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.In this regard, the use ofdiagrams and similar visual aides showing the movement of data or linkages betweencomputers and users might be beneficial.107 THE USE OF THE INTERNET FOR TERRORIST PURPOSES368.As part of its case in prosecutions based on some form of computer use, theprosecution will need to identify the defendant as the user, at the material time, of thecomputer, device or Internet service used in the commission of the crime with whichhe or she is charged, and establish links proving that fact.There are several ways inwhich this can be done: (a) the defendant might make a confession or admit this fact;(b) his or her presence at the computer might be established by circumstantial means(e.g.he or she was the only person present where the computer was located or at thematerial time, he or she was the registered user of the relevant hardware or software,or there is other information on the computer that is solely within the defendant sknowledge); or (c) the link can be established by analysing the contents of the device/service the defendant was alleged to have used.This might involve the prosecutor pro-ducing evidence about specific characteristics of the material on the device (e.g.adocument) or a comment made in an intercepted communication that are unique tothe defendant.Finally, although they are not infallible, time and date stamps on digitalfiles can be a compelling method of linking the defendant to the relevant device attimes material to the commission of a crime.165369.While the specifics may vary, the general approach taken by courts in manycountries when determining the admissibility of evidence in criminal trials is based onrelevance and reliability: is the evidence which a party seeks to adduce relevant, and isit reliable? In the case of relevant digital evidence, the challenge for prosecutors in manycases will be to satisfy the court of its reliability, both in terms of content and the methodsused to collect and bring it before the court.The process of satisfying a court that digitalevidence is admissible often involves proving the lawfulness of the methods used to collectit and preserve its integrity from the point at which it is collected through to its productionin court.This is known as the chain of custody or chain of evidence : the procedures,both operational and legal, for preserving the integrity of evidence.In most countries,there are strict legal rules relating to the chain of custody, which require evidence to beimmediately recorded, centralized, sealed and protected against contamination pendingtrial, in some cases under the supervision of a judicial officer.370.In terrorism cases involving the collection and use of intercepted communicationsor digital forensic evidence, prosecutors should ensure, in close collaboration with intel-ligence and/or law enforcement agencies, that such evidence has been collected in alawful manner and preserved and produced in a manner that meets the evidentialrequirements of the jurisdiction in which it will finally be used.Collecting and produc-ing digital data as admissible evidence, especially when it is held remotely by a suspector related third party in other jurisdictions, is a challenging task for both investigatorsand prosecutors.In addition to the technical complexities of capturing and preservingthe integrity of required data, the need in some situations to rely upon the cooperationof foreign intelligence, law enforcement or prosecuting agencies, acting under differentlaws and procedures regulating the collection and use of such data, can make suchprocesses lengthy and resource-intensive.165United States Department of Justice, Office of Justice Programs, National Institute of Justice, Digital Evidencein the Courtroom: A Guide for Law Enforcement and Prosecutors (2007), chap.4, sect.IV.Available from www.ncjrs.gov/108 pdffiles1/nij/211314.pdf. CHAPTER VI.PROSECUTIONS371.In investigations involving the collection of digital data located entirely withinone jurisdiction, issues relating to its admissibility as evidence are likely to centre largelyto the legal basis on which it was collected and its subsequent handling and preserva-tion (i.e.the chain of custody or evidence) [ Pobierz całość w formacie PDF ]
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.In this regard, the use ofdiagrams and similar visual aides showing the movement of data or linkages betweencomputers and users might be beneficial.107 THE USE OF THE INTERNET FOR TERRORIST PURPOSES368.As part of its case in prosecutions based on some form of computer use, theprosecution will need to identify the defendant as the user, at the material time, of thecomputer, device or Internet service used in the commission of the crime with whichhe or she is charged, and establish links proving that fact.There are several ways inwhich this can be done: (a) the defendant might make a confession or admit this fact;(b) his or her presence at the computer might be established by circumstantial means(e.g.he or she was the only person present where the computer was located or at thematerial time, he or she was the registered user of the relevant hardware or software,or there is other information on the computer that is solely within the defendant sknowledge); or (c) the link can be established by analysing the contents of the device/service the defendant was alleged to have used.This might involve the prosecutor pro-ducing evidence about specific characteristics of the material on the device (e.g.adocument) or a comment made in an intercepted communication that are unique tothe defendant.Finally, although they are not infallible, time and date stamps on digitalfiles can be a compelling method of linking the defendant to the relevant device attimes material to the commission of a crime.165369.While the specifics may vary, the general approach taken by courts in manycountries when determining the admissibility of evidence in criminal trials is based onrelevance and reliability: is the evidence which a party seeks to adduce relevant, and isit reliable? In the case of relevant digital evidence, the challenge for prosecutors in manycases will be to satisfy the court of its reliability, both in terms of content and the methodsused to collect and bring it before the court.The process of satisfying a court that digitalevidence is admissible often involves proving the lawfulness of the methods used to collectit and preserve its integrity from the point at which it is collected through to its productionin court.This is known as the chain of custody or chain of evidence : the procedures,both operational and legal, for preserving the integrity of evidence.In most countries,there are strict legal rules relating to the chain of custody, which require evidence to beimmediately recorded, centralized, sealed and protected against contamination pendingtrial, in some cases under the supervision of a judicial officer.370.In terrorism cases involving the collection and use of intercepted communicationsor digital forensic evidence, prosecutors should ensure, in close collaboration with intel-ligence and/or law enforcement agencies, that such evidence has been collected in alawful manner and preserved and produced in a manner that meets the evidentialrequirements of the jurisdiction in which it will finally be used.Collecting and produc-ing digital data as admissible evidence, especially when it is held remotely by a suspector related third party in other jurisdictions, is a challenging task for both investigatorsand prosecutors.In addition to the technical complexities of capturing and preservingthe integrity of required data, the need in some situations to rely upon the cooperationof foreign intelligence, law enforcement or prosecuting agencies, acting under differentlaws and procedures regulating the collection and use of such data, can make suchprocesses lengthy and resource-intensive.165United States Department of Justice, Office of Justice Programs, National Institute of Justice, Digital Evidencein the Courtroom: A Guide for Law Enforcement and Prosecutors (2007), chap.4, sect.IV.Available from www.ncjrs.gov/108 pdffiles1/nij/211314.pdf. CHAPTER VI.PROSECUTIONS371.In investigations involving the collection of digital data located entirely withinone jurisdiction, issues relating to its admissibility as evidence are likely to centre largelyto the legal basis on which it was collected and its subsequent handling and preserva-tion (i.e.the chain of custody or evidence) [ Pobierz całość w formacie PDF ]