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Electronic Evidence and Electronic Signatures
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table of contents
  1. Cover
  2. Title Page
  3. Copyright Page
  4. List of Contributors
  5. A note on our Creative Commons licence
  6. Dedication
  7. Contents
  8. Software is reliable and robust
  9. Preface
  10. Acknowledgments
  11. Table of statutes
  12. Table of cases
  13. 1. The sources and characteristics of electronic evidence and artificial intelligence
    1. Digital devices
      1. Processors
      2. Mobile devices
      3. Embedded devices
      4. Software
      5. Data storage facilities
      6. Data formats
      7. Starting a computer
    2. Networks
      1. Types of network
      2. Cloud computing
      3. The Internet of Things
      4. The deep web and the dark web
      5. Common network applications
    3. Types of evidence available on a digital device
      1. Files
      2. Metadata
      3. Imaging
      4. System and program logs
      5. Temporary files and cache files
      6. Deleted or ‘lost’ files
      7. Simulations, data visualizations, augmented and virtual reality
      8. Encryption and obfuscated data
    4. Artificial intelligence and machine learning
      1. Simulations, data visualizations, augmented and virtual reality
      2. Transparency and explainability
      3. AI adversarial attacks
    5. Defining electronic evidence
      1. The dependency on machinery and software
      2. The mediation of technology
      3. Speed of change
      4. Volume and replication
      5. Storage and disclosure
    6. Concluding remarks
  14. 2. The foundations of evidence in electronic form
    1. Direct and indirect evidence
    2. Evidence in both digital and analogue form
    3. Metadata and electronic evidence
    4. Means of proof
      1. Testimony and hearsay
      2. Real evidence
    5. Documents and disclosure or discovery
    6. Visual reading of a document
    7. Authentication
    8. Best evidence
    9. Analogue evidence
    10. Digital evidence
    11. Civil proceedings
    12. Criminal proceedings
    13. Admissibility
    14. Weight
    15. Video and audio evidence
      1. Testimonial use in legal proceedings
      2. Identification and recognition evidence
    16. Computer-generated animations and simulations
      1. Computer-generated evidence in England and Wales: civil proceedings
      2. Computer-generated evidence in England and Wales: criminal proceedings
  15. 3. Hearsay
    1. The rule of hearsay exclusion and its rationale
    2. The right of confrontation
    3. Hearsay and electronic evidence
    4. Electronic evidence and real evidence
    5. Testimonial and non-testimonial use of information
    6. Implied assertions
    7. Civil proceedings and the requirement to give notice
    8. Criminal proceedings
      1. Telephone calls and messages
      2. Representations other than by a person
      3. Body-worn camera footage
      4. Business and other documents
      5. Judicial discretion to include hearsay
      6. Judicial discretion to exclude hearsay
    9. Concluding observations
  16. 4. Software code as the witness
    1. The classification of digital data
      1. Category 1: Content written by one or more people
      2. Category 2: Records generated by the software that have not had any input from a human
      3. Category 3: Records comprising a mix of human input and calculations generated by software
    2. Challenging the code to test the truth of the statement
  17. 5. The presumption that computers are ‘reliable’
    1. The purpose of a presumption
    2. Presumptions and mechanical instruments
    3. Judicial formulations of the presumption that mechanical instruments are in order when used
      1. Judicial notice
      2. A ‘notorious’ class
      3. Common knowledge
    4. Evidential foundations of the presumption
    5. How judges assess the evidence of devices controlled by software
    6. Mechanical instruments and computer-like devices
    7. The nature of software errors
      1. Why software appears to fail
      2. Classification of software errors
    8. The development, maintenance and operation of software
      1. Developmental issues and software errors
      2. Increasing the risk of errors through modification of software
      3. Security vulnerabilities
      4. Software testing
      5. Writing software that is free of faults
      6. Software standards
      7. Summary
    9. Challenging ‘reliability’
      1. Aviation
      2. Financial products
      3. Motor vehicles
      4. Emergency services
      5. Medical
      6. The Post Office Horizon scandal
      7. Banking
      8. Interception of communications
    10. Most computer errors are either immediately detectable or result from input errors
    11. Challenging the authenticity of digital data – trial within a trial
      1. A protocol for challenging software in devices and systems
    12. Reintroduction of the common law presumption
    13. The statutory presumption
    14. Challenging the presumption
      1. ‘Working properly’
    15. Concluding remarks
  18. 6. Authenticating electronic evidence
    1. Authenticity and authentication
      1. An example: email
      2. Digital evidence compared to past paradigms
      3. Admissibility and authentication
      4. The best evidence rule
      5. Identity and integrity
      6. Reliability
    2. Methods of authentication
      1. Self-authentication
      2. System authentication
      3. Digital certification
      4. Digital forensics
      5. Extrinsic and circumstantial evidence
