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Digital Archaeology

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Digital Archaeology Th e ArT A n d Sc i e n c e o f

di g i TA l fo r e n S i c S

Michael W. Graves

Upper Saddle River, NJ • Boston • Indianapolis • San Francisco

New York • Toronto • Montreal • London • Munich • Paris • Madrid

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Library of Congress Cataloging-in-Publication Data Graves, Michael W.

Digital archaeology : the art and science of digital forensics / Michael W. Graves, MSDIM.—First Edition. pages cm

Includes bibliographical references and index. ISBN 978-0-321-80390-0 (pbk. : alk. paper) 1. Computer crimes—Investigation. 2. Forensic sciences—Data processing. I.

Title. HV8079.C65G7293 2013 363.250285—dc23

2013020221 Copyright © 2014 Pearson Education, Inc.

All rights reserved. Printed in the United States of America. This publication is protected by copyright, and permission must be obtained from the publisher prior to any prohibited reproduction, storage in a retrieval system, or transmission in any form or by any means, electronic, mechanical, photocopying, recording, or likewise. To obtain permission to use material from this work, please submit a written request to Pearson Education, Inc., Permissions Department, One Lake Street, Upper Saddle River, New Jersey 07458, or you may fax your request to (201) 236-3290.

ISBN-13: 978-0-321-80390-0 ISBN-10: 0-321-80390-6 Text printed in the United States on recycled paper at Edwards Brothers Malloy in Ann Arbor, Michigan. First printing, August 2013

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I guess I’m just a regular guy after all. In spite of the fact that my daughter’s assignment to draw a picture of one of her parents consisted of a silhouette of my head against a computer monitor—despite the fact that I learned that my son got a blue ribbon in marksmanship by seeing the award hanging on the wall—even though my wife had to remind me twice of anniversaries and dozens of times about birthdays—my family always stuck with me. This book is for them.

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vii

co nTe nT S

Preface xiii

About the Author xxi

1 The Anatomy of a Digital Investigation 1 A Basic Model for Investigators 2

Understanding the Scope of the Investigation 8

Identifying the Stakeholders 12

The Art of Documentation 13

Chapter Review 21

Chapter Exercises 21

References 22

2 Laws Affecting Forensic Investigations 23 Constitutional Implications of Forensic Investigation 24

The Right to Privacy 29

The Expert Witness 31

Chapter Review 32

Chapter Exercises 32

References 33

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3 Search Warrants and Subpoenas 35 Distinguishing between Warrants and Subpoenas 36

What Is a Search and When Is It Legal? 37

Basic Elements of Obtaining a Warrant 40

The Plain View Doctrine 43

The Warrantless Search 44

Subpoenas 50

Chapter Review 51

Chapter Exercises 52

References 52

4 Legislated Privacy Concerns 55 General Privacy 56

Financial Legislation 59

Privacy in Health Care and Education 62

Privileged Information 64

Chapter Review 67

Chapter Exercises 68

References 68

5 The Admissibility of Evidence 71 What Makes Evidence Admissible? 71

Keeping Evidence Authentic 76

Defining the Scope of the Search 84

When the Constitution Doesn’t Apply 84

Chapter Review 89

Chapter Exercises 89

References 89

6 First Response and the Digital Investigator 91 Forensics and Computer Science 91

Controlling the Scene of the Crime 96

Handling Evidence 100

Chapter Review 109

Chapter Exercises 109

References 110

Contents

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7 Data Acquisition 111 Order of Volatility 112

