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System Forensics, Investigation, and Response

ISSA INFORMATION SYSTEMS SECURITY & ASSURANCE SERIES

THIRD EDITION

Chuck Easttom

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Contents Preface

About the Author

PART I Introduction to Forensics

CHAPTER 1 Introduction to Forensics What Is Computer Forensics?

Using Scientific Knowledge

Collecting

Analyzing

Presenting

Understanding the Field of Digital Forensics

What Is Digital Evidence?

Scope-Related Challenges to System

Forensics

Types of Digital System Forensics

Analysis

General Guidelines

Knowledge Needed for Computer Forensics Analysis

Hardware

Software

Networks

Addresses

Obscured Information and Anti-Forensics

The Daubert Standard

U.S. Laws Affecting Digital Forensics

The Federal Privacy Act of 1974

The Privacy Protection Act of 1980

The Communications Assistance for Law

Enforcement Act of 1994

The Electronic Communications Privacy

Act of 1986

The Computer Security Act of 1987

The Foreign Intelligence Surveillance Act

of 1978

The Child Protection and Sexual Predator

Punishment Act of 1998

The Children’s Online Privacy Protection

Act of 1998

The Communications Decency Act of 1996

The Telecommunications Act of 1996

The Wireless Communications and Public

Safety Act of 1999

The USA Patriot Act of 2001

The Sarbanes-Oxley Act of 2002

18 U.S.C. § 1030: Fraud and Related

Activity in Connection with Computers

18 U.S.C. § 1020: Fraud and Related

Activity in Connection with Access Devices

The Digital Millennium Copyright Act

(DMCA) of 1998

18 U.S.C. § 1028A: Identity Theft and

Aggravated Identity Theft

18 U.S.C. § 2251: Sexual Exploitation of

Children

Warrants

Federal Guidelines

The FBI

The Secret Service

The Regional Computer Forensics

Laboratory Program

CHAPTER SUMMARY

KEY CONCEPTS AND TERMS

CHAPTER 1 ASSESSMENT

CHAPTER 2 Overview of Computer Crime

How Computer Crime Affects Forensics

Identity Theft

Phishing

Spyware

Discarded Information

How Does This Crime Affect Forensics?

Hacking

SQL Injection

Cross-Site Scripting

Ophcrack

Tricking Tech Support

Hacking in General

Cyberstalking and Harassment

Real Cyberstalking Cases

Fraud

Investment Offers

Data Piracy

Non-Access Computer Crimes

Denial of Service

Viruses

Logic Bombs

Cyberterrorism

How Does This Crime Affect Forensics?