      6. Judicial notice
      7. Digital evidence in archival systems
    3. Technological authentication
      1. Digital signatures
      2. Blockchain
    4. Challenges to the authenticity of evidence in digital form
      1. The cloud
      2. The Internet of Things
      3. Digital preservation
      4. Migration and format changes
    5. The business records exception to the rule against hearsay
      1. The business records exception
      2. Authentication of digital business records
    6. Conclusion
  19. 7. Electronic signatures
    1. The purpose of a signature
    2. Dictionary definitions
    3. The manuscript signature
    4. Statutory definition of signature
    5. The functions of a signature
      1. The primary evidential function
      2. Secondary evidential functions
      3. Cautionary function
      4. Protective function
      5. Channelling function
      6. Record-keeping function
    6. Disputing a manuscript signature
      1. Defences
      2. Evidence of the manuscript signature
      3. Intention to authenticate and adopt the document
    7. The electronic signature
    8. Forms of electronic signature
      1. Authority, delegation and ratification
      2. Forged signatures
    9. Evidence of intent to sign
      1. The automatic inclusion of the signature
      2. Partial document with separate signature page
    10. The Electronic Communications Act 2000
      1. The definition of an electronic signature
      2. The elements of an electronic signature
      3. Liability of a certification service provider
      4. The power to modify legislation
      5. Regulation of Investigatory Powers Act 2000
    11. Electronic sound
    12. The ‘I accept’ and ‘wrap’ methods of indicating intent
      1. Click wrap
      2. Browse wrap
      3. ‘I accept’
    13. Personal Identification Number (PIN) and password
    14. Typing a name into an electronic document
      1. Acts by a lawyer as agent
      2. Interest in real property
      3. Loan of money
      4. Employment
      5. Contract
      6. Guarantees and debt
      7. Public administration, the judiciary and the police
      8. Statute of Frauds
      9. Wills
      10. Constitution of a legal entity
      11. Amending boilerplate contractual terms
    15. The name in an email address
      1. Limitation Act 1969 (NSW)
      2. Statute of Frauds
      3. Legal fees arrangement
      4. Civil Law Act
    16. A manuscript signature that has been scanned
      1. Mortgage redemption
      2. Writing
      3. Employment
    17. Biodynamic version of a manuscript signature
      1. Electoral register
      2. Contract formation
    18. Digital signatures
      1. Technical overview of digital signatures
      2. Algorithms and keys
      3. Control of the key
      4. Disguising the message
      5. Public key infrastructure
      6. Difficulties with public key infrastructure
      7. Authenticating the sender
      8. The ideal attributes of a signature in electronic form
      9. Methods of authentication
      10. Types of infrastructure for asymmetric cryptographic systems
      11. Management of the key and certificate
      12. The duties of a user
      13. Internal management of a certification authority
      14. Barriers to the use of the public key infrastructure
      15. Risks associated with the use of digital signatures
      16. What a digital signature is capable of doing
      17. What no form of electronic signature is capable of doing
      18. The weakest link
      19. The burden of managing the private key
      20. Evidence and digital signatures
      21. ‘Non-repudiation’
      22. Certifying certificates
      23. The burden of proof
      24. The recipient’s procedural and due diligence burden
      25. The sending party: the burden of proof of security and integrity
      26. Burden of proof – the jitsuin
      27. Burden of proof – summary
  20. 8. Encrypted data
    1. Encryption
    2. Methods to obtain encrypted data
      1. Breaking the encryption without obtaining the key
      2. Obtaining the key
    3. Compelling disclosure in England and Wales
      1. Protected information
      2. Notice requiring disclosure
      3. Obligations of secrecy and tipping off
      4. Circumventing the procedure
    4. The privilege against self-incrimination
      1. England and Wales
      2. The USA
      3. Canada
      4. Belgium
    5. Concluding observations
  21. 9. Proof: the technical collection and examination of electronic evidence
    1. Accreditation of the digital forensics discipline
    2. Guidelines for handling digital evidence
    3. Handling electronic evidence
      1. Identifying electronic evidence
      2. Gathering electronic evidence
      3. Gathering of data following legal retention or reporting obligations
      4. Copying electronic evidence
    4. Forensic triage
      1. Preserving electronic evidence
    5. Analysis of electronic evidence
      1. Tools
      2. Traces of evidence
    6. Reporting
    7. Analysis of a failure
    8. Anti-forensics and interpretation of evidence
      1. Data destruction
      2. Falsifying data
      3. Hiding data
      4. Attacks against computer forensics
      5. Trail obfuscation
    9. An intellectual framework for analysing electronic evidence
    10. Conclusions and future considerations
  22. 10. Competence of witnesses
    1. The need for witnesses
    2. Separating data reliability from computer reliability
    3. Lay experts as witnesses
    4. Qualification of witnesses
  23. Appendix 1: Draft Convention on Electronic Evidence
  24. Appendix 2: Cumulative vignettes
  25. Index

