This article has been written by Manav Sharma pursuing the Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho. This article has been edited by Anahita Arya (Senior Associate, Lawsikho) and Dipshi Swara (Senior Associate, Lawsikho).
Table of Contents
Introduction
Science & Technology is a double-edged sword, if it benefits a person in a specific way, then it also harms some other person in an entirely different manner. If we use technology to store some information, then there is a chance that our activities are monitored wherein our personal information is used inappropriately by someone else. It is true that science and technology is being used by criminals to commit crimes, hide evidence, etc. On the other hand, we should not forget that the same technological advancement helps the investigating agencies to reach a criminal faster and collect evidences efficiently.
In today’s world, technology has occupied a prominent place in not only storing the information digitally but also using this digital information for the purpose of investigating crimes aided by technology. The primary objective behind writing this article is to make readers aware about how the digital data is used as a form of evidence in criminal investigations.
Digital data
The administrative bodies have huge amounts of paperwork wherein ample amounts of information of citizens is stored in their system. With the help of technology the data and information can now be stored in a computer in a binary language which the device knows. This digital data reduces the risk of losing important documents and the information can be accessed easily at any time in one click. However, the digital data can prove to be dangerous when it is misused and this results in cyber-crimes like cyber frauds, blackmailing, cyberstalking, phishing, etc.
With rapid growth in science and technology, the world has witnessed new innovations, and one of them is the Internet of Things (IoT). With the use of IoT technology, sensors are embedded in different objects that collect and share the data for conducting a human-machine or human to human interaction. However, this is not safe, when it is studied through a perspective of privacy. The smart watches are also embedded with the IoT sensors which not only enable a user to check his heartbeat, steps walked, and calorie count, but also this data is shared with the outside world where the cyber experts can easily monitor our activities and also they can easily track our location too. This is the biggest disadvantage of IoT as it is not safe in terms of privacy and there is a huge risk of security breach.
Digital data- laws related to the use of digital data in criminal investigation
A criminal case which involves the use of science and technology, evidence which will be collected will be in electronic form. Without the absence of a forensic expert, it becomes difficult to test the credibility of such a form of evidence. Thus, it becomes necessary for cyber forensics to play a vital role. Cyber Forensics means using science and technology to establish facts in courts of law which commonly includes collection, preservation, analysis as well as court presentation of computer related evidence.
Since protection of digital data is the primary concern, we will be dealing with the laws which govern data protection. In India, the Indian Penal Code, 1860 covers various forms of crimes but it does not have a specific provision relating to digital data protection. The United Kingdom does have a law on digital data protection, named as, the Digital Data Protection Act, 1998, which puts a duty on persons and organisations storing personal digital data to register themselves with the Information Commissioner. It also states that personal digital data can only be stored for lawful purposes and further it shall not be misused in any terms. In the United States of America, Privacy Act, 1974 lays down various standards which puts an obligation upon the government departments, that it can compare and collect digital databases only when it has a reasonable, ethical as well as justiciable claim to do so.
In India, though Article 21 of the Constitution includes the right to privacy, there is still not enough clarity on terms of digital data protection. The Information Technology Act, 2000 was enacted with the objective of granting legal recognition to transactions carried out by means of electronic data interchange and other means of electronic communication. Section 65 of the IT Act, deals with the provision of tampering with computer source documents, which states that, whoever intentionally conceals, destroys or alters, or knowingly causes another to destroy or alter any computer source code used for a computer programme, or computer network when such computer source code is required to be maintained by law, he shall be punishable with imprisonment up to three years, or with fine which may extend to two lakh rupees, or with both.
Section 66 read with Section 43 of the IT Act, 2000, prescribes computer-related offences and penalties in furtherance of the said offences. Section 43 lays down the provision that, no person shall without the permission of the owner or the person in charge of the computer system, can access or secure access to such computer system; and that no such person shall download, copy or extract any database or information from such computer system or computer network. The contravention to the said provision will attract the penalty of paying compensation to the person so affected. Section 66 states that if any person, dishonestly or fraudulently does any act referred to in Section 43 shall be punishable with imprisonment for a term of three years (which can be extended), or with a fine which may extend to five lakh rupees, or with both.
Using digital data in investigations and handling of digital evidence
Under Section 69 of the IT Act, the Controller is vested with the power, that he can direct the subscriber to extend facilities to decrypt, intercept and monitor information if he is satisfied that it is necessary to do so in the interest of sovereignty or integrity of India, as well as defence and security of the territory of India, so as to prevent the commission of any cognizable offence.
The traditional definition of evidence is now substituted, keeping in mind the rise in cyber-crimes, and now electronic evidence can also be brought before the Court. Under Section 3 of the Indian Evidence Act, 1872, the word ‘evidence’ also includes electronic records which can also be produced for inspection in the Court. When the Court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any electronic or digital form, it can take the assistance of the Examiner of Electronic Evidence under Section 45A and such an opinion will be the relevant fact. In today’s world, digital evidence is not only required for cyber-crimes, but also for other forms of crimes as well. Now every crime has links with digital forms and thus, digital evidence also needs to be looked upon to investigate the commission of an offence. Therefore, Section 65B deals with the admissibility of electronic records and states that any information contained in electronic records shall be deemed to be a document and shall be admissible in the proceedings.
In Digital Data Investigation following five basic stages are followed:
- Identification- identification of sources that are likely to contain relevant evidence, the information contained in devices and location of data.
