Emoji: Their Meaning and Role in Discovery

The Bencher—September/October 2019

By Kevin F. Brady, Esquire

Emoji are popular and entertaining forms of personal communication, and, as a result, they have begun to show up in litigation as evidence. Therefore, it is important to understand what emoji are and what they mean. The first part is easy, but the second part can be challenging.

An emoji is a small image or pictograph . The meanings of many emoji are more or less obvious, although some are still open to interpretation. For example,  could mean please, thank you, prayer, high five, or namaste. However, the meanings of many others are not at all obvious. For example,  (“tired face”) is interpreted as complaining, anguished, or distraught, but it was intended to mean tired.

At one time, emoji were of little concern to lawyers, as they were rarely used in serious business communications. But that is changing rapidly. As discovery in corporate and commercial litigation expands beyond standard business communications, such as email, into social media and other communication applications, messages increasingly include a variety of emoji that need to be preserved, collected, reviewed, and produced.

Emoji in discovery can be challenging for many reasons. First, there are many different emoji, and the variety expands almost daily. As of the end of 2018, there were over 3,000 emoji listed in the Unicode Standard. Second, some emoji render differently across platforms (Apple, Google, Microsoft, Samsung, Facebook, etc.). Thus, the display seen by the producing party when the image is used may not be the same image that the receiving party sees. For example, the “grimacing face with clenched teeth” emoji may appear angry on some platforms, while others may show the image as worried, embarrassed, or sad. The Apple version of the “screaming face” emoji appears different from the Samsung version. Third, deciphering the meaning of an emoji can be difficult because many different emoji appear to communicate the same concept. As I write this, my iPhone has 18 columns of “smileys” and six columns of hand gestures.

As a result, there can be a number of quirky and unintended legal and technical consequences associated with using emoji. In fact, judges have been faced with some interesting choices when it comes to dealing with emoji and what they mean. For example, in U.S. v. Westley No. 3:17-CR-171, 2018 WL 3448161 (D. Conn. July 17, 2018), the court addressed a motion to suppress evidence obtained from criminal defendants’ Facebook accounts; the issue was whether there had been probable cause to search the accounts. In this case, an agent with the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives submitted an affidavit in support of the proposition that the target accounts would contain direct evidence of drug trafficking, firearms offenses, and racketeering. He testified to the meanings of certain emoji based on his experience investigating street gangs, firearms offenses, and narcotics trafficking. Among other things, he testified that he believed that a “cloud” emoji in a posting referred to drugs and that a “gas” emoji in a defendant’s text message was a symbol for “gang.” The court found that the agent could rely on his training to interpret facts—in this case, emoji—to establish probable cause.

Another challenge involves oral testimony concerning communications that include an emoji. For example, in the Silk Road trial, the judge permitted the admission of emoji into evidence; however, when the prosecution began reading quotes from Silk Road Founder Ross Ulbricht’s text messages, the prosecutor omitted the smiley face at the end of one of the sentences. After the defense attorney objected, the prosecution was required to read the emoji, but as noted above, this can get tricky depending on which emoji is depicted and what meaning is ascribed to that emoji.

Guidance for Handling Emoji

Images matter but context is king—and don’t forget to account for sarcasm. A winky face  or an upside-down smiley face  at the end of a sentence could change the meaning significantly.

• Emoji are not easily searchable using standard text/data mining tools.
• Understand how emoji render on different platforms.
• Pay attention to details—emoji can look very similar but have drastically different meanings.
• Do some homework into the various possibilities before deciding which emoji to search for when collecting data. Communicate that emoji accurately to your vendor. Confirm that the custodians from whom you are collecting used the same rendition of the relevant emoji.
• If emoji are going to be the subject of discovery, take good care during the discovery process to ensure that the integrity of the emoji are maintained.

Kevin F. Brady, Esquire, is of counsel in the firm of Redgrave LLP in Washington, D.C. He is the immediate past president of the Richard K. Herrmann Technology AIC in Wilmington, Delaware.