Contents

Software is reliable and robust

Preface

Acknowledgments

Table of statutes

Table of cases

1.The sources and characteristics of electronic evidence and artificial intelligence

Steven J. Murdoch, Daniel Seng, Burkhard Schafer and Stephen Mason

Digital devices

Processors

Mobile devices

Embedded devices

Software

Data storage facilities

Data formats

Starting a computer

Networks

Types of network

Cloud computing

The Internet of Things

The deep web and the dark web

Common network applications

Types of evidence available on a digital device

Files

Metadata

Imaging

System and program logs

Temporary files and cache files

Deleted or ‘lost’ 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

AI adversarial attacks

Defining electronic evidence

The dependency on machinery and software

The mediation of technology

Speed of change

Volume and replication

Storage and disclosure

Concluding remarks

2.The foundations of evidence in electronic form

Stephen Mason and Daniel Seng

Direct and indirect evidence

Evidence in both digital and analogue form

Metadata and electronic evidence

Means of proof

Testimony and hearsay

Real evidence

Documents and disclosure or discovery

Visual reading of a document

Authentication

Best evidence

Analogue evidence

Digital evidence

Civil proceedings

Criminal proceedings

Admissibility

Weight

Video and audio evidence

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

3.Hearsay

Daniel Seng and Stephen Mason

The rule of hearsay exclusion and its rationale

The right of confrontation

Hearsay and electronic evidence

Electronic evidence and real evidence

Testimonial and non-testimonial use of information

Implied assertions

Civil proceedings and the requirement to give notice

Criminal proceedings

Telephone calls and messages

Representations other than by a person

Body-worn camera footage

Business and other documents

Judicial discretion to include hearsay

Judicial discretion to exclude hearsay

Concluding observations

4.Software code as the witness

Stephen Mason

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’

Stephen Mason

The purpose of a presumption

Presumptions and mechanical instruments

Judicial formulations of the presumption that mechanical instruments are in order when used

Judicial notice

A ‘notorious’ class

Common knowledge

Evidential foundations of the presumption

How judges assess the evidence of devices controlled by software

Mechanical instruments and computer-like devices

The nature of software errors

Why software appears to fail

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

Security vulnerabilities

Software testing

Writing software that is free of faults

Software standards

Summary

Challenging ‘reliability’

Aviation

Financial products

Motor vehicles

Emergency services

Medical

The Post Office Horizon scandal

Banking

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

The statutory presumption

Challenging the presumption

‘Working properly’

