Volume 2 issue 2 December 2014

Proof is Not Binary: The Pace and Complexity of Computer Systems and the Challenges Digital Evidence Poses to the Legal System

John S Atkinson
This article illustrates the challenges that an ‘information society’ poses to the current and future legal system and how the complexities of digital evidence itself have helped pave the path to the current privacy and surveillance status quo. We now live in a society where interaction with computer technology is unavoidable. At the heart of the privacy and surveillance debate lies the ability (or inability) to collect data from digital devices. Any of this data is potentially digital evidence, either in a strict legal sense or merely because it reveals something that would otherwise remain private.
Previously collection of digital evidence at today’s scale would be utterly impractical. Furthermore, while the evidence itself could be as mundane as a photograph, the multiple computer systems that supply it will be highly dynamic, difficult to explain, and capable of automated decision-making. The legal system is left constantly trying to catch up with a relentless technological pace, with precedent set in wholly different contexts, and reliant on a digital forensics field still in its infancy. The logical aspect of digital evidence stretches traditional concepts of custody and jurisdiction. Simultaneously, the complexity and pace of modern technology necessitates a departure from prior (non-digital) forensic culture.