TOPIC: Jurisdiction presents many problems for the digital forensic investigator. Describe the problem and its potential solutions
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Technology has played an imperative role in revolutionizing how people interact and conduct their daily activities. With the advent of the Industrial Revolution, the economic sector has witnessed many changes, including increased international trade rate and numerous industrial operations. Different innovations had to be effected to make the business activities more effective and to improve business competitiveness. Among them includes adopting Information Communication Technology (ICT) and the internet. Computerization and digitization of business activities have been a key priority in terms of saving operational costs and enhancing the capability of an organization to meet its long and short-term objectives. Currently, it is not a must for a customer to visit a physical business location to get their preferred good or service. Through the introduction of electronic commerce, customers can order their products from the comfort of their homes.
Additionally, the internet has improved the social environment, especially interactions among people, irrespective of their geographical location. With the introduction of social media such as Facebook, YouTube, Instagram, Snap chat, Twitter, among others, people can connect with their friends and families and provide an opportunity for people to market their products and services. Currently, there are over 3.6 billion social media users around the globe, making it a priority for business owners and marketing professionals seeking to enhance organizational visibility and performance in the market. Although such popularity and increased internet usage by business people and society in terms of social interaction has been playing a positive role in the business and social environment, it has also been under attack by cybercriminals and hackers. Their impact has made businesses and people lose billions of shillings through cyber-crime-related activities. For that reason, the digital forensic investigation field has been in high demand presenting job opportunities for many. However, there are challenges that they face from a legal perspective, especially when giving their evidence in a court of law. Therefore, the current document will have a profound outlook on some of the digital forensic investigators' jurisdiction challenges and some of the potential mitigations.
As mentioned earlier in the current text, digital forensic investigation has become a famous profession with high demand over the past few decades. Such occurrences result in the change of behavior among criminals due to the popularity of digital devices and services that have been prevalent in contemporary society. Digital or computer forensic is a branch of forensic science that involves applying computer investigation and analysis techniques to gather the information that would be used against criminals in a court of law, focusing on data found in computers and digital storage media. Additionally, computer forensics also involves using sophisticated and modern technology to analyze and preserve crucial information that is admissible in a court of law as evidence. Based on such understanding, it is evident that all activities revolving around digital forensic investigation are guided by the rules and legal procedures provided in a country, state, or region governed by law. The procedures and strategies implemented by the law enforcement entities might play a positive or negative role in enhancing effectiveness among forensic investigators. Thus, focusing on the challenges opens an opportunity to develop long-term strategies to enhance the performance among forensic investigators and reduce the rate of digital crime.
Among the challenges presented includes poor education strategies among law enforcement officers provided with the responsibility of analyzing the evidence provided by digital forensic investigators. It is imperative to note that law enforcement officers were tasked with handling physical crimes and investigation activities such as bulgur, murder, and domestic violence, among other common crimes. However, the past few decades have come with new types of criminal behaviors, especially by adopting the technology used by the masses. For example, credit card fraud has been common in the United States, and cyberbullying has also been increasing. Many companies have reported critical information and data loss as hackers have frequently accessed their networks.
Thus, law enforcement officers have little or no knowledge about information technology. The same case applies to court clerks, prosecution, and even the judges in understanding the technical information presented by the forensic investigators. For that reason, there have been gaps in enforcing the law and providing justice to the victims based on poor knowledge of the ICT field. In the long run, digital forensic investigators have been facing challenges in presenting their cases in the court of law, which must be beyond any reasonable doubt.
The other major challenge faced by digital forensic investigators is case jurisdiction. There are different legal systems worldwide, but it is imperative to note that cases must fall within their jurisdiction based on their differences. For example, by having a profound outlook on the computer forensics field, the jurisdiction under which the cybercrime perpetrator resides might differ from where the data was collected and analyzed for the prosecution process to begin. Such differences have been among the significant challenges facing digital forensic investigators. An operation that constitutes an offense might not be deemed legally admissible in another jurisdiction as it is not defined within its laws. In the long run, forensic investigators might not be able to adequately present their evidence and seek victory for their victims, making their work irrelevant. To understand the challenge, Dow Jones & Company Inc v Gutnick and Braintech v Kostiuk are two different cases with similar contents and legal processes.
