- 27/03/2018
- Category: Commentaries
Introduction
In the digital age, a large portion of human activities is recorded on the Internet and our digital devices. Our digital recordings are called digital footprints and can be used as digital evidence in court. This practice has often been used and familiarly referred as digital forensics, the branch of forensic science that uses digital data from computers and other devices to prove actions, including criminal cases. Governments have indeed developed this method to help solve criminal cases. The case of Nikolas Cruz, a mass shooter in Florida, is one example of the use of digital forensics, where the cops used Cruz’s digital footprint to find out the motive behind his crimes.[i] In another case, the police managed to reveal Connie Dabate’s murder case – which was apparently done by her husband – through digital recordings found on the Internet and other devices.[ii]
This new method certainly provides various possibilities in criminal investigations. However, it should be noted that digital forensic practice should be done correctly since the use of digital evidence could substantially affect the outcome of a court decision. [iii] Digital forensics is not only used as direct evidence of a crime but also to ascertain who does what and confirm the alibis of everyone involved.[iv] Therefore, the use of digital evidence by the police and other legal instruments should have ethical and legal considerations that all practitioners can adhere to.
Digital Forensics, A New Method of Criminal Investigation
Digital forensics, also known as computer forensics[v], is one of the forensic sciences that deals with the legal evidence found on computers and digital storage media.[vi] In criminal cases, evidence is needed to prove facts, confirm alibis, and trace cases. There are five important stages in the implementation of digital forensic practices, namely a) identify, b) preserve, c) recover, d) analyze, and e) present.[vii] However, these five stages must have the same understanding. Therefore, specific standards covering legal and ethical aspects are indispensable in this practice.
One of the legal aspects that need to be formulated is the method used to obtain legal evidence. Not only that, but the legal aspects of digital forensics should also cover the topic of who has the authority to access and examine such evidence. These investigators must have the capability to operate digital technologies and receive intensive training on conducting digital evidence in the first place.[viii] Moreover, investigators must master six abilities, which are a) analytical talent, b) computer science/tech skills, c) understanding of cybersecurity, d) organization, e) communication skills, and f) the desire to learn.[ix]
Specific Standards Requirements in Digital Forensic Practice
Although widely applied by the government, John J Sloan, Professor of Criminal Justice and Sociology, University of Alabama, explained that digital forensics is not science-driven, but driven by practitioners.[x] For Sloan, this is a problem because digital forensic assessments depend on every investigator, not a scientifically formulated study.
Another issue is the different perceptions of each investigator. Sloan explained that investigators tasked with the job of determining the relevance of digital evidence do not yet have specific guidance for conducting assessments.[xi] In this case, digital evidence assessments do not have a standardized protocol for identifying, recovering, or processing digital evidence. The absence of specific standards in the assessment of digital evidence can cause several problems. For example, differences in justification of the same case and wrong assessments of digital evidence can cause fatal errors when deciding a case in court. This may be due to four factors, namely a) the technological differences used, b) resource limitations, c) inadequate training, and d) the absence of a specific standard.[xii]
One of the rules on digital evidence that has been formulated by the United Kingdom Association of Chief Police Officers (ACPO) is Good Practice Guide Computer-Based Electronic Evidence[xiii]. The regulation states that:
1) investigators may not alter data stored on digital devices (they may only access the data),
2) investigators with authority to access data are competent in digital forensics and can assess and provide relevant explanations,
3) there have to be technical and practical notes on the steps applied to the digital evidence found so that all investigators examining the evidence have the same results,
4) all parties involved in the investigation must comply with applicable legal law and principles.
The urgency of having specific standards of digital forensics in Indonesia
Against the backdrop, it can be said that the urgency of implementing digital forensics is having specific standards that contain both legal and ethical aspects. In Indonesia, specific standards such as those undertaken by the UK Government has not been formulated in this country. The Indonesian government only refers to the Electronic Information and Transaction Law 2016 (Undang-Undang Informasi dan Transaksi Elektronik 2016) as the legal basis for digital forensic practice. However, the law does not specifically explain the management and examination of digital evidence. The law only describes “people who can understand” digital forensics, but rules that affirm the capabilities of digital forensic experts do not exist.[xiv] The absence of this specific standard leads to problems such as the murder case of Mirna Salihin in Indonesia. At the court, the digital forensic expert presented by the public prosecutor was doubtful about his credibility and legality when describing the results of the digital proofs contained in the CCTV cameras.[xv] If there are specific standards that contain regulations governing the rights, obligations, inspection standards and formal or material requirements, then the debate on digital forensic practice can be overcome.[xvi]
Conclusion
The development of digital technology has made it easier for police to find evidence that strengthens alibis and motives, both from perpetrators and victims. The digital footprints each Internet user leave behind have been utilized by law enforcers to uncover cases and provide alternative evidence for courts. It is important to develop specific standards on the legal and ethical aspects of digital forensics, so every investigator has the same understanding when implementing digital forensic practices. These specific standards can be formulated in both national and international coverage. At the very least, each nation must have a specific standard of digital forensic practice to address cases occurring within the state. In the case of Indonesia, the government must formulate specific standards because its practice has been widely used, yet no standard has existed yet. The government cannot only rely on the Electronic Information and Transaction Law because it is non-specific and can be multi-interpreted. Hence, the government must ensure that the practice is properly regulated.
