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The Evolution of Evidence in an Information Society

Discovery, litigation and record management have advanced greatly in the last two decades with the dynamic and constant evolution of people communicating, working, and living vicariously online in a digital environment. No longer is the court process synonymous with the long standing tradition of mountains of hard copy evidence, as there is an increasing push on “paperless” courts, cost and time effective ways of producing documents and digital formats of evidence; whilst ensuring compliance with evidentiary requirements, legal ethics and an efficient, reliable eDiscovery process.

Although this shift has been slowly but consistently occurring, various courts are still wary of admitting “foreign” forms of evidence into discovery – and so electronically stored information and evidence retrieved from the internet must be authenticated and have proven integrity to be admissible in the court. To date, many instances of precedent exist in which printouts of mere screenshots have been deemed inadmissible as they miss the core elements of accompanying circumstantial evidence such as metadata, time stamps and e-signatures,  proving their integrity.

Legal Precedent and Federal Rules of Evidence

To establish the legal standing and value of digital content in the courts, case law and Federal Rules of Evidence 901(a) provides for the most transparent guidelines and standards for submitting evidence, regardless of its format.  Paul Grimm in Lorraine v. Markel, addressed the fact that, quite simply; evidence presented to the courts must that what it –claims- to be, and must rely on the additional means of circumstantial evidence to prove this.
The standard of proving authenticity is no different to that of traditional paper records, but must be examined with an additional level of scrutiny. Digital evidence isn’t a far-reaching exceptional instance of evidence production; but is readily used by law enforcement, lawyers and individuals – and so a solid understanding of how to present the strongest evidence possible in line with best practices and the interest of justice we will briefly address this!

Digital Evidence for Law Enforcement Authorities.

From extensive research and observation, it appears that criminal cases dominate the legal sphere in cases using content from the internet as evidence. Given the vast amount of information placed by individuals on websites, blogs and social media by the day, hour and minute – the internet is a rich resource of endless, up-to-date information and can provide an insight into an individual’s character and intentions that even cross-examination may fail to do.
The range of crimes either taking place online or associated with ESI ranges broadly from selling illegal substances, firearm possession, breach of parole, child exploitation, fraud, cyberbullying, to hacking, doxxing, spreading of malware, other cybercrimes and much more. Digital evidence relevant to all these cases can come in a variety of forms; such as tweets, social media chat logs, instagram images, online posts, linkedin connections and a litany of others.
In these instances, law enforcement authorities have an onus and duty to monitor illegal activity in line with federal, national and international laws, to communicate information with ISPs, internet moderators and litigators, collect and preserve metadata and to ensure that evidence from online is captured, authenticated and admissible in court, so as not to get a case thrown out and a criminal walk free.

Educating Lawyers in Digital Evidence

Regardless of engaging in commercial, criminal, civil or other forms of litigation, judges, attorneys and litigation support teams must be aware of both the obstacles and solutions facing electronic evidence and eDiscovery now and in the near future.
The relevance of this evidence to John Doe is natural given a quick observation of social media statistics; with over 1.39 billion active Facebook users and 284 million active Twitter users (as of December 2014) the likelihood of parties in a case actively using social media or online accounts in conjunction with the case at hand is highly likely.  The main obstacle with electronic evidence and eDiscovery does not end with the time and cost involved with record management for legal professionals, the training of staff, hours of research and pressure on a client’s finances. A party must also ensure that, as it is transient in nature, electronic evidence is as genuine as the moment it came into existence, and is not edited, deleted or tampered with – and admitted into evidence by the court. This is done by utilising a series of practices – but focusing on proving the authenticity and integrity of digital evidence by accompanying circumstantial evidence.

Proving Authentication and Integrity of Online Evidence?

WebPreserver software does not merely take screenshots of online content, producing efficient snapshots of evidence with the cost and time efficient click of a button once installed. WebPreserver’s innovative technology creates courtroom ready documents by ensuring snapshots of content are accompanied by the necessary circumstantial evidence and additional security features of an automated timestamp and digital signature, validating the authenticity of the content at the time it was created, as that any edits, changes or deletions at a later stage are recorded. Our automated time stamp is essential to the eDiscovery process as it provides a fundamental service in the process of records management, and an automatically created e-signature accompanies every document created, in line with the e-Sign Act which ensures authenticity of a document with a digital signature.

WebPreserver’s technology also produces evidence in a variety of formats, to be chosen by the user; whether in PDF or WARC formats with the accompanying metadata, organised, shared and printed so as to collect, preserve and present authenticated digital evidence and a strong case for your client.

WebPreserver is an easy-to-use browser-based tool that captures posts like incriminating Facebook admissions, credibility destroying tweets etc. and preserves them with “evidentiary quality” for use in prosecution, litigation or administrative proceedings.

Digital Evidence

FBI – Working Group

NIJ Standards