Written by Rowan Slattery. Solicitor, Doogue + George Defence Lawyers.
Recent events, such as Edward Snowden’s divulging of the surveillance apparatuses being run by various governments, have increased our awareness of the great amount of data being captured and retained by our electronic devices and of some of the uses that can be made of that data.
However a recent talk by Dr Bradley Schatz, a digital forensics expert, still managed to surprise me. Did you know that your car’s on-board computer and telematic systems may be capturing information such as when and where your car has stopped and even when a door has opened? Or that the GPS data on your iphone may be logged and then transferred to your desktop computer when syncing with itunes? Or that the various ‘apps’ we all have on our smartphones capture and retain a lot of data?
It was also surprising to hear of the different interpretations that may be applied to digital data (apparently ones and zeros can be polysemous) and of the many reasons why digital data may be unreliable (whether by inadvertent modification or deliberate forgery).
This information has obvious relevance for those practicing criminal law as it has the potential to both incriminate, and exculpate, an accused.
We know that the evidence provided on a brief is: (1) intended to support the prosecution case; (2) likely to be presented in a manner consistent with the prosecution case; (3) unlikely to be all the available evidence; and (4) unlikely to be the only available interpretation of that evidence.
We also know that it is important to be proactive when defending an accused. It is not enough to rely on the evidence provided in the brief. If we think there may be further relevant evidence we must go out and get it.
Engaging a digital forensics expert, as our firm regularly does, can help in a number of ways including:
- Finding data on the multitude of devices we now use including desktops, laptops, tablets, smartphones, CCTV systems and USB sticks to name but a few;
- Gaining access to devices including locked or broken smartphones;
- Obtaining data from these devices including deleted data such as deleted SMSs;
- Drafting the terms of subpoenas;
- Interpreting the available data and identifying deficiencies in that data (eg. As a result of ‘make faults’ such as implementation errors even simple information such as time and date stamps may be unreliable); and
- Providing expert reports and reviewing expert reports.
It is imperative that we as criminal lawyers stay up-to-date with new technologies and of advances in digital forensics so that we can properly advise clients of their implications for the matter at hand.