Wednesday, 2 April 2008

Digital Forensics

A small sample of where digital forensics can help organisations includes:

  • Computer break-ins (or Trespass) including the illegal access to the whole or any part of a computer system without right;
  • Illegal interception without right, made by technical means, of non-public transmissions of computer data to, from or within a computer system;
  • Data Interference or the damaging, deletion, deterioration, alteration or suppression of computer data without authorization;
  • Interfering with a system or the serious hindering without right of the functioning of a computer system by inputting, transmitting, damaging, deleting, deteriorating, altering or suppressing computer data;
  • Possession of obscenity/prohibited pornography (e.g. child pornography and bestiality);
  • Industrial espionage;
  • E-mail Fraud;
  • Harassment;
  • Web page defacements (cyber vandalism);
  • Theft of company documents.
  • Contractual disputes

Digital forensics offers advantages over traditional forms of discovery, but competent counsel needs to recognise how to integrate this significant, fast-changing discipline into practice.

E-discovery refers to finding and producing documents stored in electronic form in response to litigation or regulatory requirements.

It is becoming increasingly common to ask for copies of selected e-mail communications or make broad requests for all electronic records. That trend will only intensify in the future.

The Victorian Crimes (Document Destruction) Act 2006 (the Document Destruction Act) was passed into law in Victoria in 2006. Together with the Evidence (Document Unavailability) Act 2006 (the Document Unavailability Act), these pieces of legislation amend the Victorian Crimes Act 1958 and Evidence Act 1958, correspondingly. They where issued in response to concerns raised by the Report on Document Destruction and Civil Litigation in Victoria, by Professor Peter Sallmann. It is imperative that all companies comprehend their responsibility in respect of how they store or destroy any documents. This incorporates email and other electronic files.

The Document Destruction Act establishes additional criminal penalties and the Document Unavailability Act sets up new civil consequences. The Document Destruction Act affects acts carried out in Victoria such as those by companies resident (or engaging in business) within Victoria. The Document Unavailability Act pertains to civil proceedings initiated within Victoria.

The Australian Electronic Transactions Act 1999

The production and storage of documents may be conducted online using electronic means. The Act states:

Requirement to produce a document
(1) If, under a law of the Commonwealth, a person is required to produce a document that is in the form of paper, an article or other material, that requirement is taken to have been met if the person produces, by means of an electronic communication, an electronic form of the document, where:
(a) in all cases--having regard to all the relevant circumstances at the time of the communication, the method of generating the electronic form of the document provided a reliable means of assuring the maintenance of the integrity of the information contained in the document; and
(b) in all cases--at the time the communication was sent, it was reasonable to expect that the information contained in the electronic form of the document would be readily accessible so as to be useable for subsequent reference; and
(c) if the document is required to be produced to a Commonwealth entity, or to a person acting on behalf of a Commonwealth entity, and the entity requires that an electronic form of the document be produced, in accordance with particular information technology requirements, by means of a particular kind of electronic communication--the entity's requirement has been met; and
(d) if the document is required to be produced to a Commonwealth entity, or to a person acting on behalf of a Commonwealth entity, and the entity requires that particular action be taken by way of verifying the receipt of the document--the entity's requirement has been met; and
(e) if the document is required to be produced to a person who is neither a Commonwealth entity nor a person acting on behalf of a Commonwealth entity--the person to whom the document is required to be produced consents to the production, by means of an electronic communication, of an electronic form of the document.

Digital Forensics or also termed Computer Forensics (and sometimes referred to as Cyberforensics) is a study / term that relates to the study of evidences, by following through investigation and analysis, following the set of standards established for collecting admissible evidences (such as the Evidence Act 1995).

The question to ask is "what my firm doing?"

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