/ LEGAL EDITORIAL
LEGAL EDITORIAL
Ahoy there, readers, from the legal wheelhouse of Digital Forensics Magazine!
by Moira Carroll-Mayer
I
n this edition, articles by Eric Fiterman and Bill Dean take a and others, can recover evidence from parts of your hard drive
look from the practitioners’ viewpoint at two areas of vital im- that you thought were empty, parts that you had cleaned.”
portance to digital forensics experts, where their endeavours Evidence Eliminator is also claimed to be “… designed,
must satisfy the requirements of the courts. These are respective- tested and proven to defeat the exact same ‘Forensic Analysis’
ly the necessity of answering to standards laid down in the case equipment as used by police and government agencies, etc.”
of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) and enables users to: “… purge [their] PC of hidden computer
for the presentation of expert evidence, and the advantages and data which could later be recovered with Forensic Software to
perils arising from the US ‘Federal Rules of Electronic Discovery’. be used as evidence against [them].” Mr Beale denies that im-
The issues are as persistent as they are omnipresent. In mediately before the BIS inspection he ‘deliberately went out
2005 the House of Commons Select Committee on Science and got a piece of software to suddenly delete lots of things
and Technology (www.publications.parliament.uk/pa/cm/cm- on my computer’ and claims he ‘had no concept at that time of
sctech.htm) discussed the inability or disinclination of scientific what the DTI investigation would look like and was subse-
experts to explain the what, how and why of their investigations quently absolutely astounded that such things [as data on a
before the courts. Such failures can only serve to undermine computer hard drive] would even be looked at’.
the clarity, weight and admissibility of evidence. The comments The authors of the BIS Report allege that Mr Beale deliberate-
made by the Select Committee are as relevant today as they ly deleted data from the hard drive before they could access it,
were then; the recommendations just as pertinent. For anyone while he was fully aware of their intention to image and review
presenting digital (or any scientifically based) evidence before the contents for documents relevant to their investigation.
the courts in the USA, the Daubert standards are a fairly reliable Whatever the correctness of the assertions made by either
stalwart. Contemporary UK courts adopt Daubert ad hoc and Mr Beale or the BIS, the relevance and timeliness of Bill
always subject to measures intended to avoid miscarriages of Dean’s article on the US Federal Rules on Electronic Discovery
justice due to over-reliance upon expert evidence. for corporate governance regimes everywhere, in light of the
In the USA changes to the ‘Federal Rules of Electronic MGRG debacle, is clear. The BIS report was constrained by
Discovery’ have increased the demand for digital forensics the absence in the UK corporate governance framework of ad-
experts. This is evident, for example, in the collection and equate requirements on digital data retention, from discuss-
presentation of digital evidence to a party seeking it. Where ing the use by a company director of Evidence Eliminator.
discovery of evidence is resisted on the grounds that it is un- It is a pity that the matter of company directors’ interference
reasonable to produce it, an expert may be needed to justify a with digital data and the possibility of implications from criminal
resulting protective order, or to establish that information was and company law are not directly addressed in the report. In the
deleted in good faith, not as a means of avoiding the revela- contemporary environment of private and public loss, anguish
tion of something condemnatory. and uncertainty the stakes are raised not only for corporate
This last possibility resonates in the aftermath of the UK policy makers, but also for in-house digital forensics experts and
Department for Business, Innovation and Skills (BIS) report, their compatriots from the further reaches of cyberspace.
released on 11th September 2009, into events surrounding In the next edition, I will have exciting news about the
the going into administration of MGRG motors at Longbridge implications of these, not wholly untoward, developments for
in England (see http://www.berr.gov.uk/files/file52782.pdf). digital forensics experts as in their wake, the digital bounty
The report, ordered by the UK Government following MGRG’s hunter draws closer to shores far from those of the US. /
collapse leaving debts of almost £1.3 billion, suggests serious
contributory accounting and other irregularities.
Among matters coming to light in the report was the extraor-
/ AUTHOR BIO
dinary behaviour of Peter Beale, Chairman of Phoenix Venture
Moira Carroll-Mayer, Digital Forensics Magazine’s Legal Editor,
Holdings (the parent company of MGRG), who early on the
is a lecturer in Procedural and Substantive Law of Forensic
morning following the announcement of inspection by BIS pur-
Computing with published articles on Communication Ethics,
chased the ‘Evidence Eliminator’ software product. Things do
Identity Management & the Implications for Criminal Justice,
the Ethical Implications of Nanotechnology, and Digital
not look good for Mr Beale because the software is (according
Crime & Forensic Science in Cyberspace. Moira is currently
to the report) marketed with these words: “It is a proven fact …
conducting research into the ethical and legal implications of
routine Forensic Analysis equipment such as EnCase and F.R.E.D
advanced autonomous weapons systems.
used by Private and Business Investigators, Law-Enforcement
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