NFL - Tom Brady - Ted Wells Report Rebuttal

Written By,
Robert Cherven, CFCE, EnCE
5/12/2015 @ 1540hrs, EST

As an investigative reporter and former digital forensic investigator who spent the last decade working with the Massachusetts State Police, Department of Justice, Federal Deposit Insurance Corporation and IBM, I can't help but notice when a case that hinges solely upon forensic evidence comes across my desk. This is especially true when the case involves the greatest American athlete of our time.

Tom Brady has been unfairly prosecuted by the NFL and the media because of the uninformed conclusions drawn by Mr. Wells in his "Deflategate Report".

The Merriam-Webster dictionary defines the word ‘conclusion’ as, “a judgment or decision reached by reasoning”.

What happens when a massively public execution is based upon a flawed and uninformed opinion drawn from a poorly written and vague conclusion?

In the world of CSI, there is no excuse for not following the fundamental rules of science.The first rules of conducting an investigation are:

Rule #1: It is not just the responsibility, but also the moral duty of the investigator to run a thorough, balanced and impartial investigation based on facts, and the facts alone.

Rule #2: Do not make inferences based on assumption, but rather draw conclusions based on scientific fact.

Rule #3: In the event that there is not sufficient evidence to draw a scientific conclusion, the investigator SHALL make note of it; and SHALL NOT make inferences based upon inconclusive results.

Rule #3a: Remember that you are not the judge, juror and executioner. You are a professional investigator, scientist and Messenger of Truth; Act accordingly.

Basically, what I'm trying to say is that the rule of drawing investigative conclusions is, "if it's not there, it's not there... Don't force it".

Mr. Wells has a history of authoring reports with bias and lack of scientific proof. It is the fundamental duty of the investigator to not draw conclusions based on inference, but rather deduce conclusions based on scientific and evidentiary fact.

It is my professional opinion, as a seasoned digital forensic investigator that is recognized by the Superior Court as an expert, with over fifteen years of training and experience, that Mr. Brady was accurate in refusing to turn over his smartphone and or other personal digital media devices.

The reasoning is as follows:

Mr. Wells publicly stated that, “(Brady) refused to admit us to review electronic data from his phone or other instruments”. It is my professional opinion, as a former Major Crimes investigator and Department of Justice – ICAC Task Force member, that Mr. Wells’ comments were inaccurate, unprofessional and uninformed. Mr. Wells’ statements alone show that he is lacking in knowledge as it pertains to digital forensics and digital evidence.

Seasoned investigators understand that all digital data can be recovered, even after it has been deleted. This recovered data will include personal financial records, personally identifiable information (PII – social security numbers), personal telephone contacts, private e-mails and personal photographs potentially including, but not limited, to Mr. Brady’s wife, children and family. It should be noted that this data is typically recovered through automation using various forensic devices. Currently the Cellebrite device is one of the more widely used and recognizable cellphone forensic extraction tools. The file systems used to store digital data on smartphones are examined differently than a computer file system. As a result, the forensic extraction devices used to examine cellphones currently only recover bulk quantities of deleted and undeleted data. It is only when this data is extracted and examined that investigators able to isolate inculpatory and exculpatory evidentiary data. Once this data is extracted, there is no putting it back for safekeeping. Once this information is uncovered, there are no protections or guarantees made to the family, the owner, or yet unknown persons associated with that device. With such a high-profile family such as the Brady’s, one does not need to explain the need for privacy and guaranteed protection from an overbearing forensic examination of a personal cellphone.

No guarantees or assurances were given to the Patriot’s organization or Mr. Brady that a qualified digital forensic expert would be preforming the examination. Furthermore, no assurances were given that the examination would be conducted in an accredited and secure digital forensic laboratory. At a minimum, if Mr. Brady was to consent to forfeiting his personal property without warrant, the devices must be handled at an accredited ASCLD (American Society of Crime Lab Directors) laboratory by a qualified digital forensic expert.

In the wake of the numerous recent major hacking attacks, which targeted Hollywood, Sony and JP Morgan Chase, it should be made abundantly clear why Mr. Brady chose not to allow an improper examination of his personal digital media devices. If Mr. Brady or other members of the NFL wish to cooperate with these types of investigations certain safeguards need to be enacted. Upon completion of the examination, the examiner shall in conjunction with the legal team, extrapolate the relevant requested data from the bulk report. The remaining irrelevant data should then only be destroyed using the Department of Defense data-wiping standard in the presence of the owner and legal team. Only then, with these types of assurances, can you guarantee unnecessary intrusion into Mr. Brady’s family and financial life.

In conclusion, it is my professional opinion that Mr. Wells has done a grave injustice to Mr. Brady, his family, the New England Patriots and the NFL.

ADDITION:

It should be noted that after this information was brought to the attention of the New England Patriots and the NFLPA, a new rebuttal was announced by Mr. Wells saying that the entirety of (Brady's) cellphone was not requested.