Memory and Running Processes 112

Acquiring Media 121

Chapter Review 128

Chapter Exercises 128

References 129

8 Finding Lost Files 131 File Recovery 131

The Deleted File 141

Data Carving 145

Chapter Review 149

Chapter Exercises 150

References 150

9 Document Analysis 151 File Identification 151

Understanding Metadata 157

Mining the Temporary Files 172

Identifying Alternate Hiding Places of Data 176

Chapter Review 183

Chapter Exercises 183

References 183

10 E-mail Forensics 185 E-mail Technology 185

Information Stores 191

The Anatomy of an E-mail 196

An Approach to E-mail Analysis 203

Chapter Review 210

Chapter Exercises 211

References 211

Contents

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Contents

11 Web Forensics 213 Internet Addresses 213

Web Browsers 215

Web Servers 233

Proxy Servers 238

Chapter Review 244

Chapter Exercises 244

References 245

12 Searching the Network 247 An Eagle’s Eye View 247

Initial Response 248

Proactive Collection of Evidence 250

Post-Incident Collection of Evidence 262

Router and Switch Forensics 268

Chapter Review 275

Chapter Exercises 275

References 276

13 Excavating a Cloud 277 What Is Cloud Computing? 277

Shaping the Cloud 279

The Implications of Cloud Forensics 284

On Virtualization 291

Constitutional Issues 300

Chapter Review 303

Chapter Exercises 304

References 304

14 Mobile Device Forensics 307 Challenges of Mobile Device Forensics 307

How Cell Phones Work 308

Data Storage on Cell Phones 313

Acquisition and Storage 317

Legal Aspects of Mobile Device Forensics 322

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Contents

Chapter Review 324

Chapter Exercises 325

References 325

15 Fighting Antiforensics 327 Artifact Destruction 328

Hiding Data on the System 336

Covert Data 347

Chapter Review 354

Chapter Exercises 355

References 355

16 Litigation and Electronic Discovery 357 What Is E-Discovery? 358

A Roadmap of E-Discovery 358

Conclusion 377

Chapter Review 377

Chapter Exercises 377

References 378

17 Case Management and Report Writing 379 Managing a Case 379

Writing Reports 389

Chapter Review 393

Chapter Exercises 394

References 394

18 Tools of the Digital Investigator 395 Software Tools 395

Working with “Court-Approved” Tools 410

Hardware Tools 413

Nontechnical Tools 418

Chapter Review 421

Chapter Exercises 422

References 422

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Contents

19 Building a Forensic Workstation 423 What Is a Forensic Workstation? 424

Commercially Available Forensic Workstations 425

Building a Forensic Workstation From Scratch 429

Chapter Review 440

Chapter Exercises 440

References 440

20 Licensing and Certification 441 Digital Forensic Certification 441

Vendor-Neutral Certification Programs 442

Vendor-Specific Certification Programs 449

Digital Forensic Licensing Requirements 452

Chapter Review 454

Chapter Exercises 454

References 454

21 The Business of Digital Forensics 457 Starting a New Forensics Organization 458

Maintaining the Organization 466

Generating Revenue 478

Organizational Certification 481

Chapter Review 483

Chapter Exercises 483

References 483

A Chapter Review Answers 485

B Sample Forms 505

Glossary 511

Index 521

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xiii

Pr e fAc e

In performing an investigation that explores the use of computers or digital data, one is basically embarking on an archaeological expedition. To extract useful artifacts (information, in our case), one must be exceedingly careful in how one approaches the site. The similarities between a digital investigation and an archaeo- logical excavation are much closer than you might imagine. Data, like physical arti- facts, gets dropped into the oddest places. The effects of time and environment are just as damaging, if not more so, to digital artifacts as they are physical mementos.

Wh y Th i S Bo o k ?

Archaeologists are fully aware that, due to the passage of time, there are things they can never recover. The skin that once covered a skeleton long buried in the desert can never be found and analyzed. Likewise, data that was once stored in active memory on a computer can’t be recovered once the computer is switched off. However, in each example, it is possible to uncover evidence that both existed. When you first begin a digital investigation, you are undertaking a modern archaeological dig. Just like the shards of broken pots tell the anthropologist a lot about the culture that once used the vessel, the data you dig out of the computer can tell you volumes about the people who used the system.

This book takes the concepts of archaeology and applies them to computer science. It is a tutorial on how to investigate a computer system to find evidence of a crime or other misbehavior, and to make sure that evidence will stand up in

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Preface

court. While there are numerous other books that cover the whys and wherefores of digital forensics, this one will go into some detail on how to accomplish the task.

