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Digital evidence has become a key component of the judicial process, due solely to the frequency of communications and transactions completed on computers and mobile devices. As with all forms of evidence, the collection, preservation, and examination of digital evidence must be able to meet the requirements of legal admissibility, so that the conclusions made based on that evidence may be presented in court.
The specific rules applicable to any particular investigation will differ based on the jurisdiction of the offense under investigation. However, the admissibility of digital evidence will still be determined on the same principles as physical evidence: relevance, authenticity, not hearsay, best evidence, and not unduly prejudicial. Casey (2011) suggests investigators answer four questions when searching and seizing digital evidence:
Does the Fourth Amendment and/or the Electronic Communications Privacy Act (ECPA) apply to the situation? Have the Fourth Amendment and/or ECPA requirements been met?
How long can investigators remain at the scene? What do investigators need to reenter? (Section 3.2.1).
The Fourth Amendment ensures that individuals are protected against unreasonable search and seizures by the government. Considering whether the Fourth Amendment is applicable in a digital investigation can be difficult because of the transient nature of digital evidence and the multitude of methods by which it can be acquired.
The Electronic Communications Privacy Act (ECPA) (18 U.S.C. 2510-2522) was designed to provide further protection of digital communication, but only specifically addressed the issues of wiretapping, trap devices, and stored communications.
While this law was an important step for the protection of privacy in digital communications in 1986, the argument for revision has been introduced in Congress several times to update the law to include specific guidance for the growing number of different types of digital evidence. Casey (2011) also notes, "The most common mistake that prevents digital evidence from being admitted by courts is that it is obtained without authorization" (section, 3.2.1).
Another reason for digital evidence uncertainty can be seen when flaws are identified in the tools used by digital forensic examiners. This was famously demonstrated during the murder trial of Casey Anthony where digital investigators used a tool that was discovered to have serious design flaws. "This error likely contributed to the reasonable doubt jurors found when they acquitted Anthony of first-degree murder, especially since the correction occurred during trial" (Goodison, Davis, & Jackson, 2015, p. 2).
The Anthony case highlights the need for extensive digital forensic tool testing and validation of results before proceeding to present them in trial. Not only does the testing and validation of digital forensic tools help to establish the legitimacy and verifiable integrity of digital evidence, it also helps to establish and keep the digital investigators honest, as well. Proverbs 10:9 enforces the importance of this concept, "Whoever walks in integrity walks securely, but he who makes his ways crooked will be found out" (ESV). Casey, E. (2011). Digital Evidence and Computer Crime, 3rd Edition, Waltham, MA Academic Press Goodison, S. E., Davis, R. C., & Jackson, B. A. (2015). Digital Evidence and the U.S. Criminal Justice System . In RAND Corporation.