Digital forensics and the legal system: A dilemma of our times

Abstract

Computers have become an important part of our lives and are becoming fundamental to activities in the home and workplace. Individuals use computer technology to send emails, access banking information, pay taxes, purchase products, surf the internet and so on. Business also use computers and the Internet to perform accounting tasks, manage customer information, store trade secrets, and develop new products and services. State, Federal and Local government agencies use the computer and Internet to create and access information. Similarly, digital systems have become the mainstay of criminal activity. Legal proceedings have always been influenced by tradition and court decisions. These legal traditions and decisions have necessitated the development of complex sets of rules that are used to assess forensic evidence in legal matters. Information and communication technology has impacted enterprise investigation and associated legal matters by requiring electronic evidence to be considered. However, not all evidence presented by digital forensic investigators in legal proceedings has been admissible. The digital forensics investigator must adopt procedures that adhere to the standards of admissibility for evidence in a court of law; proper content inspection of a computer system, proper analysis documentation and professional court representation to ensure a successful outcome. This paper presents an overview of issues in the discipline of digital forensics and explores some areas in the legal system where digital forensics evidence is most likely to be questioned. These include case jurisdiction, search and seizure, spoliation of evidence and issues of “good faith”, evidence preservation, investigation and analysis.