We’ve all watched the TV programs where the good guys figure out everything the bad guys did just from examining a piece of hair. (Is this why the bad guys are always called “hairballs”?) In modern-day investigations, the role of the computer plays as big a part as the star witness in many cases. In fact, the computer often is the star witness. Many cases have been solved or settled on the basis of what trained professionals were able to discover while examining electronic evidence (e-evidence).

However, the courts take a dim view on just anybody digging around in some- body else’s computers. They generally insist that legal process be followed, and that only a trained professional attempt the examination. The extraction and analysis of e-evidence is all part of what we call computer forensics. So what is forensics? The word itself originated from the Latin word forum, which described a place where people could assemble publicly and discuss matters of interest to the community. In that context, the word was derived from the strict rules of presentation applied to such discussions. In the context of this book, the word best means application of sci- ence or technology to the collection of evidence for the purpose of establishing facts. The vast majority of references specify that forensic science is targeted at criminal inves- tigation. However, in the real world, digital investigations are commonly used in civil cases and within organizations to identify members engaged in illicit activities.

A crime scene investigator might have DNA from samples of hair found at the scene analyzed to prove that a specific individual was on the scene at least once. Chemical analysis of soil can identify a geographical origin. The process of com- puter forensics is a series of steps by which professionals can prove the following:

• Data exists. • Data once existed. • Data originated from a specific source. • A particular individual either created or had access to the data in question. • The data is relevant to the case. • The data has not changed in any way from acquisition to analysis.

While it is not always necessary to prove all of the above statements are true, in order to secure a case it is best if as many as possible can be locked down. Even when all of the above are proven, a slick lawyer can always point out the fact that e-evidence is almost always circumstantial and press for reasons why the investigation team has presented insufficient corroborating evidence to demonstrate relevance or authentic- ity. (Both of these terms will be discussed in greater detail in the course of this book.) Even if you can prove beyond a shadow of a doubt that Tammy Sue created the letter

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Preface

you found on Billy Bob’s computer, can you prove that Billy Bob actually acquired the letter illegally? Probably not—which is why, as an expert witness, you don’t even try. You simply collect the evidence and state the facts. The more incriminating evidence that you can find, the better the chances are that your side wins the battle.

Wh o Wi l l Be n e f iT f r o m Th i S Bo o k ?

This book is primarily targeted at the reader who is preparing for a career as a professional investigator. It will not server as a legal tome for the prosecutor but will provide the background needed to efficiently and accurately collect evidence that a prosecutor can use. It will also prove handy to the IT professional who is occasionally called upon to perform e-investigations.

In addition, while the book’s primary goal is not to show people how to hide their tracks, understanding the processes discussed in this book can help an indi- vidual or organization prepare for a hostile demand for the delivery of electronic information (e-discovery). Properly identifying the bits on your computer can go a long way in preparing a defensible stance. If you know the garbage they are likely to find, you can be ready with an explanation. Foreknowledge also stops you from making the legally indefensible mistake of deliberately destroying evidence in advance of e-discovery. Such bad behavior doesn’t just result in a slap on the wrist. It can result in fines ranging into the millions (or even billions) of dollars.

Wh o Wi l l noT Be n e f iT f ro m Th i S Bo o k ?

Before attempting to fully understand this book, a wise reader will already have fulfilled a few prerequisites. He or she already knows a computer inside and out. Swapping out hard disks is second nature, and she finds it easier to work from the command prompt than a GUI. And he doesn’t have to ask what a GUI is. Operat- ing systems and file systems aren’t a foreign language. Opening a registry editor doesn’t induce spasms of panic, and most of all, exploring new areas of technology is a form of entertainment—not a nightmare.

There will be terms used in this book that I assume the reader already knows from previous experience or learning, because they are more relevant to general computer technology than to digital forensics. While it is not necessary to be a networking guru, it is certainly essential that you have a firm understanding of the concepts of networking, including principles of TCP/IP, network hardware, and communications.

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Preface

hoW Th i S Bo o k iS or gA n i z e d

The book starts out by introducing the reader to various things that must be clear before an investigation is ever initiated. The key differences between civil and criminal investigations are covered. What are the rules of the game? What laws affect us? Tools of the trade and minimum levels of training are a topic of discussion. What are the basic procedures of performing a computer forensic investigation?