- Preservation- the relevant electronically stored information is preserved by protecting the crime scene, visual images of the crime scene are captured and then, their documentation is done showing how it was acquired and all relevant evidence is compiled together.
- Collection- digital data which is necessary in the investigation is collected, this can also contain collecting the electronic devices from the place where crime is committed, and then the copying, imaging and printing out of the contents of the electronic device is done.
- Analysis- the objective behind the analysis is to draw conclusions and observations based on the evidence collected.
- Reporting- reports are based on proven techniques and methodology, and then, it is expected that other competent forensic examiners should be able to duplicate it and provide similar results.
While collecting the digital evidence or data, it is to be kept in mind that it must be acquired in such a manner that its content remains unaltered. The digital forensic analyst does not use data from the primary source, in place of it, a duplicate copy is made of the contents of that device and the analyst works on this duplicate copy. Before the static data acquisition, the duplicate copy of the content is made, and this is done so as to maintain the integrity of digital evidence.
Files that are stored in computers and contents which are stored in other electronic devices are not sufficient evidence that can be collected. The work of analysis extends beyond this as an expert has to look beyond the hardware to gather evidence that is present on the internet, and it can include content relevant in chat rooms or found in immediate messaging, the websites as well as other networks of the participants and information. By utilizing internet addresses, email header information, the time mentioned on messaging as well as other data which is encrypted, the forensic analyst can compile the chain of all relevant content which will provide a clear image of the activities which were done. Various devices that may contain the digital data are the pen drives, hard drives, CD’s, floppy disks, audio and video files, emails as well as text messages, etc., therefore, an analyst has to be careful while handling and extracting the content, because if it gets altered in any form it will hamper the value of the whole digital evidence.
Recent case laws
In this case, the Hon’ble Supreme Court had held that, with the progress in the field of information technology, the production of electronic evidence has become relevant to establish the guilt of the accused. Electronic documents are to be admitted in a strict sense as material evidence. The computer-generated electronic records in evidence are admissible if they are proved in the manner as prescribed under Section 65-B of the Evidence Act. Section 65B of the Evidence Act makes documents, paper printouts of electronic records which are stored in optical media produced by the computer as admissible in evidence if they fulfil the essential conditions specified under sub-section 2 of Section 65B of the Evidence Act. The Court further viewed the production of scientific and electronic evidence before the Court as of great help not only to the investigating agency but also for the prosecution to prove the case beyond a reasonable doubt.
The Hon’ble Supreme Court has opined that the electronic records produced before the Court for inspection are the documentary evidence as mentioned under Section 3 of the Evidence Act, 1872. The evidence contained in electronic form can be proved only on the basis prescribed by Section 65B of the Evidence Act. It is prescribed that the person who is giving a statement under Section 65B (4) must state in the certificate that the contents in the electronic record are correct to the best of his knowledge and such certificate must accompany the electronic records like computer printout, compact disc (CD), video compact disc (VCD), pen drive, etc., on the basis of which a statement is to be given in evidence when the same is produced as evidence before the Court. These safeguards are to be taken to ensure the source as well as the authenticity of the electronic records, which are the two basic elements pertaining to electronic records. Electronic records can be subject to tampering, alteration, etc. and therefore without ensuring such safeguards, the whole proceedings based on proof of electronic records would result in injustice.
The new devices and latest developments in technology provide assistance in gathering evidence, but their accuracy must be proved. In this instant, the Court took the opinion that electronic and digital evidence must be taken into consideration with proper care and caution. Electronic evidence can be admissible in evidence but the Court must adopt appropriate safeguards when dealing with the authenticity of such evidence.
In the instant case, the Court has to deal with the issue of whether the contents of the memory card or pen-drive which were submitted to the Court with the police report can be treated as a document or not. The Hon’ble Court opined that the basis of classifying an article as a document depends on the information which is contained in it and not on where it is contained. The Court further stated that holding tape records of speeches, audio or video cassettes, including compact disc, are documents under Section 3 of the Evidence Act,1872 and thus, are admissible in evidence. The electronic records produced for the inspection of the Court are documentary evidence under Section 3 of the Evidence Act, 1872.
Concluding remarks
The advancement in the field of science and technology has given the world new innovations and inventions which has also helped in doing investigations. When the crime happens, not only the materials which are found in the crime scene are useful, but also the digital information contained in electronic devices can be of assistance to the investigating agencies. While analysing the digital data and the contents therein the analyst must examine and handle the digital evidence with care and caution as there are chances that the contents might get altered. Digital data can be very useful in a criminal investigation as, phone-tapping, location tracking, the information contained in social media sites, text messages, emails and other useful digital data can give a lead to the investigating agencies which would help in catching the criminal and establishing his guilt before the Court. Electronic evidence and the contents therein are admissible in Court but, there are certain conditions which the Courts follow in recognizing their admissibility because the chances of alteration are much higher and therefore it is prescribed that digital evidence must be handled with proper care and caution.
References
- Using Digital Data in Criminal Investigation: Where and How to draw a line? Accessible at, https://www.rand.org/blog/2017/05/using-digital-data-in-criminal-investigations-where.html
- Electronic Data Protection in India, by S.S Das (2012) PL March S-11, accessible at, http://www.scconline.com
- Cyber Forensics: Law and practice in India, by Saswati Soumya Sahu, accessible at, https://blog.ipleaders.in/cyber-forensics-law-and-practice-in-india/
- The Digital Forensic Process, accessible at, https://www.open.edu/openlearn/science-maths-technology/digital-forensics/content-section-4.1
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