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  • Writer's pictureThe DigitalBank Vault

#Encrochat Scam Trials: Digital evidence is volatile and could be, intentionally or not, tampered with or modified

Digital evidence is volatile and could be, intentionally or not, tampered with or modified – it also depends on technical environment (information availability and forensic acquisition standards) and legal procedure (access and collection procedural rules). The legal evaluation of the reliability of digital evidence depends also on the justification and appropriateness of selected digital forensic process, methods, and tools for each step of data acquisition, examination, and analysis.

However, accuracy and reliability assessment of Encro-evidence is burdensome due to the complexity of the operation. In each of those steps, different tools, methods, and examiner expertise were used.

They need to be sufficiently documented to be cross-examined according to digital forensics standards by all parties in the criminal proceedings. As digital forensics standards might vary according to jurisdiction, the starting point for evaluation is compliance with the tree fundamental principles in all forensic sciences: integrity (maintain and safeguard the integrity and original condition of digital artefacts); reliability (documentation that demonstrates that a forensic tool, technique, or procedure functions correctly and as intended); and chain of custody (the record identifying the chronology of the movement and handling of digital artefacts).

They are elaborated in international digital evidence and digital forensics standards (ISO/IEC 27037:2012;ENFSI, 2015; Interpol, 2019). Further, EU and CoE have jointly adopted a guide for law enforcement, prosecutors, and judges, for quality assurance in work with electronic evidence which also contains minimum requirements for search and seizure, live forensics, and chain of custody (Jones et al., 2014).

ECtHR also requires procedures to be followed for examining, using, and storing the data for evidence and summary reports to communicate the recordings intact and in their entirety with the defence and the judge.


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