From there on, the book describes tools and techniques that the average inves- tigator will use on a day-in, day-out basis. The chapters are set up in approximately the order that the tasks will be accomplished in the real world. Finally, some of the humdrum aspects of the profession are discussed. Documentation, certification, and business aspects of digital forensics aren’t that much fun. But they are neces- sary aspects of the profession.

Un d e r STA n d i n g Th e Bo o k’S fo r m AT

In order to present information in an orderly fashion, this book follows a scheme that will help the reader learn the material more quickly:

• Bold: A new term that will appear in the glossary • Italics: A definition • Monospace type: Code or commands to be typed into the computer • Command Syntax:

copy {filename.doc} {PATH:\newfile.doc} is the syntax used in the text to represent the command copy novel.doc c:\temp\docs\ novel.doc. Brackets will not be used at the command prompt.

• Sidebars: Anecdotes or examples that relate to the current text

Th e ne e d fo r Pro f e S S i o n A l S

Sadly enough, this is a litigious world we live in. If you run a business, chances get bet- ter every day that you will find the need to sue someone—or will be on the wrong end of the need. Some people want to retain a rosy outlook on life and go into computer forensics because they think it is a way to bring the bad guys to justice. I’m delighted to report that sometimes, they are actually right. Just don’t forget that the other side always has their team of professionals ready to refute everything you say or write. That’s why so many computer investigators are needed.

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Preface

A sign of how strong the field is can be seen in the Great Recession of 2008. When nearly six million people in regular walks of life all lost their jobs, open- ings couldn’t be filled for practitioners in the black arts of digital forensics. To top things off, scanning a listing of job offerings showed the lowest offering salary (that was stated) at $46,000 per year. The vast majority of starting salaries listed ranged from the high fifties to the mid-sixties per year. And this was starting salary.

With recent laws such as Sarbanes-Oxley and the new Federal Rules of Civil Procedure, along with venerable old laws like HIPAA and Gramm-Leach-Bliley, putting more pressure on business, health, and nonprofit organizations, it is a certain bet that the number of investigators needed will only increase. The key to getting one of these jobs is training and certification. And compliance has become a huge issue for many organizations.

ce rTi f i c ATi o n Pro g r A m S fo r fo r e n S i c S Pro f e S S i o n A l S

As of this writing, there are several certification programs dedicated specifically to forensic investigation of digital data sources. In order to impress a potential client with your qualifications, it is not only necessary to demonstrate your competence with digital forensic tools, but you must also show that you have a satisfactory knowledge of operating systems, networks, and computer hardware. The follow- ing list is by no means comprehensive, but offers a glimpse of what the industry offers. In addition to certification programs, a number of colleges have begun to offer computer forensics as a degree program, including a handful that offers mas- ter’s degree programs in the subject.

ge n e r i c fo r e n S i c S ce rTi f i c ATi o n S

• Certified Computer Examiner (CCE): International Society of Forensic Computer Examiners

• Certified Electronic Evidence Collection Specialist (CEECS): International Association of Computer Investigative Specialists (offered only to law enforcement officials)

• Certified Forensic Computer Examiner (CFCE): International Association of Computer Investigative Specialists

• Certified Information Systems Security Professional (CISSP): (ISC)2 • Global Information Assurance Certification (GIAC) Certified Forensic Analyst • GIAC Certified Forensic Examiner

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Preface

Ve n d o r-SPe c i f i c fo r e n S i c S ce rTi f i c ATi o n S

• AccessData Certified Examiner (ACE): Certification of proficiency with the AccessData Forensics Toolkit

• EnCase Certified Examiner: Guidance Software • Paraben: Various certificates of completion

no n fo r e n S i c ce rTi f i c ATi o n S

• Microsoft Certified Systems Engineer (MCSE): Microsoft certification of professional excellence in managing Microsoft servers

• Cisco Certified Network Engineer (CCNE): Proof of mastery of Cisco router and switch management