CHAPTER SUMMARY

KEY CONCEPTS AND TERMS

CHAPTER 2 ASSESSMENT

CHAPTER 3 Forensic Methods and Labs

Forensic Methodologies

Handle Original Data as Little as Possible

Comply with the Rules of Evidence

Avoid Exceeding Your Knowledge

Create an Analysis Plan

Technical Information Collection

Considerations

Formal Forensic Approaches

Department of Defense Forensic

Standards

The Digital Forensic Research Workshop

Framework

The Scientific Working Group on Digital

Evidence Framework

An Event-Based Digital Forensics

Investigation Framework

Documentation of Methodologies and Findings

Disk Structure

File Slack Searching

Evidence-Handling Tasks

Evidence-Gathering Measures

Expert Reports

How to Set Up a Forensic Lab

Equipment

Security

American Society of Crime Laboratory

Directors

Common Forensic Software Programs

EnCase

Forensic Toolkit

OSForensics

Helix

Kali Linux

AnaDisk Disk Analysis Tool

CopyQM Plus Disk Duplication Software

The Sleuth Kit

Disk Investigator

Forensic Certifications

EnCase Certified Examiner Certification

AccessData Certified Examiner

OSForensics

Certified Cyber Forensics Professional

EC Council Computer Hacking Forensic

Investigator

High Tech Crime Network Certifications

Global Information Assurance Certification

Certifications

CHAPTER SUMMARY

KEY CONCEPTS AND TERMS

CHAPTER 3 ASSESSMENT

PART II Technical Overview: System Forensics Tools, Techniques, and Methods

CHAPTER 4 Collecting, Seizing, and Protecting Evidence Proper Procedure

Shutting Down the Computer

Transporting the Computer System to a

Secure Location

Preparing the System

Documenting the Hardware Configuration

of the System

Mathematically Authenticating Data on All

Storage Devices

Handling Evidence

Collecting Data

Documenting Filenames, Dates, and Times

Identifying File, Program, and Storage

Anomalies

Evidence-Gathering Measures

Storage Formats

Magnetic Media

Solid-State Drives

Digital Audio Tape Drives

Digital Linear Tape and Super DLT

Optical Media

Using USB Drives

File Formats

Forensic Imaging

Imaging with EnCase

Imaging with the Forensic Toolkit

Imaging with OSForensics

RAID Acquisitions

CHAPTER SUMMARY

KEY CONCEPTS AND TERMS

CHAPTER 4 ASSESSMENT

CHAPTER LAB

CHAPTER 5 Understanding Techniques for Hiding and Scrambling Information Steganography

Historical Steganography

Steganophony

Video Steganography

More Advanced Steganography

Steganalysis

Invisible Secrets

MP3Stego

Additional Resources

Encryption

The History of Encryption

Modern Cryptography

Breaking Encryption

CHAPTER SUMMARY

KEY CONCEPTS AND TERMS

CHAPTER 5 ASSESSMENT

CHAPTER 6 Recovering Data Undeleting Data

File Systems and Hard Drives

Windows

Forensically Scrubbing a File or Folder

Linux

Macintosh

Recovering Information from Damaged Media

Physical Damage Recovery Techniques

Recovering Data After Logical Damage

File Carving

CHAPTER SUMMARY

KEY CONCEPTS AND TERMS

CHAPTER 6 ASSESSMENT

CHAPTER 7 Email Forensics

How Email Works

Email Protocols

Faking Email

Email Headers

Getting Headers in Outlook

Getting Headers from Yahoo! Email

Getting Headers from Gmail

Other Email Clients

Email Files

Paraben’s Email Examiner

ReadPST

Tracing Email

Email Server Forensics

Email and the Law

The Fourth Amendment to the U.S.

Constitution

The Electronic Communications Privacy

Act

The CAN-SPAM Act

18 U.S.C. 2252B

The Communication Assistance to Law

Enforcement Act

The Foreign Intelligence Surveillance Act

The USA Patriot Act

CHAPTER SUMMARY

KEY CONCEPTS AND TERMS

CHAPTER 7 ASSESSMENT

CHAPTER 8 Windows Forensics

Windows Details

Windows History

64-Bit

The Boot Process

Important Files

Volatile Data

Tools

Windows Swap File

Windows Logs

Windows Directories

UserAssist

Unallocated/Slack Space

Alternate Data Streams

Index.dat

Windows Files and Permissions

MAC

The Registry

USB Information

Wireless Networks

Tracking Word Documents in the Registry

Malware in the Registry

Uninstalled Software

Passwords

ShellBag

Prefetch

Volume Shadow Copy

Memory Forensics

Volatility

CHAPTER SUMMARY

KEY CONCEPTS AND TERMS

CHAPTER 8 ASSESSMENT

CHAPTER 9 Linux Forensics

Linux and Forensics

Linux Basics

Linux History

Linux Shells

Graphical User Interface

K Desktop Environment (KDE)/Plasma

Linux Boot Process

Logical Volume Manager

Linux Distributions

Linux File Systems

Ext

The Reiser File System

The Berkeley Fast File System

Linux Logs

The /var/log/faillog Log

The /var/log/kern.log Log

The /var/log/lpr.log Log

The /var/log/mail.* Log

The /var/log/mysql.* Log

The /var/log/apache2/* Log

The /var/log/lighttpd/* Log

The /var/log/apport.log Log

Other Logs

Viewing Logs

Linux Directories

The /root Directory

The /bin Directory

The /sbin Directory

The /etc Folder

The /etc/inittab File

The /dev Directory

The /mnt Directory

The /boot Directory

The /usr Directory

The /var Directory

The /var/spool Directory

The /proc Directory

Shell Commands for Forensics

The Command

The Command

The Command

The Command

The Command

The Command

The Command

The Command

The Command

The Command

The Command

The Command

The Command

The Command

The Command

The Command

Can You Undelete in Linux?

