Essay on Digital Evidence in Courts: Authentication and Relevancy

Introduction

Digital evidence may be defined as information transferred by an electronic device to be used in a court of law to help solve a case. Before such evidence is regarded as admissible in court, it needs to undergo a process of authentication and relevancy. Such information should be obtained, preserved, and presented legally. Digital evidence is increasingly being used to settle court cases, albeit with its fair share of challenges. Case in point, such evidence is highly complex and contains select properties that make it difficult for digital forensics consultants to establish its validity. These traits contribute to the limitations associated with digital evidence, such as the great amount of time required to scrutinize extensive data. Other problems involve ethics, inadequate automation, and anti-forensic measures by commercial and non-commercial entities, privacy, and admissibility. This paper addresses the limitations and improvement in the use of digital evidence by law enforcement.

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One of the primary shifts in the information and technology area in this century is the collection and analysis of digital evidence which is becoming an essential tool for solving crimes (Chernyshev, Zeadally, Baig, & Woodward, 2017) increasingly. Technology portability has increased the amount of data that can be created, stored, or accessed at every moment (Vermeer, Woods, & Jackson, 2018). Modern technological devices are repositories of both corporate and personal information, and there is a significant benefit of being able to take advantage of forensic evidence to obtain convictions in criminal cases (Goodison, Davis, & Jackson, 2015). However, the use of digital evidence is faced by recovery and admissibility challenges that have significantly affected the overall ability to use it primarily due to privacy concerns. Victims and suspects digital evidence can be used by law enforcement agencies in their investigations and criminal proceedings (Chernyshev et al., 2017). Digital evidence provides valuable leads that help law enforcement to resolve the crime. However, digital evidence can, at the same time possess significant consequences if the right procedures are not used to collect it and use it appropriately in criminal proceeds. Digital evidence can be conceived as information that is leveraged to place people and events within space and time that can be used to prove causality of criminal incidents (Chernyshev et al., 2017). Digital evidence is highly sensitive because it involves personally sensitive information from personal communication gadgets.

Limitations of Digital Evidence in Criminal Proceedings

The first challenge of digital evidence is complexity. This issue is concerned with storing, acquiring, and processing significant bits of data. The increased proliferation of information from digital marketing avenues has led to a high increase in data (Larson, 2014). Evidence is rarely stored in one single medium or host. Instead, it is spread to a variety of digital locations. These locations may be social networks such as Facebook, Twitter, Reddit, Instagram, and other similar sites, or cloud resources (Franke & Arnes, 2017). Information may also be kept in personal storage units such as hard disks. Each of these avenues requires expertise and tools to assess the evidence and subsequently recreate the evidence from there (Larson, 2014). Furthermore, additional time may be needed, depending on the difficulty of the issue.

One suggestion that has been offered to work through the complexity is automation. However, this course of action has been the subject of heavy criticism from a section of digital investigators because it can dilute the quality of the evidence. It suffices to note that automation may reduce the time needed for analysis significantly. It may also lower the number of people required typically during scrutiny. Therefore, with the increased proliferation of technology and the associated advances, the complexity of digital evidence has continued to grow (Franke & Arnes, 2017). Forensic investigators need to develop ways to tackle this challenge in managing digital proof appropriately.

The second limitation of digital evidence involves privacy. Social media usage is at an all-time high, with the number of Facebook account holders, for instance, reaching 2.4 billion as of June 2019. In some cases, it may be necessary to seek information from social media sites to construct a piece of evidence. Herein lies the negative aspect of privacy violation. Cloud computing may exacerbate these privacy concerns. For instance, when Apple, Inc. introduced the iOS 8 operating system, they stated that the company would not unlock phones under any circumstances, even when law enforcement demanded so (Kloza & Mo Cibroda, 2014). Their goal was to protect user privacy. Since the development of that operating system and its successors, Apple would not have access to photos, email, messages, call history, and any other personal data (Kamongi, 2019). The user would protect it using a unique passcode. The demand by law enforcement to use data in these phones as forensic evidence attracts downright refusal by the company, due to well-founded privacy concerns among users.

Privacy protection and digital forensics tend to be conflicting issues. On the one hand, privacy protection aims to safeguard the user's data while on the other, digital forensics seek to extract such data to solve crimes (Kloza & Mo Cibroda, 2014). Expectedly, it is difficult to strike a balance between these two extremes and crises may erupt, as is the case with the aforementioned struggle between Apple, Inc., and law enforcement officers. Preservation of privacy by companies such as Apple regards all data as critically personal and treats it as such. This situation causes a strain on law enforcement officials, who must still find a means to solve crime with as little infringement on privacy as possible. The consequence is increased time and financial demands. One major issue that arises from this circumstance is the need to redefine the nature of data that should be regarded as private and non-private.

