X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
In the Duke University lacrosse team drama, lawyers began trying the evidence in the media the moment it surfaced. The allegation that players had raped a local woman at a party was quickly followed by headlines about incriminating e-mail, digital photos and a DNA test. The chattering class revved up to hash out all the angles-on TV, talk radio and blogs-but much of the debate, especially among attorneys, betrayed startling ignorance about the nature of digital information and its vulnerabilities as evidence. As we have seen in so many recent high-profile cases, questions of guilt or liability appear to depend heavily upon evidence rooted in digital technology. The Duke lacrosse team investigation illustrates just how critical the authenticity of electronic information is to our legal system-and how far the legal profession has to go in educating itself about the issue. On April 11, on Rita Cosby’s MSNBC program Live & Direct, two attorneys debated the rape allegation against the players. One of the lawyers argued that the “timestamps” on the digital photos and an incriminating e-mail, including their associated metadata, proved that the alleged victim had been physically harmed before she had arrived at the team’s party, and that a rape could not have possibly occurred there. That assertion is speculative. In this day and age, no attorney (or citizen) should presume the integrity of digital evidence-in criminal investigations, civil suits or any legal dispute. In the world of printed material, in which our legal culture is still most comfortable, it is difficult to alter documents or images, and forged documents are easily detected. The controversy over the 60 Minutes election-year report on the president’s military service, in which forged paper records that CBS had relied on in its story were spotted by bloggers, illustrated this dynamic perfectly. Digital manipulation is easy On the other hand, in the digital world, the situation is reversed: Manipulation is easily executed and difficult to prove or disprove. In a matter of seconds, binary code sequences can be altered or deleted, intentionally or unintentionally, and thus rendered entirely unreliable. The next time you power on your computer, look at the bottom right corner of your screen and click on the time readout. Using your mouse, change the time and then click “Apply.” In a matter of seconds, you have just altered your computer’s date and time display and recording. Manipulating the date and time of a digital file can suggest that an event occurred earlier or later than it actually did. By the same token, the integrity of a document stamped with a date and time that is accurate but not certified would be vulnerable to impeachment at trial. The aforementioned lawyer speaking about the timestamps connected to the digital photos and e-mail in the Duke inquiry failed to mention that those timestamps, as well as the associated metadata, could have been inaccurate and/or altered before the photos and e-mails were handed to authorities. The mere possibility of tampering and inaccuracies renders all the evidence impeachable. Those involved in the Duke lacrosse affair share this problem with much of corporate America and its multitude of lawyers. Just about every great corporate meltdown of the past five years has contained a tale or two about document mismanagement, tampering, forgery or destruction. The anecdotes have shed much-needed light on an open secret long known to those in the information technology field: The integrity of all electronic documentation is remarkably easy to corrupt, intentionally or unintentionally, without notice. There are solutions to this legal dilemma. There are various services, policies and products that can protect parties from unwanted records manipulation and certify the authenticity of electronic information. Technologies such as third-party trusted timestamps are able to prove that an electronic record existed at a specific point in time and has not been altered since. Without a records management system in place by which digital data may be authenticated, it is very difficult for litigants or disputing parties to prove the integrity of timestamps and associated metadata. We live in a new era of evidence discovery. Those facing the possibility of litigation-in which reputations are lost and penalties are awarded-should rely on sophisticated and available tools to test the authenticity and accuracy of electronic evidence and improve their records management. Tom Klaff is chief executive officer of Herndon, Va.-based Surety Inc., a security software and services company. He can be reached at [email protected]. Bill McComas is a technology law partner at Washington- and Baltimore-based Shapiro Sher Guinot & Sandler. He can be reached at [email protected].

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.