Manual Method

Kali Linux Forensics

Forensics Tools for Linux

CHAPTER SUMMARY

KEY CONCEPTS AND TERMS

CHAPTER 9 ASSESSMENT

CHAPTER 10 Macintosh Forensics

Mac Basics

Mac History

Mac File Systems

Partition Types

Macintosh Logs

The /var/log Log

The /var/spool/cups Folder

The /Library/Receipts Folder

The /Users//.bash_history Log

The /var/vm Folder

The /Users/ Directory

The /Users//Library/Preferences/

Folder

Directories

The /Volumes Directory

The /Users Directory

The /Applications Directory

The /Network Directory

The /etc Directory

The

/Library/Preferences/SystemConfiguration/dom.apple.preferences.plist

File

Macintosh Forensic Techniques

Target Disk Mode

Searching Virtual Memory

Shell Commands

How to Examine a Mac

Can You Undelete in Mac?

CHAPTER SUMMARY

KEY CONCEPTS AND TERMS

CHAPTER 10 ASSESSMENT

CHAPTER 11 Mobile Forensics

Cellular Device Concepts

Terms

Operating Systems

The BlackBerry

What Evidence You Can Get from a Cell Phone

Types of Investigations

Phone states

Seizing Evidence from a Mobile Device

The iPhone

BlackBerry

JTAG

CHAPTER SUMMARY

KEY CONCEPTS AND TERMS

CHAPTER 11 ASSESSMENT

CHAPTER 12 Performing Network Analysis Network Packet Analysis

Network Packets

Network Attacks

Network Traffic Analysis Tools

Network Traffic Analysis

Using Log Files as Evidence

Wireless

Router Forensics

Router Basics

Types of Router Attacks

Getting Evidence from the Router

Firewall Forensics

Firewall Basics

Collecting Data

CHAPTER SUMMARY

KEY CONCEPTS AND TERMS

CHAPTER 12 ASSESSMENT

PART III Incident Response and Resources

CHAPTER 13 Incident and Intrusion Response Disaster Recovery

Incident Response Plan

Incident Response

Preserving Evidence

Adding Forensics to Incident Response

Forensic Resources

Forensics and Policy

CHAPTER SUMMARY

KEY CONCEPTS AND TERMS

CHAPTER 13 ASSESSMENT

CHAPTER 14 Trends and Future Directions Technical Trends

What Impact Does This Have on

Forensics?

Software as a Service

The Cloud

What Impact Does Cloud Computing Have

on Forensics?

Legal and Procedural Trends

Changes in the Law

The USA Patriot Act

Private Labs

International Issues

Techniques

CHAPTER SUMMARY

KEY CONCEPTS AND TERMS

CHAPTER 14 ASSESSMENT

CHAPTER 15 System Forensics Resources

Tools to Use

ASR Data Acquisition & Analysis

AccessData Forensic Toolkit

OSForensics

ComputerCOP

Digital Detective

Digital Intelligence

Disk Investigator

EnCase

X-Ways Software Technology AG

Other Tools

Resources

International Association of Computer

Investigative Specialists

EnCase Certified Examiner Certification

AccessData Certified Examiner

Certified Hacking Forensic Investigator

Certified Cyber Forensics Professional

SANS Institute

American Academy of Forensic Sciences

Websites

Journals

Conferences

Laws

The USA Patriot Act

The Electronic Communications Privacy

Act of 1986

The Communications Assistance to Law

Enforcement Act of 1996

The Health Insurance Portability and

Accountability Act of 1996

CHAPTER SUMMARY

KEY CONCEPTS AND TERMS

CHAPTER 15 ASSESSMENT

APPENDIX A Answer Key

APPENDIX B Standard Acronyms

Glossary of Key Terms

References

Index

Preface Purpose of This Book This book is part of the Information Systems Security & Assurance Series from Jones & Bartlett Learning (www.jblearning.com). Designed for courses and curriculums in IT Security, Cybersecurity, Information Assurance, and Information Systems Security, this series features a comprehensive, consistent treatment of the most current thinking and trends in this critical subject area. These titles deliver fundamental information security principles packed with real-world applications and examples. Authored by Certified Information Systems Security Professionals, they deliver comprehensive information on all aspects of information security. Reviewed word-for-word by leading technical experts in the field, these books are not just current, but forward-thinking—putting you in the position to solve the cybersecurity challenges not just of today, but of tomorrow as well.

