Challenges in Collecting Digital Evidence: A Legal Perspective

Abstract

Collection of digital evidence is relevant in the majority legal proceedings in some way. In criminal proceedings, the public authorities have powerful legal measures at their disposal that allow collection of evidence, but often these measures are not specifically designed to deal with digital evidence. Besides the problem of suitability of traditional evidence rules, law enforcement also has to deal with higher legal standards and often work together with the private sector. Moreover, the practical use of existing special powers addressing digital evidence (like the ones set forth in the CoE Cybercrime Convention) still needs a lot of encouragement. On the other hand, collection of digital evidence in a civil law suit follows different principles; parties have less control over the process but have more flexibility, and following the “meet and confer” principle can establish better tailored rules for their case. However, failure to properly manage preservation and collection of digital evidence may lead to unfavourable outcomes in legal proceedings and end up in getting fines or disruption of business functions and processes. This article discusses issues relating to collection of digital evidence in criminal proceedings, civil cases, arbitration and other legal purposes in order to identify areas where private sector actions can inform law enforcement efforts and vice versa while outlining a model for legal requirements of digital forensic readiness.