How is the criminal justice system learning to cope with the unique complexities of cyberlaw with the analysis of mobile phone data, satellite imagery and emails? And that’s before you add in all the potentially sensitive material on social media sites such as Facebook, Twitter, YouTube, Flickr and Instagram.
Advances in cyberlaw and forensic science, particularly in DNA analysis, continue to revolutionise the ability of investigators to build conclusive cases. But, in a world where hacking is increasingly the criminals’ tool of choice, how well-equipped are we to drive cyber investigations in pursuit of crucial evidence?
There are two strands to the answer. The first is that courts have traditionally preferred direct witness evidence to digital data, which is sometimes disallowed as stand-alone evidence, often for fear that it can be tampered with or that such tampering may be difficult or impossible to identify.
As a result, there is a mindset to be changed. It begins with judges, who need to be trained in the complexities of cyberlaw: how to gather and analyse it, how to authenticate it, and how its veracity or accuracy can be challenged – exactly as courts around the world have always done.
In the US, according to Gary Kessler, associate professor at Embry-Riddle Aeronautical University in Florida, and an academic who has looked at the relationship between the judiciary and digital evidence, most judges acknowledge the need for additional training, particularly in areas such as computer forensics.
While they are “appropriately wary” of digital evidence, says Kessler, they are also professional enough to know they need to be equipped to understand arguments made by lawyers in highly technical cases, by expert witnesses and in previous judgments.