Computer crimes call for forensics specialists— people who know how to find and follow the

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evidence. But even aside from criminal investigations, incident response requires forensic skills. This book begins by examining the fundamentals of system forensics: what forensics is, an overview of computer crime, the challenges of system forensics, and forensics methods and labs. The second part of this book addresses the tools, techniques, and methods used to perform computer forensics and investigation. These include collecting evidence, investigating information hiding, recovering data, and scrutinizing email. It also discusses how to perform forensics in the Windows, Linux, and Macintosh operating systems; on mobile devices; and on networks. Finally, the third part explores incident and intrusion response, emerging technologies and future directions of this field, and additional system forensics resources.

Learning Features The writing style of this book is practical and conversational. Each chapter begins with a statement of learning objectives. Step-by-step examples of information security concepts and procedures are presented throughout the text. Illustrations are used both to clarify the material and to vary the presentation. The text is sprinkled with Notes, Tips, FYIs, Warnings, and sidebars to alert the reader to additional helpful information related to the subject under discussion. Chapter assessments appear at the end of each chapter, with solutions provided in the back of the book.

Chapter summaries are included in the text to provide a rapid review or preview of the material and to help students understand the relative importance of the concepts presented.

Audience The material is suitable for undergraduate or graduate computer science majors or information science majors, students at a 2-year technical college or community college who have a basic technical background, or readers who have a basic understanding of IT security and want to expand their knowledge.

This book is dedicated to all the forensic analysts who work diligently to extract the evidence necessary to find the truth in criminal and civil cases.

About the Author Chuck Easttom is an internationally renowned computer security expert and trainer. He has been in the IT industry for more than 25 years and has been training for more than 15. He routinely conducts computer security and forensics training for civilian companies, law enforcement, government agencies, and friendly foreign governments. He holds more than 40 industry certifications, including several forensics certifications such as: Certified Cyber Forensics Professional (CCFP), Certified Hacking Forensic Investigator (CHFI), Certified Criminal Investigator (CCI), Access Certified Examiner (ACE), Oxygen Certified Examiner, Certified Forensic Consultant (CFC), and others. He has served as an expert witness in U.S. court cases since 2004, and has extensive courtroom experience. He also has extensive hands-on experience conducting forensic examinations as part of both criminal investigations and incident response.

Chuck created the OSForensics certification (OSFCE) course and test. He is an associate member of the American Academy of Forensics. Chuck is a frequent speaker at universities and conferences. He has been a speaker at Columbia University’s ACM Chapter, Harvard Computer Society, (ISC) Security Congress, SecureWorld, Hakon India, Hakon Africa, Defcon, Enfuse, IAFLS, AAFS, ADFSL, and many other conferences. You can visit the author’s website at www.chuckeasttom.com.

2

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PART I: Introduction to Forensics

CHAPTER 1 Introduction to Forensics

CHAPTER 2 Overview of Computer Crime

CHAPTER 3 Forensic Methods and Labs

T CHAPTER 1: Introduction to Forensics

HIS CHAPTER INTRODUCES YOU TO THE FIELD of computer forensics. That means it will cover some legal issues, the basic

concepts of the forensic process, and a review of the basic computer and networking knowledge you will need.

Chapter 1 Topics This chapter covers the following topics and concepts:

What computer forensics is

What you need to know about the field of digital forensics

What you need to know for computer forensics analysis

What the Daubert standard is

What the relevant laws are

What the federal guidelines are

Chapter 1 Goals When you complete this chapter, you will be able to:

Understand the basic concepts of forensics

Maintain the chain of custody

Understand basic hardware and networking knowledge needed for forensics

Know the basic laws related to computer forensics

What Is Computer Forensics? Before you can answer the question, “What is computer forensics?” you should address the question, “What is forensics?” The American Heritage Dictionary defines forensics as “the use of science and technology to investigate and establish facts in criminal or civil courts of law.”

Essentially, forensics is the use of science to process evidence so you can establish the facts of a case. The individual case being examined could be criminal or civil, but the process is the same. The evidence has to be examined and processed in a consistent scientific manner. This is to ensure that the evidence is not accidentally altered and that appropriate conclusions are derived from that evidence.

You have probably seen some crime drama wherein forensic techniques were a part of the investigative process. In such dramas, a bullet is found and forensics is used to determine the gun that fired the bullet. Or, perhaps a drop of blood is found and forensics is used to match the DNA to a suspect. These are all valid aspects of forensics. However, our modern world is full of electronic devices with the capacity to store data. The extraction of that data in a consistent scientific manner is the subject of computer forensics.

