Litigation Enforcement Group

litigation enforcement group

Computer Forensics is Different for Police and Other Law Enforcement

Copyright (c) 2008 Steve Burgess

Computer forensics practices and procedures can diverge significantly depending upon whether the investigation is criminal or civil litigation. Standards for data collection evidence can be different, as can the process of data collection and imaging. Furthermore, the consequences of the case may have dramatically different impacts.

A couple of quick definitions may be in order. Criminal law deals with offenses against the state – the prosecution of a person accused of breaking a law. These offenses may include crimes perpetrated against an individual. “The People”, in the form of a state representative (for instance, the District Attorney) makes formal charges and the accused must then face the government’s full resources. Guilty outcomes can result in fines, probation, incarceration, or even death.

Civil law covers everything else, such as violations of contracts and lawsuits between two or more parties. The prevailing party often is entitled to payment, property or services from the loser. Imprisonment is not at issue in civil cases. As a result, the standard for evidence is not as high in civil cases as in criminal cases.

For the law enforcement computer forensics specialist, a certain amount of extra care should be taken in collecting data and producing results, for the standard of proof is higher. There are advantages on the data collection end, however. For once a court has authorized a search warrant, an officer (and possibly several) with badge and gun can go seize the defendant’s computer by surprise and by force. Once the computer has been seized and imaged, all data is accessible and may result in additional charges being brought against the defendant.

By contrast, in a civil case, there tends to be a lot of negotiation over what computers and what data can be inspected, as well as where and when. There is not likely to be any seizing of computers, and quite a long time may take place between the time the request to inspect a computer is made and the time the computer is made available to be inspected. It is common for one party to have access to a very limited area of data from the other party’s computer. During this time, a defendant may take the opportunity to attempt to hide or destroy data. The author has had several cases wherein the computer needed for analysis was destroyed before the plaintiff had the opportunity to inspect. Such attempts at hiding data are often discovered by the digital forensic sleuth, who may in turn present evidence of such further wrongdoing in expert witness testimony.

Opportunities for learning techniques and interacting with other professionals may differ as well. While some computer forensic software suites and training, such as Access FTK, EnCase, or SMART Forensics are available to most who can pay, others, such as iLook are available only to law enforcement and military personnel. While many support and professional organizations and groups are available to all, some, such as the High Technology Crime Investigation Association (HTCIA) are not open to professionals who provide for criminal defense (with a few minor exceptions).

Police, Homeland Security, and other law enforcement personnel’s goal is to generate a body of evidence significant enough (presuming such evidence exists) to find the criminal defendant guilty. The standard for information presented to the court and jury in such a case is fairly high. From the time digital data or hardware is seized and acquired, Rules of Evidence must be kept in mind (Cornell University has the complete and voluminous code on its website). Law enforcement personnel must follow accepted procedures or evidence could be thrown out. Acquisition of data and discovery in criminal cases often must follow sometimes strict and differing procedures depending upon whether the jurisdiction is federal, state, or municipality and at times depending upon a judge’s preferences.

The expert in a civil case may not analyze all of the data on a computer at a very deep level Initial efforts may rather be a kind of fact-finding mission, intended to determine the value of digging deeper and at greater expense. As such, the initial presentation of data may be fairly informal, and be just enough to induce the parties to settle the case. On the other hand, the data found may be so minimal the line of inquiry into electronic evidence is dropped.

Although we use many of the same tools, computer forensic professionals in private practice and those in law enforcement are held to different standards, have access to different resources, and their work results in substantially different outcomes between the criminal and civil cases to which they contribute.

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