Cyber Forensics and Legal Considerations: Is the Law Keeping Up?

Introduction

Because of the digital age and the possibilities it has introduced, digital forensics is now a necessity within the realm of law enforcement. However, there are numerous considerations to be made within this realm: constitutional law, property law, contract law, tort law, cybercrime, criminal procedure, evidence law, and cyber war. This paper examines how the law is only barely keeping up with advancing technology in the realm of cyber forensics. Specifically, it examines the role of cyber forensics today, the role of cyberspace in today's digital world, and where legislation and the legal system fail to keep up with the needs of people and businesses. The paper focuses on what amendments have been made to the Constitution, what bills have been passed in relation to cyber security and cyber forensics, and what new trends in cybercrime are emerging. It also addresses the reality of cyber war and what it means for the field of cyber forensics, and how today's laws fail to keep pace with the ever-mounting pressures and incidences of cyber warfare.

The Role of Cyber Forensics

Cyber forensics is defined as the "branch of computer science that focuses on developing evidence pertained in the digital world for use in civil or criminal court proceedings" (Marangos, Rizomiliotis & Mitrou, 2012, p. 775). In the digital era, it is a highly needed field. Digital crime is one of the most common forms of crime committed today: people have their identities stolen, their accounts hacked, their digital assets frozen, their computer hardware held ransom, and more—all because digital criminals are able to use cyber tactics to infiltrate systems (Gogolin, 2010). As a result, cyber forensics is a much-needed field to help law enforcement officers understand the digital footprints left behind by cyber criminals.

Cyber forensics is one of the most in-demand fields within the IT industry as more and more of modern society merges with the digital world, and as security breaches continue to demonstrate the need for digital tools that can help investigators understand the scene of the crime. Recovering deleted files and passwords and checking for security breaches in cybercrime cases are just some of the methods employed by those working in cyber forensics. The evidence collected in this field plays a significant role in criminal justice: "once the evidence is collected it must be contained and translated for lawyers, judges, and juries to examine." The critical question many ask today concerns the extent to which legislation has kept up with the advances made in digital technology.

Cyber Space, Cyber Forensics, and the Constitution

According to Andres (2015), "the fundamental constitutional dilemma associated with cyber conflict is that it occurs almost entirely within privately owned computers and networks" (p. 156). To protect private space and intellectual property (IP), the U.S. government enacted legislation such as the Stop Online Piracy Act and the Protect IP Act, both of which obliged content providers to police themselves and monitor content flow. Companies were also required to monitor activity going into homes. This type of surveillance was met with protest by individual users, and Congress responded by passing the Cyber Intelligence Sharing and Protection Act. Senator McCain introduced the SECURE IT Act in 2012, which "rather than increasing government regulation, attempted to remove legal barriers that prevented government and industry from sharing information" (Andres, 2015, p. 159). However, civil rights advocates and business advocates alike opposed the bill, and it died before being enacted. Since then, Congress has had a difficult time legislating in a way that satisfies those who want privacy on the Web and those who want greater regulation. The field of cyber forensics is thus caught in a kind of limbo while Congress determines how to proceed.

The legal issues that arise in relation to cyber forensics are diverse. Within constitutional law, there are concerns about privacy, search and seizure, and the First Amendment. In cybercrime, the Computer Fraud and Abuse Act is directly relevant. In criminal procedure, the Fourth, Fifth, and Sixth Amendments apply alongside the Electronic Communications Privacy Act. Property law raises concerns about trade secrets and copyright infringement. Contract law involves issues of identity management and agency law. Tort law encompasses a range of issues—from privacy invasion to negligence, downstream liability, defamation, and Supervisory Control and Data Acquisition. Evidence law raises questions about accurate representation, hearsay, ephemeral systems, and the use of best evidence (Nance & Ryan, 2011).

Nance and Ryan (2011) note in particular that "while the U.S. Constitution provides the foundation for our legal system, the evolution of the Information Age has presented new challenges for interpretation of the Constitution" (p. 3). With respect to the First Amendment alone, cyber forensics has run into a veritable minefield of issues that current legislation does not know how to address. The framers of the Constitution never envisioned a virtual world that would be every bit as rough and tumble as the old Wild West—only in cyberspace. As a result, "content-neutral and content-specific regulations, cyberstalking, cyberbullying, and countering hate speech" are now issues that cyber forensics must address, while "pornography and child pornography, spam, and government censorship have provided the courts with a steady stream of cases involving digital and multimedia evidence, and are likely to continue to do so" (Nance & Ryan, 2011, p. 3). This is just one example of how legislation is struggling to come to terms with cyber forensics in the digital age.

Conclusion

The digital age is rapidly changing the way the world works, which is problematic for laws that were enacted to govern the world of yesterday. Today's laws must be updated to address the needs and concerns of people in cyberspace. Businesses, personal data, privacy, and individual information are all at risk. Legislation needs to catch up to where the digital age has taken cyber forensics.

The field of cyber forensics is dedicated to developing evidence that can be used in a court of law or in cases of dispute resolution. However, because so many questions remain unanswered about what is allowed, permissible, and advisable, the field of cyber forensics largely operates under a cloud of uncertainty. What one person or entity considers acceptable may be viewed as wholly unacceptable by others. What role, therefore, can a cyber forensics investigator reasonably be expected to play in such an environment? The digital world has already altered so many aspects of modern life—and much more change is likely to come. Legislation must therefore reflect the legal questions that have already arisen and anticipate those that are still emerging.