1 Digital Evidence Collection and Use CS 585 Fall 2009
2 Outline I. II. III. IV. Disclaimers Crime Scene Processing Legal considerations in Processing Digital Evidence A Question for Discussion
3 Disclaimers IANAL! This lesson is based on several publications from the National Institute of Justice (NIJ):  Electronic Crime Scene Investigation: A Guide for First Responders, Second Edition (April 2008, NCJ )  Forensic Examination of Digital Evidence: A Guide for Law Enforcement (April 2004, NCJ )  Digital Evidence in the Courtroom: A Guide for Law Enforcement and Prosecutors (January 2007, NCJ ) All available from This presentation does not make you an expert!
4 Disclaimers Law Enforcement perspective Federal focus State and local laws may vary Federal laws do not override local laws, except regarding actions by federal law enforcement personnel
5 Why This is Important Evidence is collected to be used at trial To be useful in court, it must be Admissible Collected legally, not hearsay Credible Authentic, reliable, not subject to challenges Persuasive Helps the prosecution s (or plaintiff s, or defendant s) case
6 II. Crime Scene Processing
7 First Responders Principles: I. The process of collecting, securing and transporting digital evidence should not change the evidence. II. III. Digital evidence is fragile; special care must be taken to preserve it. Digital evidence should be examined only by those trained specifically for that function. Trust is established by following techniques recognized by the courts as trustworthy. Everything done during the seizure, transportation, and storage of digital evidence should be fully documented, preserved, and available for review. Any gaps will lead to challenges and potential loss of credibility.
8 The First Step First responders need to either Be trained themselves, or Have access to someone with training in dealing with digital evidence First responders without the propoer training and skills should not attempt to explore the contents of or recover information from a computer or other electronic device other than to record what is visible on the display screen. Do not press any keys or click the mouse. NCJ
9 1. Evaluating the Crime Scene Primary considerations: Safety of Officers and everyone at the crime scene. Compliance with federal, state, and local laws. Visually identify all potential evidence and ensure its integrity is preserved.
10 2. Securing the Scene Follow department policy. Note: department should have a written policy! Immediately secure all electronic devices, including personal and portable devices. Ensure that no unauthorized person has access to any electronic devices at the scene. Refuse offers of help or technical assistance from any unauthorized persons. Remove all persons from the crime scene or the immediate area from which evidence is collected. Ensure that the condition of any electronic device is not altered (including on/off state!).
11 3. Checking state of Computers Is it on? Look, listen to find out If on, look for indications of what it s doing Running format or rm r... Look for in-progress communications, e.g. chat room windows
12 4. Interviewing Those Present Valuable source of initial information! Get as much information as possible: Names of users of computers/devices Internet user information including service provider, account names, screen names,... Purposes of computers and devices; who uses them Passwords if known Any offsite storage Documentation (e.g., manuals) for devices and installed software
13 5. Documenting the Scene Goal: create a record to be used in the investigation Record everything at the scene: Devices and their locations and states (power status, ongoing communications, running programs, etc.) Serial numbers of equipment Connections between devices Photograph or video-record the scene if possible Do all this before touching anything!
14 5. Documenting the Scene Other devices that may contain evidence: Audio recorders/players (ipod) GPS accessories Answering machines Computer chips Thumb drives Pagers Copy machines; multifunction machines Printers Telephone Caller ID units Fax machines
15 6. Collecting the Evidence (Generic Algorithm) 1. Secure the scene and get everyone away from devices. 2. If computer is OFF, goto 7 (do NOT turn it on!). 3. If trained personnel are available, get them and goto If the system is networked, STOP and get help from trained personnel. 5. If destructive processes are running, goto If evidence is visible on the screen, thoroughly document and photograph ALL of it. 7. Remove the power cord from the back of the computer. Put tape over the power switch. 8. Label all connections on computers and devices, as well as cables and power supplies.
16 6. Collecting the Evidence (Generic Algorithm) 9. Locate and secure all evidence within the scope of authority for the specific circumstances (if you ve come this far, you d better have a warrant!) 10. Document, log, and photograph all computers, devices, connections, cables, and power supplies. 11. Log and secure all evidence for forensic examination according to agency policies. Laptop modification: Remove battery as well as power supply cord.
