[e-Discovery] The Long-term Preservation of Digital Evidence
Posted on 2013-04-09 16:22 YiDiscovery 阅读(364) 评论(0) 编辑 收藏 举报作者: Arthur Gingrande
原文跳转: http://www.documentmedia.com/ME2/dirmod.asp?sid=&nm=&type=Publishing&mod=Publications%3A%3AArticle&mid=8F3A7027421841978F18BE895F87F791&tier=4&id=6D44870EEFAC4C6DBD2BC6DE21DAE9DF
The Long-term Preservation of Digital Evidence |
As the emphasis on electronic discovery continues to grow in the legal community, there remains one issue that, for the most part, continues to elude mainstream awareness, and that is the problem of ensuring the long-term preservation of digital evidence. Digital longevity problems stem from the short life of digital information caused by storage media deterioration, rapidly changing storage devices and shifting file formats. The majority of users are under the impression that because of its easy reproducibility, digital information, unlike analog information, has an unlimited lifetime — and theoretically it does, given the right attention and proper archival diligence. Unfortunately, this defining property of digital documents tends to blind users to their real-world transience and vulnerability. Because rapid technological change and continuously evolving standards require an unrelenting and substantial input of time, labor and funds to safeguard digital data, their preservation tends to require more attention than conservation of other media. Indeed, it does not take much effort to name forms of digital storage that have become virtually obsolete since IBM introduced the PC to the world in 1981. Tape backup systems, 5 ½ inch and 3 ½ floppy disks, immediately come to mind. Indeed, there is a lot of truth to the observation by Jeff Rothenberg that digital information lasts forever - or five years, whichever comes first. From a legal perspective, the digital longevity problem has particular relevance, since not all litigation involves documentary evidence that is recent. So-called "cold cases" have been solved based upon DNA evidence that was over 20 years old but well preserved in an unbroken chain of custody. If these cases had instead depended on preserving digital evidence, the odds on solving them would have severely diminished. Records as digital evidence All of these data types can be stored on various digital media and electronically retrieved later during legal discovery, a process known as electronic discovery or eDiscovery. Electronic discovery specifically refers to discovery of the electronically stored information (ESI) listed previously. In fact, ESI is a term that encompasses virtually anything found stored on any possible computing device – including but not limited to servers, desktops, laptops, cell phones, hard drives, flash drives, PDAs and MP3 players. Technically, information is “electronic” if it exists in a medium that can only be read through the use of computers. Such media include cache memory, magnetic disks (such as computer hard drives or floppy disks), optical disks (such as DVDs or CDs) and magnetic tapes. Electronic discovery is differentiated from “conventional” discovery in that eDiscovery involves computer-usable data while conventional legal discovery refers to uncovering information recorded on paper, film or other media that can be read without using a computer. The law requires the sponsor of digital evidence to lay the proper foundation. The American Law Reports lists a number of ways to establish such a comprehensive foundation. It advises that the advocate demonstrate "the reliability of the computer equipment," "the manner in which the basic data was initially entered," "the measures taken to insure the accuracy of the data as entered," "the method of storing the data and the precautions taken to prevent its loss," "the reliability of the computer programs used to process the data" and "the measures taken to verify the accuracy of the program." These requirements make the problems associated with digital evidence more stringent than those associated with digital longevity. Three ways to preserve digital evidence
Each of these approaches, if properly carried out, can ensure digital longevity; however, each of them has shortcomings. Refreshing, for example, necessitates that its proponent guarantee commitment to a seamless series of revitalization tasks with a life cycle brief enough to keep physical media from becoming inaccessible or obsolete before they are duplicated. Migration circumvents the requirement for standards, but it increases the risk of losing information due to translation errors.Emulation poses significant development challenges and carries with it greater risk since even a slight software error can make it impossible to run the old applications in the new computing environment. |
The Long-term Preservation of Digital Evidence: Part 2 |
» Note: For Part 1 of Mr. Gingrande's article, Click HERE. Additional complications From a legal perspective, meeting chain of custody requirements for a digital object is not any harder than, say, meeting those for DNA or for a bullet collected at the scene of a crime. The issue is one of certification rather than replication because ensuring the chain of custody for digital content does not involve an additional act of copying or physical transformation. It simply requires that any change in safeguarding the digital object must be authenticated and recorded in order for it to be introduced as evidence at a later date. However, this problem cannot be solved by digital means alone. It requires activity outside the digital realm that documents when a change of custody has taken place — or certifies it has not. This mandate can make preserving digital evidence more difficult — but no more so than preserving DNA or keeping a lethal bullet undisturbed in its original condition. The micro-etching solution Norsam uses their micro-etching techniques to manufacture a high-density archival product called HD Rosetta that can store over 100,000 pages of analog objects — and their digital renditions - from microfilm, original documents or other media onto a 2.8" metal Permafilm™ disk out of which low-cost distribution copies can be made. The final analog output is human-eye readable but, since it is etched on a molecular scale using ion-beam technology, it requires a specialized viewer to read. The micro-etching solution ultimately saves a lot of time, labor and money by eliminating the need for digital refreshing, migration or emulation and the risks associated with those preservation activities. In a way, HD-Rosetta constitutes the ultimate "blue-collar solution" solution because, in a way, it is simply a variant of ordinary printing in which raster images are republished on a molecular scale using ion-beam transfer technology. The selection of metal — platinum, iridium, etc. — determines durability. Including a digital rendition of the analog content turns the Permafilm disk into a modern-day Rosetta Stone. A thousand years from today, if there were no viewer available, an electron microscope could be used to view the data, and the availability of the binary code would provide a means for digital translation and replication. When tested at times up to 65 hours, the disks exhibited little or no degradation for temperatures up to 300o C (570o F). If they were stored in an inert gas atmosphere, it is expected that they would resist degradation at temperatures above 300o C (570o F). Results of exposure and electrochemical tests indicate that the Permafilm disc had a high resistance to corrosion in saltwater, tap water and marine air. After 15 weeks of exposure, no pitting was observed for any of the environments, and the text appeared virtually pristine. To date, the Norsam alternative seems to be the best solution to the problem of digital longevity, but in its role as evidence, certain additional mechanisms would still be required to ensure that a proper chain of custody prevailed over a disk's statutory lifetime. Chain of custody issues, however, have long been worked out by the courts. For example, locking up a Permafilm disk in a state-of-the-art bank vault could provide an ironclad answer to the problem. Micro-etching technology still is a bit pricey, so it is not suitable for all interested parties. But for now, it provides a conceptual, if not always affordable, solution to the problem of ensuring the longevity of digital evidence. |