Software is reliable and robust
1.The sources and characteristics of electronic evidence and artificial intelligence
Types of evidence available on a digital device
Temporary files and cache files
Simulations, data visualizations, augmented and virtual reality
Encryption and obfuscated data
Artificial intelligence and machine learning
Simulations, data visualizations, augmented and virtual reality
Transparency and explainability
The dependency on machinery and software
2.The foundations of evidence in electronic form
Evidence in both digital and analogue form
Metadata and electronic evidence
Documents and disclosure or discovery
Testimonial use in legal proceedings
Identification and recognition evidence
Computer-generated animations and simulations
Computer-generated evidence in England and Wales: civil proceedings
Computer-generated evidence in England and Wales: criminal proceedings
The rule of hearsay exclusion and its rationale
Hearsay and electronic evidence
Electronic evidence and real evidence
Testimonial and non-testimonial use of information
Civil proceedings and the requirement to give notice
Representations other than by a person
Judicial discretion to include hearsay
Judicial discretion to exclude hearsay
4.Software code as the witness
The classification of digital data
Category 1: Content written by one or more people
Category 2: Records generated by the software that have not had any input from a human
Category 3: Records comprising a mix of human input and calculations generated by software
Challenging the code to test the truth of the statement
5.The presumption that computers are ‘reliable’
Presumptions and mechanical instruments
Judicial formulations of the presumption that mechanical instruments are in order when used
Evidential foundations of the presumption
How judges assess the evidence of devices controlled by software
Mechanical instruments and computer-like devices
Classification of software errors
The development, maintenance and operation of software
Developmental issues and software errors
Increasing the risk of errors through modification of software
Writing software that is free of faults
The Post Office Horizon scandal
Interception of communications
Most computer errors are either immediately detectable or result from input errors
Challenging the authenticity of digital data – trial within a trial
A protocol for challenging software in devices and systems
Reintroduction of the common law presumption
6.Authenticating electronic evidence
Authenticity and authentication
Digital evidence compared to past paradigms
Admissibility and authentication
Extrinsic and circumstantial evidence
Digital evidence in archival systems
Challenges to the authenticity of evidence in digital form
The business records exception to the rule against hearsay
The business records exception
Authentication of digital business records
Statutory definition of signature
The primary evidential function
Secondary evidential functions
Disputing a manuscript signature
Evidence of the manuscript signature
Intention to authenticate and adopt the document
Authority, delegation and ratification
The automatic inclusion of the signature
Partial document with separate signature page
The Electronic Communications Act 2000
The definition of an electronic signature
The elements of an electronic signature
Liability of a certification service provider
The power to modify legislation
Regulation of Investigatory Powers Act 2000
The ‘I accept’ and ‘wrap’ methods of indicating intent
Personal Identification Number (PIN) and password
Typing a name into an electronic document
Public administration, the judiciary and the police
Constitution of a legal entity
Amending boilerplate contractual terms
A manuscript signature that has been scanned
Biodynamic version of a manuscript signature
Technical overview of digital signatures
Difficulties with public key infrastructure
The ideal attributes of a signature in electronic form
Types of infrastructure for asymmetric cryptographic systems
Management of the key and certificate
Internal management of a certification authority
Barriers to the use of the public key infrastructure
Risks associated with the use of digital signatures
What a digital signature is capable of doing
What no form of electronic signature is capable of doing
The burden of managing the private key
Evidence and digital signatures
The recipient’s procedural and due diligence burden
The sending party: the burden of proof of security and integrity
Methods to obtain encrypted data
Breaking the encryption without obtaining the key
Compelling disclosure in England and Wales
Obligations of secrecy and tipping off
The privilege against self-incrimination
9.Proof: the technical collection and examination of electronic evidence
Accreditation of the digital forensics discipline
Guidelines for handling digital evidence
Identifying electronic evidence
Gathering of data following legal retention or reporting obligations
Preserving electronic evidence
Analysis of electronic evidence
Anti-forensics and interpretation of evidence
Attacks against computer forensics
An intellectual framework for analysing electronic evidence
Conclusions and future considerations
Separating data reliability from computer reliability
Appendix 1: Draft Convention on Electronic Evidence