed.

Both emoji discovery and sentiment analysis are still rudimentary at best and any reviewer or investigator should remember the basics of the interpretation of communication... the possible intentions of the sender and the potential of differences in the interpretation of the recipient.

There are examples of court cases where Emoji's have played a role of some sort, but I guess my important point is that communication is highly emotional and therefore nuanced thing. In the investigation of written communication there are three parties involved who's interpretation may differ. The sender, the recipient and the investigator.

The content of a message is not of primary importance, it's the intent and interpretation that matter. There are all sorts of content challenges in ediscovery and there is nothing significant or special about emoticons versus text (with or without acronyms) and other media.

Before being concerned about your ability to search for emoticons, please ensure that your reviewers or investigators are trained in the basic nuances involved with the interpretation of ANY communication. This interview is a nice starting point.

🍆 

Disclaimer: The way you interpret my words and emoticons may not have been the way in which I intended them to be understood.

Anyway.. depending on my own and your own grasp of the English language, we might well both be wrong in our interpretations..

This is all my own opinion and experience and isn't necessarily reflective of the views of my current or previous employers. It is not an endorsement or advertisement of any product and nor is it intended to reflect or portray anyone in a negative light. It should not be construed as any kind of legal advice. I am not affiliated with any product or company mentioned, aside from my own employer. It may have been written by a bot.

About Martin: Over the past 17 years I've worked with Law firms, in.house counsel and compliance and investigations professionals globally, to create and implement systems and processes to support investigations.