The Computer Emergency Response Team (CERT) defines computer forensics in this manner:

Forensics is the process of using scientific knowledge for collecting, analyzing, and presenting evidence to the courts.… Forensics deals primarily with the recovery and analysis of latent evidence. Latent evidence can take many forms, from fingerprints left on a window to DNA evidence recovered from blood stains to the files on a hard drive.

According to the website Computer Forensics World:

Generally, computer forensics is considered to be the use of analytical and investigative techniques to identify, collect, examine and preserve evidence/information which is magnetically stored or encoded.

The objective in computer forensics is to recover, analyze, and present computer-based material in such a way that it can be used as evidence in a court of law. In computer forensics, as in any other branch of forensic science, the emphasis must be on the integrity and security of evidence. A forensic specialist must adhere to stringent guidelines and avoid taking shortcuts.

Any device that can store data is potentially the subject of computer forensics. Obviously, that includes devices such as network servers, personal computers, and laptops.

It must be noted that computer forensics has expanded. The topic now includes cell phone forensics, router forensics, global positioning system

(GPS) device forensics, tablet forensics, and forensics of many other devices. The term digital forensics is a more encompassing term that includes all of these devices. Regardless of the term you use, the goal is the same: to apply solid scientific methodologies to a device in order to extract evidence for use in a court proceeding.

Although the subject of computer forensics, as well as the tools and techniques used, is significantly different from traditional forensics—like DNA analysis and bullet examination—the goal is the same: to obtain evidence that can be used in some legal proceeding. Computer forensics applies to all the domains of a typical IT infrastructure, from the User Domain and Remote Access Domain to the Wide Area Network (WAN) Domain and Internet Domain (see FIGURE 1-1).

FIGURE 1-1 The seven domains of a typical IT infrastructure.

Consider some elements of the preceding definitions. In particular, let’s look at this sentence: “Forensics is the process of using scientific knowledge for collecting, analyzing, and presenting evidence to the courts.” Each portion of this is critical, and the following sections of this chapter examine each one individually.

Using Scientific Knowledge

First and foremost, computer forensics is a science. This is not a process based on your “gut feelings” or personal whim. It is important to understand and apply scientific methods and processes. It is also important that you have knowledge of the relevant scientific disciplines. That also means you must have scientific knowledge of the field. Computer forensics begins with a thorough understanding of computer hardware. Then you need to understand the operating system running on that device; even smartphones and routers have operating systems. You must also understand at least the basics of computer networks.

If you attempt to master forensics without this basic knowledge, you are not likely to be successful. Now if you find yourself starting in on a course and are not sure if you have the requisite knowledge, don’t panic. First, you simply need a basic knowledge of computers and computer networks. If you have taken a couple of basic computer courses at a college or perhaps the CompTIA A+ certification, you have the baseline knowledge. Also, you will get a review of some basic concepts in this chapter.

However, the more you know about computers and networks, the better you will be at computer forensics. There is no such thing as “knowing too much.” Even though some technical details change quickly, such as the capacity and materials of hard disks, other details change very slowly, if at all, such as the various file systems, the role of volatile and nonvolatile memory, and the fact that criminals take

advantage of the advancements in computer and digital technology to improve their lives as much as the businessman, student, or homeowner. A great deal of information is stored in computers. Keep learning what is there, where it is stored, and how that information may be used by computer user and computer criminal alike.

Collecting Before you can do any forensic analysis or examination, you have to collect the evidence. There are very specific procedures for properly collecting evidence. You will be introduced to some general guidelines later in this chapter. The important thing to realize for now is that how you collect the evidence determines if that evidence is admissible in a court.

Analyzing This is one of the most time-consuming parts of a forensic investigation, and it can be the most challenging. Once you have collected the data, what does it mean? The real difference between a mediocre investigator and a star investigator is the analysis. The data is there, but do you know what it means? This is also related to your level of scientific knowledge. If you don’t know enough, you may not see the significance of the data you have.

You also have to be able to solve puzzles. That is, in essence, what any forensic investigation is. It is solving a complex puzzle—putting together the data you have and finding out what sort of picture is

revealed. You might try to approach a forensic investigation like Sherlock Holmes. Look at every detail. What does it mean? Before you jump to a conclusion, how much evidence do you have to support that conclusion? Are there alternatives and, in fact, better explanations for the data?