Concluding remarks

6.Authenticating electronic evidence

Luciana Duranti and Allison Stanfield

Authenticity and authentication

An example: email

Digital evidence compared to past paradigms

Admissibility and authentication

The best evidence rule

Identity and integrity

Reliability

Methods of authentication

Self-authentication

System authentication

Digital certification

Digital forensics

Extrinsic and circumstantial evidence

Judicial notice

Digital evidence in archival systems

Technological authentication

Digital signatures

Blockchain

Challenges to the authenticity of evidence in digital form

The cloud

The Internet of Things

Digital preservation

Migration and format changes

The business records exception to the rule against hearsay

The business records exception

Authentication of digital business records

Conclusion

7.Electronic signatures

Stephen Mason

The purpose of a signature

Dictionary definitions

The manuscript signature

Statutory definition of signature

The functions of a signature

The primary evidential function

Secondary evidential functions

Cautionary function

Protective function

Channelling function

Record-keeping function

Disputing a manuscript signature

Defences

Evidence of the manuscript signature

Intention to authenticate and adopt the document

The electronic signature

Forms of electronic signature

Authority, delegation and ratification

Forged signatures

Evidence of intent to sign

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

Electronic sound

The ‘I accept’ and ‘wrap’ methods of indicating intent

Click wrap

Browse wrap

‘I accept’

Personal Identification Number (PIN) and password

Typing a name into an electronic document

Acts by a lawyer as agent

Interest in real property

Loan of money

Employment

Contract

Guarantees and debt

Public administration, the judiciary and the police

Statute of Frauds

Wills

Constitution of a legal entity

Amending boilerplate contractual terms

The name in an email address

Limitation Act 1969 (NSW)

Statute of Frauds

Legal fees arrangement

Civil Law Act

A manuscript signature that has been scanned

Mortgage redemption

Writing

Employment

Biodynamic version of a manuscript signature

Electoral register

Contract formation

Digital signatures

Technical overview of digital signatures

Algorithms and keys

Control of the key

Disguising the message

Public key infrastructure

Difficulties with public key infrastructure

Authenticating the sender

The ideal attributes of a signature in electronic form

Methods of authentication

Types of infrastructure for asymmetric cryptographic systems

Management of the key and certificate

The duties of a user

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 weakest link

The burden of managing the private key

Evidence and digital signatures

‘Non-repudiation’

Certifying certificates

The burden of proof

The recipient’s procedural and due diligence burden

The sending party: the burden of proof of security and integrity

Burden of proof – the jitsuin

Burden of proof – summary

8.Encrypted data

Alisdair Gillespie, Jessica Shurson and Stephen Mason

Encryption

Methods to obtain encrypted data

Breaking the encryption without obtaining the key

Obtaining the key

Compelling disclosure in England and Wales

Protected information

Notice requiring disclosure

Obligations of secrecy and tipping off

Circumventing the procedure

The privilege against self-incrimination

England and Wales

The USA

Canada

Belgium

Concluding observations

9.Proof: the technical collection and examination of electronic evidence

Nigel Wilson, Andrew Sheldon, Hein Dries, Burkhard Schafer and Stephen Mason

Accreditation of the digital forensics discipline

Guidelines for handling digital evidence

Handling electronic evidence

Identifying electronic evidence

Gathering electronic evidence

Gathering of data following legal retention or reporting obligations

Copying electronic evidence

Forensic triage

Preserving electronic evidence

Analysis of electronic evidence

Tools

Traces of evidence

Reporting

Analysis of a failure

Anti-forensics and interpretation of evidence

Data destruction

Falsifying data

Hiding data

Attacks against computer forensics

Trail obfuscation

An intellectual framework for analysing electronic evidence

Conclusions and future considerations

10.Competence of witnesses

Stephen Mason and Lynne Townley

The need for witnesses

Separating data reliability from computer reliability

Lay experts as witnesses

Qualification of witnesses

Appendix 1: Draft Convention on Electronic Evidence

Appendix 2: Cumulative vignettes

Index

Annotate

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