Data PrivacyData Forensics and Electronic Evidence

INTRODUCTION

In today’s rapidly involving world, there is a significant shift towards digitalization resulting in increased adoption of digital systems.  This transition allows individuals and organizations to perform more efficiently, leading to enhanced productivity, reduced external operational expenses, improved data security, and expanded business capabilities.

Digitalization offers tremendous opportunities for progress and innovation, but it also presents challenges in terms of cybersecurity. According to recent data from 2022, 75% of the projected world population of 8 billion generates a huge amount of digital data every second accompanied by a growing increase in cybercrimes reaching $6 trillion annually, resulting in substantial financial loss and other negative impacts. Therefore, in response to the escalating cybercrimes, the field of data forensics or digital forensics has emerged as a critical component of cybersecurity.

The main objective of data forensics, also known as digital forensics or cyber forensics is to effectively gather, analyze and preserve electronic evidence in the most original form and in a manner that maintains its integrity and admissibility in initiated legal proceedings.

In the light of growing importance of computer security and the severity of cybercrime, it is essential for computing professionals to have a deep understanding of the technology employed in digital forensics. This article will explore the necessity for the practice of digital forensics to be effective and lawful.

UNDERSTANDING OF THE TERM DATA FORENSICS

Prior to the 1990s, the term “digital forensics” was commonly referred to as “computer forensics,” and it was primarily practiced by law enforcement officers who served as computer forensic technicians. Originally known as computer forensics, the field of digital forensics has evolved to include the examination of various electronic devices, including mobile phones, laptops, desktop computers, and any other device that stores significant amounts of digital information.

Data forensics, also known as digital forensics or cyber forensics, is the process of collecting, examining, and preserving electronic evidence in a way that ensures its integrity and suitability for legal proceedings. This process includes the application of forensic techniques and tools to investigate various unethical cybercrimes, such as hacking, data breaches, fraud, and other unlawful activities conducted in the digital realm.

Data forensics encompasses essential tasks such as acquiring, analyzing, reconstructing, preserving, and presenting data as evidence. It plays a critical role in the identification of cybercriminals, comprehension of their methodologies, and the enhancement of cybersecurity practices.

PROCESS OF DATA FORENSICS

The process of data forensics typically involves several steps, as discussed hereunder briefly:

a. Identification and preparation

 It involves the identification of the evidence, where it is stored, and how it is sorted along with the preparation of necessary resources and tools for data collection and analysis.

b. Data Acquisition and preservation

It is the second stage in which forensic experts apply specialized techniques and tools to obtain data from various sources such as computer systems, storage devices, and data communication. It is important to ensure the integrity of the original data during the acquisition process remains intact.

Once the data is acquired, it is preserved in a sound manner by the creation of a forensic copy or image of the data, ensuring that it remains unchanged and protected from unauthorized access.

c. Data Analysis

In this step, the forensic experts or investigators examine the acquired data by keyword search, encryption, and decryption of data or data recovery to identify the relevant information, patterns, and anomalies. The investigators draw conclusions on the basis of the proof found in the electronic device.

d. Documentation or Data Reconstruction

Based on the analyzed data, the experts reconstruct the sequence of events. There is proper documentation of the crime scene and mapping which helps to recreate and review the actions performed by the person who committed the crime.

e. Findings and reporting

In this last step, all the relevant information is summarised and the findings are documented in a report that presents the results of the investigation. This report must be clear, concise, and objective so that it is admissible evidence in the court.

Additionally, throughout the process, it is pivotal to ensure that the privacy regulations are adhered to and ethical considerations must also be taken into account.  There is a growing need for coordination between forensic experts, law enforcement agencies, and legal professionals to ensure effective investigation.

TYPES OF DATA FORENSICS

There are multiple categories of data forensics, each specializing in different aspects of digital investigation and analysis. A few well-known types of data forensics are-

1. Mobile Device Forensics: It involves extracting and analyzing data from smartphones, tablets, and other mobile devices. It includes recovering deleted data, recovering call logs, text messages, emails, social media activities, and other mobile specifications.

2. Memory Forensics: It involves the analysis of volatile memory in a computer system. It helps in retrieving information such as running processes, network connections, encryption keys, and other volatile data that may not be available on disk.

3. Network Forensics: Network forensics focuses on investigating network traffic, including capturing and analyzing data packets transmitted over computer networks. It helps in identifying network-based attacks, analyzing communication patterns, and reconstructing network activities to determine the sequence of events.