However, handling the case and verdict provided was different because of the law that governs each jurisdiction. In Dow Jones & Company Inc v Gutnick the Australian High Court decided that a defamation article published on the internet is considered published as long as it has been read and downloaded by the public. Based on the verdict provided, it awarded the Australian businessman grounds for defamation over an article published and posted on the internet by a United States-based organization. Braintech v Kostiuk is a case of similar nature but was handled by a Canadian Court. Based on the verdict provided, a defamation article or information posted on the internet and accessed by users in a different country does not warrant the grounds for defamation. For that reason, a court in a foreign country might not be able to establish its authority. Based on the verdict provided, a Texas court was considered out of line when trying to establish its authority and power over a Columbian inhabitant. The two cases act as a representative of thousands of other similar cases that have been evident in the contemporary corridors of justice, as most cybercriminals conduct their activities which has a direct or indirect impact on internet users based in other countries, making it hard for the forensic investigators to provide their evidence in court.
Lack of legal framework to handle cybercrime and digital-related crimes has also been a challenge among digital offensive investigators, especially when presenting their evidence and findings in a court of law. Forensic investigators have to follow a procedure to gain access to the information and provide relevant reports based on their results based on the region a crime occurred, or the case is being handled. An example of such procedures includes the pre-search and post-seizure warrants part of the investigative processes. A pre-search warrant is a document that authorizes forensic investigators and law enforcement officers to seize digital devices such as mobile phones, servers, and computers. On the other hand, a post-seizure warrant is a document that allows the forensic investigators to tick and record all the activities they have conducted throughout the investigation. It is imperative to understand that digital forensic analysis covers physical and digital evidence. However, the laws in different countries have not provided an adequate legal framework to handle digital evidence. Thus, it poses a significant challenge to the legal fraternity and forensic investigators as there is a gap between the legal system, judiciary, law enforcement agencies, and the investigators.
Based on the challenges presented in the current study, it is imperative to develop relevant and applicable mitigations that will help provide justice for digital or cyber-related crimes. Among the considerations includes investing in training activities among the law enforcement officers and the judicial officers, especially in the field of information technology. Careers on law and information communication technology are different and can never be combined in any legal school. Thus, it has left most law enforcement practitioners with little or no knowledge of the current information technology trends and other related fields. Educating the judicial officers on common ICT concepts, especially those related to forensic science, will be imperative in ensuring the forensic investigators have ample time to explain, defend, and submit their evidence before the court. A jurisdiction might decide to train specific judicial officers, who can then be distributed to different courtrooms.
The other imperative mitigation includes revising the constitution and penal codes to accommodate international digital crimes. As provided in the current text, among the challenges digital forensic officers face is presenting their evidence in a court that is not located where the digital crime occurred. Having a standardized way of handling such cases will be vital in enhancing the services provided by forensic officers. The final mitigation involves a clear legal framework that can guide digital forensic investigators on how to handle digital crimes. Over the past few decades, digital crimes have been rising, which calls for an effective means of reducing them significantly. Thus, providing a standardized process applicable to a specific jurisdiction or region on effective means of handling evidence and presenting it in court, irrespective of whether it was physical or digital.
The current document has an in-depth overview of some digital forensic investigators' jurisdiction challenges and developed recommended mitigations. Based on the document’s findings, one of the challenges includes poor education procedures among the judicial officers and law enforcement agency personnel on digital literacy. The second challenge includes differences in the jurisdiction when applying similar laws. Such a lack of standardization in applying law has denied most people their freedom and justice. The other challenge discussed in the document is the lack of an adequate legal procedure to handle digital evidence. However, the document has discovered that educating the law enforcement officers and judicial staff makes it easy to present the digital evidence in front of a Jury and the judge. The other probable mitigation includes introducing a standardized legal framework that will aid in collecting, analyzing, and presenting digital crime evidence in a court of law. The final possible solution is standardizing laws that apply to digital forensic practice. The difference in their application based on region affects the applicability and relevance of digital forensic investigators, especially when analyzing cases and crimes in different countries. The study is essential for law enforcement officers and the entire legal fraternity to identify the gaps existing in the corridors of justice and enhance their general service delivery to the public.