Editors: Atin Prabandari MA(IR) & Nabeel Khawarizmy Muna, S.IP
picture: unsplash
This article was released on Kompasiana on 22 March 2018. Read the article here: https://www.kompasiana.com/lamiadamayanti/5ab38de45e137301bb474b35/aspek-legal-dan-etis-forensik-digital
References
[i] (2018) Exclusive: Search Warrants in Nikolas Cruz Case Shows Investigators Trying to Find Motive. [online] Miami CBS Local available at: http://miami.cbslocal.com/2018/02/23/nikolas-cruz-school-shooting-parkland-investigation/ [Accessed 03 March 2018]
[ii] Altimari, Dave. (2017). A Marriage Marked by Secrets, A Murder Case Months in The Making. [online] Courant available at: http://www.courant.com/news/connecticut/hc-ellington-murder-fit-bit-20170422-story.html [Accessed 03 March 2018]
[iii] Joint Technology Committee (JTC). (2016). Managing Digital Evidence in Courts. [online]NSNC, p.4. available at: http://www.ncsc.org/~/media/Files/PDF/About%20Us/Committees/JTC/JTC%20Resource%20Bulletins/Digital%20Evidence%203-14-2016%20FINAL.ashx [Accessed 03 March 2018].
[iv] Noyes, Katherine. (2014). And there he stood, with a smoking datum in his hand. [online] Fortune, available at: http://fortune.com/2014/08/28/digital-forensics/ [Accessed 04 March 2018]
[v] National Institute of Justice (NIJ) (2016). Digital Evidence and Forensics. [online] NJJ, available at: https://www.nij.gov/topics/forensics/evidence/digital/pages/welcome.aspx. [Accessed 03 March 2018]
[vi]Roufa, Timothy. (2017). Forensic Computer and Digital Forensics. [online] The Balance, available at: https://www.thebalance.com/digital-forensics-job-and-salary-information-974469 [Accessed 03 March 2018]
[vii] Blaine, Stephens. (2016). What is Digital Forensic? [online] Interworks, available at: https://www.interworks.com/blog/bstephens/2016/02/05/what-digital-forensics [Accessed 04 March 2018]
[viii] Sloan, Op. Cit.,
[ix] Bradford, Laurence. (2017). 6 Skills Required for A Career in Digital Forensics. [online] Forbes, available at: www.forbes.com/sites/laurencebradford/2017/04/29/6-skills-required-for-a-career-in-digital-forensics/amp [Accessed 04 March 2018]
[x] Sloan, John J. (2015). There’s no code of ethics to govern digital forensics – and we need one. [online] The Conversation, available at: https://theconversation.com/theres-no-code-of-ethics-to-govern-digital-forensics-and-we-need-one-45755 [Accessed 05 March 2018]
[xi] Ibid.,
[xii] Ibid.,
[xiii] Kizza, Josehp Migga. (2017). Ethical and Social Issues in the Information Age (Six Edition). Berlin: Springer International, p. 351.
[xiv] See. Undang-Undang Republik Indonesia Nomor 19 Tahun 2016 Tentang Perubahan Atas Undang-Undang Nomor 11 Tahun 2008 Tentang Informasi Dan Transaksi Elektronik
[xv] Sari, Nursita. (2016). Keterangan Saksi Ahli Digital Forensik Diragukan Kuasa Hukum Jessica. [online] Nova Grid, avalaible at: https://nova.grid.id/news/peristiwa/keterangan-saksi-ahli-digital-diragukan-kuasa-hukum-jessica, [Accessed 08 March 2018]
[xvi] Alsa Indonesia. (2016). Legalitas Digital Forensik dalam Sistem Pembuktian Hukum Acara Pidana di Indonesia. [online] available at: https://issuu.com/alsaindonesia/docs/ailo_alsa_lc_unsrat.docx [Accessed 08 March 2018]
