Digital Forensic Evidence

Digital Forensic Evidence

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Digital Forensic Evidence

Today, there are numerous electronic personal devices used in routine activities. The digital devices include cell phones, smartphones, and personal digital assistants. The tablets, i-pads, and laptops are not classified as mobile devices but they pose the same challenges. The development of the smartphone has increased its storage capacity significantly. The smartphone is almost able to perform the same functions as a laptop. The mobile devices are used as portable offices, social networking avenues, and entertainment centers. The computing ability has made the devices a necessity. Similarly, forms of crime are also becoming dependant on the devices.

The storage and technological ability have grown tremendously over the last decade. The capability and the features of the devices have made them become data repositories that are able to store large amounts of data for organizations and individuals. Criminals have not been left out in the information revolution. Mobile phones and other digital devices are being used to commit acts of crime.

A case in point is that dug dealers use their mobile phones to call their suppliers and customers. Similarly, a child pornographer uses the devices to capture and stores the illegal content. Today, nearly all crimes committed involve some form of digital evidence from the devices that are portable data carriers (Clancy, 2015). Therefore, the potential for incriminating data has increased significantly over the years and they can be utilized as evidence in criminal proceedings. Valuable information that is very beneficial for the criminal investigation is obtained forms the devices. However, forensic investigators face many challenges in collection and presentation of that evidence in court. There is a very fine line between infringing on the privacy of a suspect and gathering evidence.

The fourth amendment prohibits searches and seizures that are unreasonable. The government can only carry out seizures and searches after the issuance of a warrant by a court of competent jurisdiction if there is a probable cause (Bouwer, 2014). The warrant request should also be supported by an affirmation or an oath describing the place to be searched and the things that are to be seized. The fourth amendment protects the rights of the suspect from harassment by the state. The judges are very serious in matters concerning those rights. The investigators have to conduct due diligence so that they can obtain sufficient probable cause to obtain the warrant to search. Some actions by the law enforcement officers are malicious so the judicial officers should be very firm.

According to the Fourth amendment, a search warrant can be issued if the investigation officers believe that the probable cause can be found in the electronic devices. Warrants are mostly issued on for devices that contain an evidence of the crime, instrumentality of crime and fruits of crime (Price, 2015). The search warrant is very specific about the pace that is to be searched and all the things that are supposed to be seized. Additionally, the perusal of contents in the devices should be restricted only to matters that are of concern to the case. The execution of the orders issued in the search warrants is very important in digital forensic cases. If the investigators fail to adhere to a step, it may compromise the case in totality.

On the case in question, the investigators should seek a search warrant that has the correct location and all the devices in the premises should be listed. The order in the warrant should also be relevant to the matter that of illegal fireworks and explosives (Nelson, Phillips & Steuart, 2014). The best approach for purposes of avoiding complications is to understand the description of all the records in the warrant. Secondly, the limiting language that states the crime, suspects, and the relevant time should also be examined carefully to ensure that the officers do not overstep on their mandate. Thirdly, the officers should ensure that they indicate any record that will be obtained from the search of the premises. In some jurisdictions, a judge may impose orders that are very specific on how the search is to be conducted. Therefore, in those cases, the officer should also be aware of what is expected of them.

The Fifth Amendment states that no person should be compelled to provide evidence against him or herself. The law grants individuals a privilege against self-incrimination and that limits the ability of the government to obtain evidence (Price, 2015). The amendment only applies to three elements, which are incrimination, testimonial communication, and compulsion. In the case at hand, the focus is on testimonial communication because the devices obtained are used to communicate the logistics of how the dangerous substances are transported. The devices obtained are likely to contain encrypted information. The main intention of encryption is to conceal information. Therefore, it may be protected by the Fifth Amendment and the investigators have to find a way of going round the constraints brought about by the law.  The investigators cannot compel the suspect to provide the passwords for the encryption. However, the suspect might decide to give up the passwords willingly if they are confident that no incrimination information can be obtained.

The communication by the suspects can be used as testimonies in two ways. The first way is based on the implied communication that is conveyed and it is based on the cognitive content that the investigators manage to find. Implied communications arise from the documents that are obtained (Bouwer, 2014). For instance, all responses from subpoenas contain implied communications that the respondent is in control of certain documents. The documents should be authentic and they should respond to the subpoena. The investigators should find ways of showing that the documents obtained from the devices can be linked to the suspect in the three manners stated. However, after producing the documents from the devices the investigators have to do more work to prove possession. The documents might have been in the device without the knowledge of the users of the device.

Secondly, the communication can also be testimonial based on cognitive content. In instances where communications require extensive metal use, it is said to be testimonial. However, communications that do not require mental use cannot be said to be testimonial. The court looks at the mental effort that is exerted in compiling documents for purposes of considering whether it is admissible (Clancy, 2015). The respondent needs to have made extensive use of contents from his or her own mind. The testimonial framework has been applied by the court in matters concerning passwords, safe combinations, and strongbox keys. The court has previously ruled that being compelled to surrender the keys to a strong box is not testimonial. However, being compelled to give the combination to a safe is very testimonial.

The distinction can be rationalized best by the fact that the keys to a strong box a present in physical form. However, the combinations for the safe only exist in the mind of the suspects. The Fifth Amendment protects matter that is in the mid of the suspect (Bouwer, 2014). By giving away password combination, the suspect would be self-incriminating himself and the law protects him against that. The best approach by the investigating team would be to obtain the passwords of the devices through other means. If the officers compel the suspect to give them, the passwords a mistrial might be granted because the officers have infringed on the rights of the suspect. The Fifth Amendment is very robust with the support of the suspect.

The law enforcement officers have a duty to protect the public from harmful devices such as fireworks and explosives. However, they should follow due process in their duties. The law provides sufficient muscles to arrest the crime. Extrajudicial means only complicate the matters further and they dismantle the ground that was covered by the clean investigations. The courts in the United States are very firm in their support of the rights of the suspects. Many suspects are set free even though they have committed heinous acts because the law enforcement officers failed in following the due process. In some cases, the law officers are not aware of the correct processes to follow. However, in some cases, some are aware and they choose to ignore. The judicial officers see them as vindictive, they let the suspects go free, and that poses a very serious threat to the members of the public.

References:

Bouwer, G. P. (2014). Search and seizure of electronic evidence: division of the traditional one-step process into a new two-step process in a South African context. South African Journal of Criminal Justice, 27(2), 156-171.

Clancy, T. K. (2015). Fourth Amendment Satisfaction-The Reasonableness of Digital Searches. Tex. Tech L. Rev., 48, 37.

Nelson, B., Phillips, A., & Steuart, C. (2014). Guide to computer forensics and investigations. Cengage Learning.

Price, M. W. (2015). Rethinking Privacy: Fourth Amendment Papers and the Third-Party Doctrine. J. Nat’l Sec. L. & Pol’y, 8, 247.