Digital Forensics & the Court of Law

Mic Merritt

April 14, 2023

Let’s chat about digital forensics – you know, that super cool field that’s been making huge strides in recent years. Digital forensics is a rapidly evolving scientific field that has seen dramatic advanced in recent years and is becoming a total game-changer in criminal investigations, legal battles, and settling disputes. With all the data we’re producing these days, digital forensics is now an essential tool for collecting, preserving, and showing off evidence in court.

Digital Forensics in Legal Proceedings

So, digital forensics has a big role in legal stuff, helping to uncover the truth and hold people accountable. This is done by recovering, analyzing, and presenting digital evidence from devices and systems. By understanding the nature and origin of evidence presented in court, prosecutors can use digital evidence to see if witness statements are legit, or to prove someone’s guilt or innocence. It can also support or debunk defenses made by lawyers.

Digital forensics is all about investigating cybercrimes including hacking, identity theft, and fraud. By analyzing digital evidence, investigators can figure out the source of the criminal actions and the extent of the damage. Plus, digital forensics can be used to identify and prosecute those responsible for committing the crime and recover lost or deleted data that could be used in court.

Types of Digital Evidence

There are lots of different types of digital evidence that can be used in court. I’ve bucketed this evidence into four broad categories including general, transactional, network, and system. General digital evidence includes emails, texts, images, web pages, and internet search histories. Transactional digital evidence covers banking transactions, online purchases, and other financial records. Network related digital evidence is any information generated by the digital systems or computers themselves. System digital evidence includes things like software usage logs, system settings, and system logs.

Admissibility

Digital evidence is becoming more and more important in court, but it must be collected and preserved according to the law. If it’s not handled properly, it could be thrown out of court. In most instances, digital evidence needs to be authenticated in order to be used in court. This process involves testifying to how the digital evidence was collected and preserved to ensure its validity and accuracy. Digital files are very easy to change, so maintaining the integrity of the data is a critical concern. The process of tracking the movement of evidence through its collection, safeguarding, and analysis lifecycle by documenting each person who handled the evidence, the date/time it was collected or transferred, and the purpose of the transfer, is know was the ‘Chain of Custody’:

Document the original source of the data, how it was created, and how it was transferred to law enforcement.
Hashes and digital signatures of the digital evidence should be taken and stored separately from the digital evidence itself.
Copies can be created and stored on physical media.
Digital evidence should be kept on a system or storage that is not connected to the internet and has strong security including authentication, access controls, and logging.

Challenges

The process of collecting, preserving, and presenting digital evidence in court can be complicated due to the complexity of technology today. Some challenges include dealing with huge amounts of data, long audit trails, and capturing a snapshot of computer activity at the exact time it occurred may require specialized tools and expertise. New technologies like cloud computing and containerization also add some challenges.

Legal challenges can pop up too, like questioning the admissibility of digital evidence because of potential manipulation or alteration. That’s why it’s important for legal pros to know about these challenges and be ready to handle them in court.

Prosecution

Law enforcement agencies regularly use digital evidence to investigate crimes. Investigators gather evidence from digital devices, digital files, web pages, and software applications to use in court. Investigators need to have the right skills and knowledge to identify and analyze digital evidence, understand the legal implications, and present their findings clearly. A step missed, might mean a cyber criminal gets to walk away.

Collection and Preservation

When collecting digital evidence, it is essential to adhere to best practices. Live digital evidence collection focused on collecting the evidence in an order of collection that is based on the life expectancy of the evidence in question. This is called the ‘Order of Volatility’ and here’s what that looks like:

CPU, cache and register content
Routing tables, ARP cache, process table, kernel statistics
Memory
Temporary file system or swap space
Data on the hard disk
Remotely logged data
Data contained on archival media

As the digital evidence is collected, it’s labeled and tracked, to ensure it can be easily identified and retrieved when needed. After collection, the digital evidence has to be stored in a secure location. This might be a secure server, secure cloud storage system, or a physical storage device. The digital evidence should also be backed up, to prevent accidental loss or damage.

Future Trends

As digital forensics becomes more important, it’s having a big impact on justice systems. Traditional investigative techniques are getting a boost from advanced computer analysis and data recovery methods, helping law enforcement solve crimes more effectively. Courts can also make quicker and more accurate decisions based on reliable digital evidence.

In the future, we’ll see even more digital evidence as technology keeps evolving. Faster processing power and increased storage capabilities means more digital evidence. Advanced in machine learning algorithms and artificial intelligence could become significant too in terms of not only digital evidence, but also our ability and methods of analyzing that evidence. Law enforcement and courts will have to keep adapting to stay on top of things.

Ethics

Finally, the use of digital evidence poses ethical considerations that must be weighed carefully to ensure justice is being properly served. Evidence must be collected ethically and in a way that protects an individual’s rights in terms of privacy violations and abuse of power. Judges and prosecutors must assess whether properly collected evidence has any implications for civil liberties or due process in order to ensure justice for all parties involved.

Summary

Digital forensics, a rapidly evolving field, has become crucial in criminal investigations, legal proceedings, and dispute resolution. By recovering, analyzing, and presenting digital evidence, it helps uncover the truth and hold individuals accountable. With various types of digital evidence used in court, it’s important to ensure proper collection, preservation, and authentication. As technology advances, law enforcement and courts must adapt to effectively use digital forensics, while also considering ethical implications and maintaining the integrity of the justice system.