The third limitation of digital forensics is the upsurge of anti-forensics techniques in the recent past. These methods usually take the form of cloaking, information hiding, obfuscation, and encryption. Establishing a strong case begins with having substantial evidence to back it. Security experts require the most suitable tools to scrutinize digital data. This process is typically littered with threats by cybercriminals, who pose the risk of significant losses or harm to economic institutions. Cybercrime can interfere with investigations by tampering with evidence or curtailing efforts by the existing forensic tools (Kloza & Mo Cibroda, 2014). In developing fool-proof tools, categorizing the level of privacy for each type of data and providing accessibility on that basis may suffice.

Privacy issues are characteristically compounded by the rapid rate at which technology changes. Legislative bodies should often be at the forefront of establishing laws regarding data privacy and its nexus with forensics. However, their speed of response is vastly slower compared to the pace of the technological shifts taking place. The amount of data being generated daily makes it somewhat impossible to protect the transfer, storage, and access of data (Franke & Arnes, 2017). This challenge is, nonetheless, as old as the technology itself. With each new technological innovation, investigators and data users have struggled to strike this balance, a process that often demands a fresh approach each time a vastly different kind of technology is developed.

The fourth issue with digital forensics is ethics, and is closely connected to the rapid shifts in technology mentioned above. As infrastructural components of data collection and storage become increasingly complex and borderless, digital forensics practitioners tend to push ethical issues to the sidelines (Losavio, Pastukov, & Polyakova, 2015). Usually, the analysis of evidence focuses on the specific bits that are required for the research. For instance, if an investigator is looking through pieces of evidence for a particular case and stumbles upon new material that is otherwise considered illegal to possess but which is unrelated to the case at hand, the examiner may have to prove how they accessed the information and its connection with the investigation. If the two issues are not linked in any way, it is not imperative upon the investigator to report the newly-discovered material (Larson, 2014). However, the fact that it is illegal brings to the surface ethical, legal, and professional conflicts pitting both the defense of the accused party and the examiners. On the one hand, the new information may be termed as private data into which forensics investigators were not permitted to pry initially. On the other, these unique pieces of evidence may bolster the case. Towing this fine line is a constant challenge for digital forensic experts.

The final limitation of digital forensics is establishing best practice standards. The advances in technology have not matched the researchers' response in regards to putting in place means to organize and analyze the data. Members of this community have made a series of attempts to find a consensus on the schema, formats, and ontologies (Li, Dhami, & Ho, 2015). However, success on that front has been rather unsubstantial. According to Zahadat (2019), state and federal governments in the US have been slow and somewhat passive in providing digital forensic investigators with credentials. Suffice it to say, the Department of Justice has made inroads into the issue by offering these credentials to investigators through private companies. The latter has responded to this demand at a much faster rate compared to the government.

The US federal government has formulated guidelines that private companies should follow in credentialing, even though it is ideally their responsibility. Mile2, ISC2, and EC-Council are among the companies at the forefront of providing this service (Li, Dhami, & Ho, 2015). Without a government-sanctioned framework, these private companies may overstep their mandate and act in a manner that is inconsistent with the legal and ethical concerns described in this paper. The areas that need this uniformity of standards in regards to best practice include the collection, reporting, and transfer of evidence (Li, Dhami, & Ho, 2015). Without adequate financing and focus from the relevant bodies, however, private companies will continue to exploit the government's inadequacies to their advantage, which may put people's data at a much higher risk than would otherwise be the case.

Yar (2013) is aware of the importance of addressing cybercrime since it is a current issue affecting business organizations and Internet users. As an experienced author in criminology and sociology, he focusses on cyber-crimes by providing an up-to-date description which does not neglect the related global cybercrime legislation issues (Vermeer et al., 2018). Furthermore, he explains how cybercrime relates to the growth and development of the internet and categorizes the cybercriminal activities (Goodison et al., 2015). He notes that cybercrime law is now embracing globalization, whereby the governments and legal authorities have become more responsive to cybercriminal activity. The law enforcement agencies are concerned about providing better information security while changing the ineffective and outdated cybersecurity policies and standards (Chernyshev et al., 2017). He also utilizes an empirical investigation and analysis of...