Digital evidence in judicial processes requires electronic traceability for proper validation – Awdhesh

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New Law on Computer Crimes, soon to be published, introduces a new rule on the treatment of data, in order to be considered as evidence in court.

By Pedro Trevisán

Santiago de Chile.- Due to the digital world in which we live and the increasing use of all kinds of electronic devices, the sources of digital evidence have increased exponentially.

This is why the new Law on Computer Crimes – soon to be published – introduces a new rule on data processing, in order to be considered as evidence in court. In this way, the power of the Public Ministry to require telecommunications service providers to retain and capture digital information associated with a case for up to ninety days is added to the Code of Criminal Procedure.

In line with the above, this new standard is added to previous ones that have established the integrity and completeness requirements of electronic evidence, always requiring specific technical measures for its treatment. These allow to guarantee that the data has not been altered or manipulated from its acquisition until the moment in which it will be potentially used in a trial.

In any jurisdiction, the electronic evidence provided in judicial proceedings must be presented in a way that guarantees objective, repeatable and traceable work. Thus, although one of the main challenges of eDiscovery processes is the management of enormous volumes of information related to a case, it is absolutely necessary to take into account in all phases of the process that the results may end up being incorporated into a legal proceeding.

For this reason, from the phase of accessing and obtaining the information in electronic format, it is necessary that it be acquired and examined according to the best practices in computer forensics, guaranteeing the chain of custody at all times.

In addition, given the increasingly intensive use of technology in all areas of the company, the objective sometimes goes beyond the classification or management of large volumes of information, which leads to a more detailed work of technical expertise. -computer, which explains the functioning of the systems and their operation.

Faced with this new challenge, certain questions arise that require answers, such as who is responsible for a certain irregularity, what means and devices could have been used and whether or not the eventual participants in the action are part of the company. The usefulness of these processes, which allow us to obtain proof or evidence that a certain action or fact has been committed, lies in the fact that the courts can have complete, traceable information and an independent technical opinion.

In those cases in which the controversy is directly related to the operation of a certain computer system (possible manipulation of data, intellectual or industrial property matters, contractual breaches on the operation of a certain system, etc.), validation is essential. expert forensic technique. Moreover, in almost any other dispute, it would be recommended that the information in electronic format that is provided has a guarantee of integrity and non-manipulation, being the forensic procedures of acquisition, protection and chain of custody, a standard that should be achieved against all electronic evidence.

Pedro Trevisan is a partner of Financial Advisory at Deloitte

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