Downloads, Logs and Captures: Evidence from Cyberspace
| Published date | 01 April 1997 |
| Pages | 138-151 |
| DOI | https://doi.org/10.1108/eb025826 |
| Date | 01 April 1997 |
| Author | Peter Sommer |
| Subject Matter | Accounting & finance |
Journal of Financial Crime — Vol. 5 No. 2 — Analysis
Downloads, Logs and Captures: Evidence from
Cyberspace
Peter Sommer
ABSTRACT
The growing use of the Internet, online hosts, electronic
banking and bulletin board systems means that with
increasing
frequency evidence needs to be
collected
from
remote computers for use in
legal
proceedings.
Issues of the
evaluation of weight still need to be
addressed
even if strict
rules of admissibility are removed. The background pro-
cesses involved need to be understood if courts are to be
able to test evidential quality. The
controls
that should be
in place are discussed and a series of
tests
of provenance
and reliability are suggested. Such tests, however, will
never be more than
decision
aids.
A frequent and increasing requirement is the
acquisition of reliable evidence of the existence,
content and provenance of data held on a remote
computer. Any prediction about the growth of
electronic commerce has to include a forecast that
some of these transactions will go wrong — what
evidence can we hope to find of the intentions and
actions of the participants?
It is still true that the vast majority of computer-
derived exhibits offered in legal proceedings con-
sist of relatively normal documents which happen
to have been produced by a computer. Usually this
is in the form of print-out of various kinds such as
accounts, statements, invoices, correspondence,
reports, memoranda, or copies
thereof.
A further
common type of computer evidence is read-out
from single-purpose devices such as alcohol level
meters and telephone call-loggers.1 Nearly all of
the cases on the problems of computer evidence
— and most of the articles in academic legal jour-
nals — are about these two broad classes. Over the
last few years the courts have also been offered
evidence derived from data media. Typically these
have been files derived from the hard disks in-
stalled within computers, the removable floppy
disks used for temporary storage and the tapes and
optical disks used for back-up or archive.2 The
courts have had little difficulty in principle in
accepting such files, even if they include graphics
as well as conventional text.3
But there are many circumstances in which
normal print-out straight from the computer
which generated it does not exist or is not
immediately available. Data media may only be
obtainable with the consent of the computer
owner or by formal discovery/disclosure — and by
the time it is delivered it may not contain the
precise files required. In the alternative it may be
possible to secure seizure under warrant or order
— but such warrants and orders are only issued
against precise criteria4 and again, files and file
contents may alter between the time at which it is
first decided that a file is worthwhile potential
evidence and the point at which a warrant or order
can be executed.5
Since the early 1970s computers accessible via
the public telephone system, leased lines or the
Internet have offered a variety of electronic
products: text, structured data, application pro-
grams and, increasingly, the opportunity to buy
goods and services. These remote access computers
can be bulletin board systems, conferencing sys-
tems,
online publishing systems and a whole range
of Internet-based facilities, above all the World
Wide Web. For more than 15 years various forms
of electronic banking have been available for small
businesses and individuals;6 financial institutions
and large companies have been making payments
and settlements since the 1960s,7 initially via the
telex system.
As the range and use of these connected com-
puters develops and the contexts in which they
operate reflect an ever widening set of commercial
and social circumstances, the files and data that are
held become relevant in an increasing range of
state of affairs. However, many investigators and
regulators seem so far broadly unaware of the
problems of acquiring evidence sufficiently robust
against hostile criticism in court.8
In criminal law allegations can be singled out
claiming:
— infringed copyright materials offered in the
course of a business9
— evidence of fraudulent offers to deliver goods10
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