• A1: Vendor-neutral certification of expertise in computer hardware instal- lation and maintenance offered by the Computing Technology Industry Association (CompTIA)

• Network1: Vendor-neutral certification of expertise in network infrastruc- ture and administration offered by CompTIA

A Pe r S o n A l noTe o n ce rTi f i c ATi o n Pro g r A m S

Many years ago, I earned my daily bread in a completely different field. I sold com- puter hardware and systems to businesses and schools. As it was, the company for which I worked was unwilling to hire telephone support staff to assist customers with hardware issues. Instead, they expected the sales staff to field support calls. I got very good at that task. So much so that my boss started dispatching me to per- form actual repairs any time the service call was close enough to justify the travel.

I discovered that I liked repairing computers a whole lot more than I did sell- ing them. So I started distributing my resume to a variety of potential employers— and didn’t get a single response. On a whim, I self-studied for the A1 certification from CompTIA, took the exams, and passed with flying colors. As soon as I had those letters behind my name, I started circulating my resume again and got three invitations to interview on the first pass. Of those, I was offered a position that paid approximately 35% more than I earned in my best year as a sales rep. For me, that was a very powerful lesson on the value of certification. Getting a master of science in digital investigation management hasn’t hurt either.

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Ac k n oW l e d g m e nT S

A book of this nature is not the product of a single individual. I get my name on the cover because it was my idea and I did most of the writing—on the first go-around, anyway. However, there are some people who might go completely unnoticed for their patience, knowledge, skill, and understanding if I don’t point them out.

First of all, I would like to thank Robert J. Sherman for his help in mobile phone technology. Okay, to be precise, he didn’t just help . . . he wrote the whole chapter on mobile device forensics. He is an expert in this field, and my knowledge pales in comparison. So in the face of a lot of begging and pleading, along with promises of fame and fortune (sorry, bud . . . this is all the fame and fortune you’re likely to get out of this deal), he caved and agreed to help me. In the end, he turned out an excellent chapter. So if, after reading that chapter, you wonder why it reads so much better than the rest of the book, now you know.

Next, I’d like to give credit to two amazing reviewers whose comments turned a marginal first draft into a profoundly better final manuscript. Jay Light- foot and Ruth Watson both provided chapter-by-chapter comments on my first effort, suggesting numerous improvements in both structure and content. With- out those reviews, I don’t think this book would be as good as it is (however good that may be).

Naturally, I’m saving the best for last. My publisher actually made me complete the book! What’s with that? Michelle Housley, Michael Thurston, and Bernard Goodwin at Addison-Wesley all refused to give up hope on either me or the proj- ect (although I’m sure there were times it was tempting) and got me through that inevitable mid-book crisis where I felt I couldn’t possibly write another page with- out insanity setting in. This book is proof that I was wrong about the former, but I cannot with certainty attest to the latter.

Michael W. Graves April, 2013

Preface

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ABo UT Th e AUTh o r

Michael W. Graves has worked as an IT professional for more than 15 years—as a network specialist, a security analyst, and most recently as a forensic analyst. He holds a master of science in digital investigation from Champlain College, where he spent several semesters as an adjunct professor of computer science. His pub- lications include a number of certification manuals for several of the CompTIA certifications, as well as two novels. When not poking around in computers or writing books, he carts around an 8x10 view camera and makes black-and-white landscape photographs with a nod toward the F64 school of photography.

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1 This chapter will deal with the structural aspects that are common to most, if not all, digital investigations. Most current texts on the subject refer to a common investiga- tion model, although there is some disagreement on how many components make up the model. This book will use a six-part model, which will be covered in more detail later in this chapter.

It is essential to understand at the outset precisely what the scope of the investi- gation entails. The type of investigation dictates the level of authorization required. Generally, there are three types of investigation. Internal investigations are spon- sored by an organization. They generally start out as a deep, dark secret that the company doesn’t want getting out. Therefore, courts and state and federal agencies are rarely involved at the outset. The other two types—civil and criminal—both require involvement by the courts, but on different levels.