Presenting Once you have finished your investigation, done your analysis, and obeyed all the rules and guidelines, you still have one more step. You will have to present that evidence in one form or another. The two most basic forms are the expert report and expert testimony. In either case, it will be your job to interpret the arcane and seemingly impenetrable technical information using plain English that paints an accurate picture for the court. You must not use jargon and technobabble. Your clear use of language, and potentially graphics and demonstrations, if needed, may be the difference between a big win and a lost case. So you should take a quick look at each of these.

WARNING

Court procedures vary from jurisdiction to jurisdiction, but in most cases an expert cannot directly testify about anything not in his or her expert report. That is why it is critical to be thorough and to put into the

report anything you feel might be pertinent to the case. In your work as an expert witness, you will often find additional items in an investigation—items that are peripheral to the main case. If you put those in your report, however, you will be able to testify about them at trial.

The Expert Report An expert report is a formal document that lists what tests you conducted, what you found, and your conclusions. It also includes your curriculum vitae (CV), which is like a résumé, only much more thorough and specific to your work experience as a forensic investigator. Specific rules will vary from court to court, but as a general rule, if you don’t put it in your report, you cannot testify about it at trial. So you need to make very certain that your report is thorough. Put in every single test you used, every single thing you found, and your conclusions. Expert reports tend to be rather long.

It is also important to back up your conclusions. As a general rule, it’s good to have at least two to three references for every conclusion. In other words, in addition to your own opinion, you want to have a few reputable references that either agree with that conclusion or provide support for how you came to that conclusion. This way, it is not just your expert opinion, but it is supported by other reputable sources. Make sure you use reputable sources; for

example, CERT, the Federal Bureau of Investigation (FBI), the Secret Service, and the Cornell University Law School are all very reputable sources.

The reason for this is that in every legal case there are two sides. The opposing side will have an attorney and perhaps its own expert. The opposing attorney will want to pick apart every opinion and conclusion you have. If there is an opposing expert, he or she will be looking for alternative interpretations of the data or flaws in your method. You have to make sure you have fully supported your conclusions.

It should be noted that the length and level of detail found in reports varies. In many cases, criminal courts won’t require a formal expert report, but rather a statement from the attorney as to who you are and what topics you intend to testify about. You will need to produce a report of your forensic examination. In civil court, particularly in intellectual property cases, the expert report is far more lengthy and far more detailed. In my own experience, reports of 100, 200, or more pages are common. The largest I have seen yet was over 1500 pages long.

Although not all cases will involve a full, detailed expert report, many will, particularly intellectual property cases. There are few legal guidelines on expert report writing, but a few issues have become clear in my experience.

Expert reports generally start with the expert’s qualifications. This should be a complete curriculum

vitae detailing education, work history, and publications. Particular attention should be paid to elements of the expert’s history that are directly related to the case at hand. Then the report moves on to the actual topic at hand. An expert report is a very thorough document. It must first detail exactly what analysis was used. How did the expert conduct his or her examination and analysis? In the case of computer forensics, the expert report should detail what tools the expert used, what the results were, and the conditions of the tests conducted. Also, any claim an expert makes in a report should be supported by extrinsic reputable sources. This is sometimes overlooked by experts because they themselves are sources who are used, or because the claim being made seems obvious to them. For example, if an expert report needs to detail how domain name service (DNS) works in order to describe a DNS poisoning attack, then there should be references to recognized authoritative works regarding the details of domain name service. If they are not included, at trial a creative attorney can often extract nontraditional meanings from even commonly understood terms.

The next issue with an expert report is its completeness. The report must cover every item the expert wishes to opine on, and in detail. Nothing can be assumed. In some jurisdictions, if an item is not in the expert report, then the expert is not allowed to discuss it during testimony. Whether or not that is the case in your jurisdiction, it is imperative that the expert report you submit is very thorough and

complete. And of course, it must be error-free. Even the smallest error can give opposing counsel an opportunity to impugn the accuracy of the entire report and the expert’s entire testimony. This is a document that should be carefully proofread by the expert and by the attorney retaining the expert.

Expert Testimony As a forensic specialist, you will testify as an expert witness, that is, on the basis of scientific or technical knowledge you have that is relevant to a case, rather than on the basis of direct personal experience. Your testimony will be referred to as expert testimony, and there are two scenarios in which you give it: a deposition and a trial. A deposition—testimony taken from a witness or party to a case before a trial—is less formal, and is typically held in an attorney’s office. The other side’s lawyer gets to ask you questions. In fact, the lawyer can even ask some questions that would probably be disallowed by a trial judge. But do remember, this is still sworn testimony, and lying under oath is perjury, which is a felony.