4. Multimedia Forensics: Multimedia forensics involves the analysis of images, videos, and audio files to determine their authenticity, identify tampering either mistakenly or maliciously or alterations, and recover hidden information such as metadata or timestamps.

INTERNATIONAL IMPLICATIONS: EUROPEAN UNION AND THE UNITED STATES

Data forensics is of great significance in an international context, contributing to the global understanding of cybersecurity combating cybercrime. In today’s increasingly dynamic interconnected world, where digital evidence knows no boundaries, data forensics plays a crucial role in addressing transnational cybercrimes and fostering cooperation among law enforcement agencies internationally.

International organizations like Interpol and Europol play a significant role in facilitating cooperation and coordination among nations in combating cybercrime through data forensics. They provide platforms for intelligence sharing, capacity building, and promoting international cooperation in digital investigations.

Furthermore, international treaties and agreements, such as the Budapest Convention on Cybercrime, aim to establish a common legal framework for addressing cybercrimes and enhancing international cooperation in data forensics. These agreements encourage the exchange of information, mutual assistance, and harmonization of legal procedures related to digital evidence.

GDPR and Data Forensics

The General Data Protection Regulation (“GDPR”) is a comprehensive privacy regulation implemented by the European Union (“EU”) in May 2018 to protect the personal data of individuals. It has implications for strict data forensics practices, particularly in the processing of personal data, its collection, storage, and use during forensic investigations to ensure fairness, lawfulness, and transparency. The investigation must have a lawful basis, and personal data should only be used for the explicit purposes defined and necessary for the investigation.

Another important feature of GDPR in data forensics is the protection of individuals’ rights. Individuals have the right to access, rectify, and erase their data during the investigation process. Additionally, GDPR emphasizes the importance of data security and protection measures.  Forensic investigators must implement technical measures to safeguard personal data from unauthorized access or disclosure.

Hence, GDPR has a significant impact on data forensics as it introduces requirements for handling and processing the data, protecting individuals’ rights, and ensuring data security throughout the investigation process.

United States of America

In the United States, data forensics plays a crucial role in various aspects, including law enforcement investigations, litigation support, and cybersecurity efforts.  Data forensics in the US. operates within the framework of federal and state laws. The Fourth Amendment of the US Constitution protects individuals from unreasonable searches and seizures, which includes the examination of digital data.

Specific laws, such as the Electronic Communications Privacy Act (“ECPA”) and the Computer Fraud and Abuse Act (“CFAA”), regulate the collection, use, and disclosure of electronic communications and computer-related crimes.

Data forensics is widely employed in the US by law enforcement agencies, such as the Federal Bureau of Investigation (“FBI”), the Secret Service, and state and local police departments. They employ various forensic techniques and tools to extract and analyze evidence for criminal investigations. Data forensics is also utilized in the private sector for internal investigations, intellectual property theft cases, fraud examinations, and other legal matters.

Private investigators and digital forensic experts assist corporations, law firms, and other organizations in uncovering evidence, identifying security breaches, and conducting electronic discovery during litigation. In addition to this, organizations like the United States Computer Emergency Readiness Team (“US-CERT”) and private security firms collaborate with Government agencies to share information, provide guidance, and support cyber incident investigations.

Most importantly, Data forensics plays a critical role in legal proceedings in the U.S. Digital evidence, obtained through forensic analysis, is presented in court to support or refute allegations in criminal and civil cases.

AMLEGALS REMARKS

Data forensics is an essential and influential field that plays a crucial role in examining and analyzing digital evidence. As technology progresses, the significance of data forensics becomes increasingly evident in various domains, including law enforcement, corporate investigations, and cybersecurity.

The process of data forensics entails a systematic approach to collecting, preserving, scrutinizing, and analyzing digital data with the purpose of uncovering relevant information that can be utilized as evidence in legal proceedings.

It is important to note that data forensics is not limited to any specific jurisdiction or geographical region. The presence of data protection legislation, such as GDPR, CCPA, or the proposed Digital Personal Data Protection Bill, 2022 in India, has a profound impact on the practice of data forensics.

Investigators must navigate through legal frameworks, privacy rights, and obligations pertaining to the gathering, processing, and storage of personal data during investigations. Compliance with data protection regulations is essential to safeguard individuals’ rights and ensure the admissibility of evidence.

– Team AMLEGALS assisted by Ms. Shivangi Banerjee (Intern)

For any query or feedback, please feel free to get in touch with mridusha.guha@amlegals.com or falak.sawlani@amlegals.com