There will never be an investigation that does not have multiple stakeholders. In all court cases, there is the plaintiff and the defendant. In civil cases, these are the two litigants asking the courts to settle a dispute. In criminal cases, the defendant is the person accused of a crime and the plaintiff is the one making the accusation, which will always be some level of government authority. In addi- tion to these obvious players, there are those on the sidelines whose interests must be considered. Lawyers will almost always be involved, and in cases that are likely to end up in court, be assured that the judge will take an active interest.

With people’s finances, freedom, or even lives at stake, the necessity for accu- rate and thorough reporting cannot be emphasized enough. It is so critically

Th e An ATo m y o f A Di g iTA l

in v e sTi gATi o n

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ChApTer 1 The AnATomy of A DigiTAl invesTigATion

2

important that the subject of documentation will be discussed several times and in several places in this book. This chapter will start the reader off with the basics of good documentation.

Please be aware that this chapter deals only with the process of investigation. In Chapters 2 and 3, there will be detailed discussions of the various legal issues that the digital investigator must face on a daily basis. Consider the legal issues to be the glue that binds the model, but not the actual model. You can perform any number of investigations with no regard for the law. The results will be very revealing, but useless. Failure to be aware of legal aspects will cause the most per- fectly executed investigation to fall apart the instant the case is picked up by the legal team.

A BA s i C mo D e l fo r in v e sTi gATo r s

Today’s teaching methods require everything to be broken down into a simplified structure that you can put into a diagram. Computer investigations are no differ- ent. Even though there will probably never be any two cases that are identical, they should always be processed in accordance with a standard investigative model. Kruse and Heiser (2001) laid out the basic computer investigation model in their book entitled Computer Forensics: Incident Response Essentials. Their model was a four-part model with the following steps:

• Assess • Acquire • Analyze • Report

As shown in Figure 1.1, the four steps are further broken down into more gran- ular levels that represent processes that occur within each step. A more thorough study expands the model to six steps, as follows:

• Identification/assessment • Collection/acquisition • Preservation • Examination • Analysis • Reporting

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3

The six-step model (Casey 2001) as seen in Figure 1.1 emphasizes the impor- tance (and process) of preserving the data. It also distinguishes between the pro- cess of examination and analysis, whereas Kruse and Heiser considered them to be two parts of a single process. Experience has shown that acquisition and preserva- tion are not the same, and while it might be an easy enough procedure to extract and examine data, accurate analysis is as much an art as it is a science.

From a management standpoint, each of these steps must be carefully moni- tored. Through a process of careful documentation of the history of each case, the various processes can be constantly reassessed for efficiency and reliability. When it becomes necessary, knowing what works and what doesn’t allows the observant manager to tweak the steps in order to improve organizational effectiveness.

Figure 1.1 emphasizes just how detailed these seemingly simple steps can actu- ally be. The assessment phase alone has a multitude of steps involving people, hardware, environment factors, political implications, and jurisdiction. Acquisi- tion of evidence cannot begin until all potential sources of evidentiary material

Figure 1.1 The steps of a digital investigation

ASSESS

ACQUIRE

Dictates Authority Required

Policies and Laws

Identify Evidence

Investigation Type

Collect Data

Identify Necessary Tools

Create Forensic and Archive Copies

ANALYZE Static DataLive Data Network Data

REPORT PrepareCollect Present

Written Permissions

Subpoena

Warrant

Identify Roles

Criminal

Civil

Internal

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4

are identified, collected, inventoried, and catalogued. All of this must be done according to strict legal guidelines, or any subsequent investigation will be a waste of time. Legal and internal regulations regarding privacy must be followed at all times, or any information collected will not be admissible as evidence should the case ever make its way to court. In the case of internal investigations, adherence to corporate guidelines will generally be sufficient.

iD e nTi f i C ATi o n /As s e s s m e nT

Before beginning any investigation, the general rules of engagement must be estab- lished in advance and from the very start be strictly followed. Those rules can be very different between criminal and civil cases. It is essential that the investigator know what regulations apply to a specific investigation in order to not damage or destroy a case by failure to abide, either flagrantly or inadvertently.