17 7. Transporting and Storing Evidence Chain of custody: Be able to prove that evidence was secure and under the control of some particular party at all times. Take steps to ensure that evidence is not damaged in transit or storage. Example: if stored for a long time, batteries may die, causing loss of information in CMOS memory (e.g., BIOS configuration) Example: transport digital evidence in static-free containers: paper or special foil NOT plastic bags Nota Bene: Digital evidence has two parts the physical medium and the information (bits) itself Chain of custody must be maintained for both parts
18 7. Transporting and Storing Evidence At the evidence room or lab: inventory and store appropriately Storage: climate-controlled location not subject to temperature or humidity extremes Protect from exposure to magnetic fields, moisture, dust, vibration, etc. Defense Attorney: Isn t it true, officer, that you transported that hard drive on the seat of your Saab, with the seat warmer turned on?
19 Discussion List the things that first responders did wrong in the Ryan case.
20 III. Legal Considerations
21 Wiretap Act (18 USC 2510 et seq) Focuses on interception of content of communications in transit ( on the wire ) Telephone wiretaps Network sniffers Bugging a room to pick up conversations Prohibits anyone (in the US) who is not a participating party to a private communication from intercepting the communication among the participants using an electronic, mechanical or other device unless one of several statutory exemptions applies.
22 Wiretap Act Exception: court order authorizing interception issued by a court of competent jurisdiction. It is nontrivial to obtain such a court order. Violation can lead to criminal and civil liability. Violation by government officials may result in suppression of evidence obtained. Some states have versions of Wiretap Act that are more restrictive than the Federal version; state and local LE must comply with those acts even if Federal act does not apply.
23 Pen Register and Trap and Trace Statute (18 USC 3121 et seq) The Pen/Trap Statute Governs collection of dialing, routing, addressing and signaling information relating to communications. Telephony: numbers called and calling Internet: IP address and port information Forbids nonconsensual real-time acquisition of noncontent information by any person about a wire or electronic communication unless a statutory exception applies. Where no exception applies, LE must obtain a Pen/Trap order from the court before acquiring such information Again, some states have versions that are more restrictive.
24 ECPA (Stored Communications Provisions) Electronic Communications Privacy Act, stored communications chapter (18 USC 2701 et seq) Provides privacy protections to subscribers to certain communications services providers. Applies when LE seeks to obtain records (billing, dates of service, etc.) about a customer or subscriber from a communications service provider (cell phone, Internet) Says what information requires what kind of authorization for LE to obtain
25 ECPA (Stored Communications Provisions) Subpoena Identity info: name, address, phone numbers outgoing/ incoming, phone number, period of service, means of payment, DHCP address assigned Stored communications ( ) that a customer has retrieved but left on a private provider s server Note well: distinction between private and public provider (employer vs. ISP) Court Order Log of IP addresses communicated with Addresses of those with whom was exchanged Buddy lists Stored communications retrieved from public provider or unretrieved but older than 180 days
26 ECPA (Stored Communications Provisions) Search Warrant Unretrieved communications stored on a provider s server, whether public or private.
27 Privacy Protection Act (42 USC 2000aa et seq) Restricts what LE can seize under a search warrant Applies to materials possessed for the purpose of public dissemination Work products (e.g., a newsletter or pamphlet) Documentary materials (supporting information for work products)
28 Privacy Protection Act (42 USC 2000aa et seq) Does not apply when: Material is contraband (child pornography, e.g.) There is reason to believe seizure is necessary to prevent death or serious injury Material is believed to be related to commission of a crime Remedy: civil damages Note: violation of PPA does not lead to suppression
29 Fourth Amendment to the US Constitution In general: LE must obtain a warrant for any search of a location where a reasonable expectation of privacy applies Computer as closed container by some courts Warrantless search possible under the following exceptions: Consent Exigent Circumstances Search incident to arrest Inventory search (untested in courts) Plain view doctrine
30 Fourth Amendment Exceptions Consent may come from several sources Login banners Terms-of-use agreements Company policy Private-sector employer may consent to search of an employee s workplace computer Consent may be limited as to subject matter, duration, etc. Can be withdrawn at any time.
31 Fourth Amendment Exceptions Plain View Doctrine May apply to computers in some instances LE must legitimately be in position to observe evidence Incriminating nature must be immediately apparent cf. BALCO case!
32 Obtaining a Warrant Two requirements: Reasonable suspicion of a crime Description of the particular items sought These apply to electronic evidence as well Again, see the 9 th circuit decision in BALCO case
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