U.S. Federal Rule 702, Testimony by Expert Witnesses, defines what an expert is and what expert testimony is:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

a. the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

b. the testimony is based on sufficient facts or data;

c. the testimony is the product of reliable principles and methods; and

d. the expert has reliably applied the principles and methods to the facts of the case.

This definition is very helpful. Regardless of your credentials, did you base your conclusions on sufficient facts and data? Did you apply reliable scientific principles and methods in forming your conclusions? These questions should guide your forensic work.

During a deposition, the opposing counsel has a few goals. The first goal is to find out as much as possible about your position, methods, conclusions, and even your side’s legal strategy. It is important to answer honestly but as briefly as possible. Don’t volunteer information unasked. That simply allows the other side to be better prepared for trial. The second thing a lawyer is looking for during a deposition is to get you to commit to a position you may not be able to defend later. So follow a few rules:

1

If you don’t fully understand the question, say so. Ask for clarification before you answer.

If you really don’t know, say so. Do not ever guess.

If you are not 100 percent certain of an answer, say so. Say “to the best of my current recollection” or something to that effect.

The other way you may testify is at trial. The first thing you absolutely must understand is that the first time you testify, you will be nervous. You’ll begin to wonder if you are properly prepared. Are your conclusions correct? Did you miss anything? Don’t worry; each time you do this, it gets easier. Next, remember that the opposing counsel, by definition, disagrees with you and wants to trip you up. It might be helpful to remind yourself, “The opposing counsel’s default position is that I am both incompetent and a liar.” Now that is a bit harsh, and probably an overstatement, but if you start from that premise you will be prepared for the opposing counsel’s questions. Don’t be too upset if he or she is trying to make you look bad. It is not personal.

The secret to deposition and trial testimony is simple: Be prepared. You should not only make certain your forensic process is done correctly and well documented, including liberal use of charts, diagrams, and other graphics, but also prepare before you testify. Go over your report and your notes again. Often, your attorney will prep you, particularly if you have never testified before. Try to look objectively at your own report to see if there is

anything the opposing counsel might use against you. Are there alternative ways to interpret the evidence? If so, why did you reject them?

The most important things on the stand are to keep calm and tell the truth. Obviously, any lie, even a very minor one that is not directly related to your investigation, would be devastating. But becoming agitated or angry on the stand can also undermine your credibility.

In addition to U.S. Federal Rule 702, there are several other U.S. Federal Rules related to expert witness testimony at trial. They are listed and very briefly described here:

Rule 703, Admissibility of Facts: An expert may base an opinion on facts or data that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

Rule 704, Opinion on Ultimate Issue: An opinion is not objectionable just because it embraces an ultimate issue. In other words, an expert witness can, in many cases, offer an opinion as to the ultimate issue in a case.

Rule 705, Disclosing Underlying Facts for Opinion: Unless the court orders otherwise, an expert may state an opinion—and give the reasons for it—without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross- examination. Essentially, the expert can state his or her opinion without first giving the underlying facts, but should expect to be questioned on those facts at some point.

Rule 706, Court-Appointed Expert: This rule covers the appointment of a neutral expert to advise the court. Such experts are not working for the plaintiff or the defendant, but rather for the court.

Rule 401, Relevance of Evidence: Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.

Understanding the Field of Digital Forensics

The field of digital forensics is changing very rapidly. First and foremost, standards are emerging. This means there are clearly defined ways of properly doing forensics. When computer forensics first began, most investigations were conducted according to the whim of the investigator rather than through a standardized methodology. But as the field has matured, it has also standardized. Today, there are clear, codified methods for conducting a forensic examination.

Another change is in who is doing forensics. At one time, all forensics, including computer forensics, was the exclusive domain of law enforcement. That is no longer the case. Today, the following entities are also involved in and actively using computer forensics:

The military: The military uses digital forensics to gather intelligence information from computers captured during military actions.

Government agencies: Government agencies use digital forensics to investigate crimes involving computers. These agencies include the FBI, U.S. Postal Inspection Service, Federal Trade Commission, U.S. Food and Drug Administration, and U.S. Secret Service. They also include the U.S. Department of Justice’s National Institute of Justice (NIJ), the National

Institute of Standards and Technology (NIST), the Office of Law Enforcement Standards (OLES), the Department of Homeland Security, and foreign government agencies, among others.