In a criminal investigation, it is almost always necessary to obtain a warrant before seizing systems, media, or storage devices. In order to obtain that warrant, the investigating entity must provide a judge sufficient evidence that a crime has been committed, is about to be committed, or is in the process of commission. The specific type of information sought by the investigation must be identified; general fishing expeditions are never approved by a reputable judge—at least not for the purpose of issuing warrants.

Civil cases have more lenient guidelines. Internal investigations sponsored by an organization can be even more lenient. Federal guidelines regarding inva- sion of privacy are not as strictly enforced on civilian investigators looking into civil infractions as they are on agents of a government—state, federal, or local— who are investigating criminal complaints. Internal investigations can be made even easier when employees or members have signed a statement outlining an organization’s policies and guidelines.

No case should be accepted by an investigator directly. An executive-level deci- sion, based on a set of predefined guidelines (to be discussed later), must be made on whether to accept or decline each individual case presented to the organiza- tion. While it falls upon a law enforcement agency to accept any case assigned that involves violation of state or federal statutes, a private organization can refuse to accept cases for a variety of reasons. The organization’s leadership must indentify the criteria for case acceptance and stick to those criteria. It does the company’s reputation no good to be associated with a pedophile after publicly stating that its motives are to defend the community.

Make a list of all legal documentation that will be required. Warrants will be required in criminal cases. Court orders or subpoenas will be needed in civil

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5

matters. Signed agreements outlining the scope of the investigation should be required in all internal investigations.

Once the ground rules are established, it is time to identify potential sources of evidence. The obvious place to look is on the local system, including hard disk drives, removable media that might be lying about, printers, digital cameras, and so forth. Less obvious sources of information might be PDAs, external hard disks or optical drives, and even system RAM if the data processing systems are still running when the incident is reported. Knowing in advance what must be acquired can prevent the investigator from making critical errors during the pro- cess of acquisition.

Co l l e C Ti o n /AC q u i s iTi o n

This is the most technical part of the investigation and can also be the most criti- cal time for making errors. If the case under scrutiny should ever come to trial, the investigator presenting the case must be able to prove the following:

• The data is authentic. • The copy of the data used for analysis is reliable. • The data was not modified during acquisition or analysis (chain of custody). • The tools used to analyze the data are valid tools. • Sufficient evidence, both incriminating and exculpatory, has been acquired

and analyzed to support the proffered conclusion.

• The conclusions drawn are consistent with the data collected and analyzed. • People involved in the collection and analysis of the data are properly trained

and qualified to do their job.

This doesn’t sound easy, and it isn’t. Details on how to assure that all of these requirements are met are covered in greater detail in later chapters. For now, suffice it to say that it is essential that they be fulfilled.

pr e s e rvATi o n

A cardinal rule of digital investigation is that the original data must never be touched. For many years, the standard rule has been that a forensically sound copy of the original be made and that the examination and analysis of data be performed on the forensic copy. In terms of nonvolatile media, such as hard disks, removable media, and optical disks, this is still the rule. Devices should always be

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mounted as read-only in order to assure that no data is modified or overwritten during the process of mounting the device. Hard disk duplicators are designed specifically for this purpose, and in Windows systems, a simple modification of the registry allows USB devices to mount read-only.

Legal issues might arise if there is any possibility that media used to store images may have been contaminated. Be aware of that possibility and either have new media available for collection or be certain that previously used media has been forensically wiped.

In many cases, it becomes essential that copies of data be acquired through a process of live acquisition. This is the case when it becomes necessary to cap- ture the contents of memory from a running system, to acquire log files from network devices that cannot be brought down, or to archive information from network servers or storage appliances that defy the making of a forensic copy. If it is not possible, for any reason, to create a forensically sound copy, it is essential that the investigator document the reasons such a copy could not be made and record as accurately as possible the state of the evidentiary source before and after acquisition.

