Juror interpretations of metadata and content information: implications for the going dark debate

Abstract

The rise of consumer encryption 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 hypothetical criminal trials, randomly assigning them to descriptions featuring either metadata or content information. These studies show that the relative power of content and metadata information is highly contextual. Content information and metadata can be equally useful when conveying logically equivalent information. However, content information may be more persuasive where the defendant's state of mind is critical, while metadata can more convincingly establish a pattern of behavior. This suggests that the rise of encryption will have a heterogeneous effect on criminal cases, with the direction of the effect depending on the facts that the prosecution must prove. © 2023 The Author(s). Published by Oxford University Press.