Ensuring the Legality of the Digital Forensics Process in South Africa

Abstract

In most legal systems, it is crucial that evidence that is obtained for use in any judicial proceedings, especially criminal prosecutions, is obtained lawfully. In other words, no crimes should be committed in the obtaining and examining of any evidence, which will be later, be relied upon in court. Section 86 of the Electronic Communications and Transactions Act 25 of 2002 in South Africa creates a criminal offence of unauthorized access to data, which has a significant potential impact on the acquisition, examination, and analysis of digital evidence; in that traditional digital forensic processes, unless legally authorized, may potentially be in contravention of this law. The legal ramifications for both digital forensics practitioners and the cases that they are engaged on are identified, and appropriate legal solutions are provided to ensure that digital forensic practitioners do not contravene the existing legislation.