In case you did not know it, in the digital age, it has become easier, and not more difficult to trace electronic evidence.
What is meant by the term ‘electronic evidence’?
It means the storage, recording, or trace, of communications, images, voice recordings, etc…on all and any things electronic, albeit, an IPhone, and IPad, a Blackberry, your TomTom, mobile phones, laptop computers, home and office computers, and even that new dimension known as ‘the cloud’.
It is a common misconception that if you press the ‘delete’ button on your device, that what you are trying to delete is deleted.
That is not likely to be the case. Traces will remain in the hard-drive, or the cloud.
Worse still for those would be cover-uppers, who think that they can delete clandestine chats on Facebook, Twitter, LinkedIn, and other social platforms, think again.
Do you think you have deleted cookies and history of Google searches? On the face of it you have; in reality you have not done so.
Someone somewhere has a record of this.
Do you think you are safe with Blackberry Messenger, Skype, etc…?
All records can be re-traced and found.
Fraudsters always leave a trace…
Why as Lawyers should we be concerned about such things? The answer is to preserve evidence in order to identify wrongdoers, make out a case, trace assets, and find and preserve evidence of the fraud.
Once upon a time, the way in which to preserve such evidence would have been to apply ex parte for an Anton Pillar Injunction, now known as a Search Order.
The trouble with obtaining a Search Order is that it is an expensive interim measure to preserve and prevent the disappearance of evidence. It requires the issue of Proceedings, Witness Statements in support, Court fees, a Skeleton Argument to be drafted, an appearance usually before a High Court Judge. It then requires the instruction and employment of a Supervising Solicitor who is independent and there to observe and ensure that the Search Order is carried out into effect, and to also ensure that the terms of the Order and the penalties for not complying are explained to the person/s being served.
Several new Orders have emerged in the digital age, which are seldom used, but for the sake of saving significant cost to the client, should be used as a better alternative, sometimes, to a full search order.
The reality is that on a case-by-case approach, in some cases, a Search Order is fully justified and necessary, whilst in other cases, it is not.
The less impact and intrusion that an Order has on the recipient, the likely less necessity there will be for a Supervising Solicitor also to attend.
The less impact and intrusion that an Order has on the recipient, the more likely it will be that a Judge grants such an Order.
Doorstep Order – what is it ?
A Doorstep Order is an Order for the production of evidence to a Solicitor, or a Court-Appointed expert, or to the Court of some document, object, etc…
An Officer of the Court usually attends the doorstep, without the need to enter the property or premises, and serves the Order at the doorstep. The implications of not complying with such an Order could mean contempt of Court which is punishable with a fine, and/or imprisonment.
An Imaging Order is an Order to capture what would be imaged on the hard-drive of a Computer/Mobile phone, or something at that particular time. It is useful insofar as it captures that moment in time, but limited because what is generated tomorrow, may equally be of importance. That information will be used to establish the facts of the fraud. Again, it is likely that the Order would not require those requesting such information to enter the property/premises of the recipient. Usually, such electronic devices are portable, and can be brought to the front door and an image taken, or sometimes it is taken to an Expert’s van where he/she has a mobile laboratory by which to take an image and preserve the same.
A Password Order usually accompanies an Imaging Order, without which one may not be able to access the data. Again, the Court will want to be assured that there are sufficient safeguards to keep such information confidential and to protect to a certain extent, the recipient of such an Order.
Such Orders are likely to encroach, or at least to touch upon Article 8 of the European Convention of Human Rights: a right to private life and correspondence. It is beyond the scope of this article to consider the same.
There is no reason, at least in principle, why an Imaging Order could not be used as an alternative to confiscating mobile phones and other electronic equipment. I have at least once case, where my client’s mobile phone: the only means of communication he has with his customers, was taken from him. He is majorly affected by such a confiscation. It could have been avoided if an Imaging Order had been carried out, leaving him with his mobile phone, and his business relatively unaffected.
Computer Forensics Experts
A Forensic Expert should guide you through these Orders. There is always a danger that when tampering with such devices, even under Court Order, that you might unknowingly press a key that activates a permanent deletion programme from the hard-drive. My advice is to be guided by Forensic Experts, and to leave it to them to explain the possible contingencies, and how best to limit the possibility of corruption.
To the best of the writer’s knowledge and belief, no Order has yet to be made for a Cloud Order. At least in theory, it is likely to be in the guise of a Norwich Pharmacal Order, which would be an Order against an Internet Service Provider, or a Content Provider for evidence preservation purposes. As the World progresses to storage on the proverbial ‘cloud’, such issues are likely to become all the more important.
Professor Rosen is a Solicitor-Advocate, and Partner at Darlingtons. He is a qualified Certified Fraud Examiner, a member of the Fraud Advisory Panel, and a visiting Associate Professor of Law at Brunel University.
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