Re: Court Admissible Evidence

From: Duncan Kinder (dckinderat_private)
Date: Tue Apr 17 2001 - 23:27:51 PDT

  • Next message: Jeimy Jose Cano Martinez: "Computer Forensic References"

    If I understand you question correctly, then the following quote from
    "Computer Records and the Federal Rules of Evidence" by Orin S. Kerr is
    responsive:
    http://www.cybercrime.gov/usamarch2001_4.htm
    
    (to the effect :   "Absent specific evidence of tampering, allegations that
    computer records have been altered go to their weight, not their
    admissibility")
    
    
    <quote>
    1. Authenticity and the Alteration of Computer Records
    
    Computer records can be altered easily, and opposing parties often allege
    that computer records lack authenticity because they have been tampered with
    or changed after they were created. For example, in United States v.
    Whitaker, 127 F.3d 595, 602 (7th Cir. 1997), the government retrieved
    computer files from the computer of a narcotics dealer named Frost. The
    files from Frost's computer included detailed records of narcotics sales by
    three aliases: "Me" (Frost himself, presumably), "Gator" (the nickname of
    Frost's co-defendant Whitaker), and "Cruz" (the nickname of another dealer).
    After the government permitted Frost to help retrieve the evidence from his
    computer and declined to establish a formal chain of custody for the
    computer at trial, Whitaker argued that the files implicating him through
    his alias were not properly authenticated. Whitaker argued that "with a few
    rapid keystrokes, Frost could have easily added Whitaker's alias, 'Gator' to
    the printouts in order to finger Whitaker and to appear more helpful to the
    government." Id. at 602.
    
    The courts have responded with considerable skepticism to such unsupported
    claims that computer records have been altered. Absent specific evidence
    that tampering occurred, the mere possibility of tampering does not affect
    the authenticity of a computer record. See Whitaker, 127 F.3d at 602
    (declining to disturb trial judge's ruling that computer records were
    admissible because allegation of tampering was "almost wild-eyed speculation
    . . . [without] evidence to support such a scenario"); United States v.
    Bonallo, 858 F.2d 1427, 1436 (9th Cir. 1988) ("The fact that it is possible
    to alter data contained in a computer is plainly insufficient to establish
    untrustworthiness."); United States v. Glasser, 773 F.2d 1553, 1559 (11th
    Cir. 1985) ("The existence of an air-tight security system [to prevent
    tampering] is not, however, a prerequisite to the admissibility of computer
    printouts. If such a prerequisite did exist, it would become virtually
    impossible to admit computer-generated records; the party opposing admission
    would have to show only that a better security system was feasible."). Id.
    at 559. This is consistent with the rule used to establish the authenticity
    of other evidence such as narcotics. See United States v. Allen, 106 F.3d
    695, 700 (6th Cir. 1997) ("Merely raising the possibility of tampering is
    insufficient to render evidence inadmissible."). Absent specific evidence of
    tampering, allegations that computer records have been altered go to their
    weight, not their admissibility. See Bonallo, 858 F.2d at 1436.
    
    </quote>
    
    
    
    Duncan C. Kinder,  JD, CCNA
    dckinderat_private
    
    
    
    
    
    ----- Original Message -----
    From: "Hall, Andrew" <andrew.hallat_private>
    To: <FORENSICSat_private>
    Sent: Sunday, April 08, 2001 7:23 PM
    Subject: Court Admissible Evidence
    
    
    > Was wondering what other people are doing out there regarding the
    validation
    > of archived log entries.
    >
    > Given a situation where there is a remote box logging traffic, which then
    > has these logs pulled back to a central location where the logs are
    > permanently stored on CD-R, the challenge is to be able at a later date to
    > prove that the CD you have in your hand was the CD burnt back at that day
    in
    > question, and that individual log files are unaltered copies of the
    original
    > data.
    >
    > You can possibly prove the first challenge by generating a checksum of the
    > entire CD image, and printing this checksum to a continuous line printer
    > feed, as well as storing this on the CD.
    >
    > However, the ability to validate each individual sensor files is more of a
    > challenge.  ie you can checksum the file before the central location pulls
    > the file, and then checksum it again to compare ... but how do you
    > permanently store the original checksum? It is probably not feasible to
    have
    > another line printer on every remote box.
    >
    > Suggestions?  Has anyone had a similar situation to prove in court?
    >
    



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