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#Encrochat: The hacker with a warrant and fair trials? You have been cheated in a legal way !




In theory, in order to challenge the Encrochat evidence on valid grounds the defence must have access to the original forensic copy to cross-examine it against the information attributed to the defendant and to search for exculpatory data. Currently, there is no information about the accuracy and integrity preservation of the “original” forensic copy and backups generated. Judges most probably will have to rely on the data provided by Europol in each country, which as shown consists of only a part of the acquired forensic copies. Such data is a result of several pre-processing operations. Nevertheless, the appointed digital forensic experts in each respective jurisdiction can perform a digital forensic examination of the derivative dataset as long as France provides access to the raw data for comparison.


Even if reports on the French operation are kept secret, after Europol distributed the data sets to other jurisdictions, individualized investigations were brought up against suspects. In principle, The ECtHR identified the need to know how relevant data was selected17 while all relevant material or evidence must be made available to both parties.18 It was made clear that France will not appoint a digital forensic expert for any of the subsequent trials in other jurisdictions (Gardiner and Sommer, 2021).


It is unclear also if the defence in each subsequent trial will be presented at least with an individualized digital forensic report to cross-examine the findings of the forensic examiner who has worked to identify the relevant data in the concrete investigation. It is understandable that law enforcement must protect sensitive forensic methodology, know-how, and tools. This is a relevant ground for non-disclosure of the technical device, the infiltration of the network, and the decryption methods.


However, this is just a small part of the forensic acquisition, and it is unclear why other processing steps for examination and analysis of the data have not been presented. In each individual case a forensic report can examine the derivative dataset and provide information on the forensic paths, time stamps, MD5 hash verifications, reporting on missing or corrupted data, or exculpatory observations by the forensic examiner, probabilistic findings, and confidence level in respect to the forensic authentication and identification of the relevant data sets.


These are all standard digital forensics requirements, performed with known tools and methodology which can be presented for validation if Encrochat evidence is to be used as forensic evidence in criminal trials.


The defence and judges must at least have information on the mandate of the forensic examination and analysis of meta and content data, how the data was preserved, and the temporal, link and functional analysis performed to attribute it to suspects/defendants (Pollitt et al., 2018). Excerpts of chat communication without the necessary digital forensic metadata and interpretation cannot be considered authentic or trustful.


 

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