Increasingly, Internet’s Data Trail Leads to Court

An article by SAUL HANSELL about the use of electronic evidence in court has been published in the New York Times today. The author writes, “just as technology is prompting Internet companies to collect more information and keep it longer than before, prosecutors and civil lawyers are more readily using that information”.

“When it comes to e-mail and Internet service records, “the average citizen would be shocked to find out how adept your average law enforcement officer is at finding information,” said Paul Ohm, who recently left the Justice Department’s computer crime and intellectual property section.”

The Justice Department has recently sent a request to four major Internet companies for data about their users’ search queries. “That case does not involve information that can be linked to individuals, but it has cast new light on what privacy, if any, Internet users can expect for the data trail they leave online.”

The answer, in many cases, is clouded by ambiguities in the law that governs electronic communication. In many cases, the law requires law enforcement officials to meet a higher standard to read a person’s e-mail than to get copies of his financial or medical records.

The 1996 Electronic Communications Privacy Act provides varying degrees of protection for online information. It generally requires a court order for investigators to read e-mail, “although the law is inconsistent on this”, treating unopened items differently from those previously read.

Similarly to Internet data, electronic evidence stored on personal computers is also widely used in litigation. According to Randall S. Udelman’s article, “attorneys will increasingly need to focus their attention on electronic documents, memos and e-mail as a source of evidence to support their clients’ claims”.

Digital evidence, if cost-effective and appropriate to obtain, may shed light on several important issues in litigation. For example, “electronic mail can possibly shed light on what company employees knew and did not know and whether a company made a decision to release a faulty product knowing its dangers.”

Besides, “Should a company or a prospective defendant destroy evidence after receiving notice of a possible lawsuit, it faces separate penalties”.

As the document storage techniques change in product liability litigation, attorneys seeking information will likely adapt as well in the appropriate circmstances. For instance, specific software solutions may be used to search the personal computer or corporate network for protected files that may be used in litigation.

This blog is run by the authors of FindProtected.
FindProtected is a security program that allows you to search your network for password protected and evidential files. With FindProtected, electronic evidence discovery is way much easier.

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