Storage of preserved information becomes part of the chain of custody process, and care must be taken that all data and devices collected during this phase are properly documented and tracked. Be able to verify that there was never a possibility for evidence to become tainted through outside tampering, corrup- tion, or improper procedure.

ex A m i n ATi o n

The process of examining data increases in scope and complexity every year. Whereas 1.44MB floppy disks were once the repository for stolen and illicit data, investigators these days are presented with flash drives the size of key fobs that hold 64 or more gigabytes of data and hard disks that store in excess of a terabyte. To make matters worse, the data is not likely to sit on a porch swing in plain view for anyone to see. Investigators will find it necessary to look for evidence in unal- located space left behind by deleted files. Hidden partitions, slack space, and even registry entries are capable of hiding large quantities of data. Steganography can hide documents inside of an image or music file. So essentially, the investigator is given an archive the size of the Chicago Public Library and asked to find a hand- written note on the back of a napkin tucked somewhere inside of a book.

Data carving tools and methods of looking for evidentiary material have evolved, and depending on the nature of the case, the investigator’s tool kit will require having several utilities. For criminal cases requiring forensically sound

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presentation, it is critical that the tools used to examine data be those consid- ered valid by the courts. There are a few commercially available software suites approved for evidentiary use. Among these are Encase by Guidance Software and the Forensics Tool Kit (FTK) from Access Data Corporation. A suite of tools running on Linux that is not “officially” sanctioned but is generally considered acceptable by most courts is The Sleuth Kit, designed by Brian Carrier.

Keeping up with technical innovations in the industry is most critical in this area. As new technology emerges, new tools will be needed to examine the accu- mulated data it creates. The organization that follows the cutting edge of technol- ogy will always be two steps behind those that help develop it. The balancing act comes when management must defend the use of a new tool to which the courts and lawyers have not yet been exposed. Be prepared to defend the tool along with the conclusions it helped you formulate.

An A lys i s

Here is where the process of digital forensic investigation leaves the realm of tech- nology and enters that of black magic. It is up to the investigator to determine what constitutes evidence and what constitutes digital clutter. A variety of tools exist that assist the investigator in separating OS files from user data files. Others assist in identifying and locating specific types of files.

Technique is as critical as the selection of tools. For example, when searching an e-mail archive for messages related to a specific case, string searches can bring up all those that contain specific keywords. Other utilities can detect steganogra- phy or alternate data streams in NTFS file systems. Collecting the data necessary to prove a case becomes as much art as it is science. One thing that the investiga- tor must always keep in mind is that exculpatory evidence must be considered as strongly as incriminating evidence.

re po rTi n g

Documentation of the project begins the minute an investigator is approached with a potential case. Every step of the process must be thoroughly documented to include what people are involved (who reported what, who might be potential suspects, potential witnesses, or possible sources of help), as well as thorough docu- mentation of the scene, including photographs of the environment and anything that might be showing on computer monitors. Each step taken by the investigator needs to be recorded, defining what was done, why it was done, how it was done, and what results were obtained. Hash files of data sources must be generated before

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and after acquisition. Any differences must be documented and explained. Con- clusions drawn by the investigating team must be fully explained. On the witness stand, it is likely that an investigator will be required to prove his or her qualifica- tions to act as an investigator. A meticulously investigated case can be destroyed by inadequate documentation. While commercial forensic suites automate much of the documentation process, there is still much manual attention required of the investigator.

un D e r s TA n D i n g Th e sC o pe o f Th e in v e sTi gATi o n

As mentioned, there are three basic types of investigation. With each type, the rules get tighter and the consequences of failure to comply get progressively stricter. A good rule of thumb is to pretend that the strictest rules apply to all investigations. However, as you might imagine, there are some role-specific requirements that don’t apply to all of them.

inTe r n A l in v e s Ti g ATi o n s

Internal investigation is the least restrictive of the inquiries you might make. From a standpoint of professional courtesy, internal investigations are more likely to be the least hostile type you’ll ever do. You work directly with management, and the target of your inquiries probably won’t even be aware of your activities until you are finished. You don’t have courts and lawyers combing every word you say or write, hoping to find the smallest mistake.

That is not to say that there aren’t laws that apply to internal probes. There most certainly are. State and federal laws regarding privacy apply to even the smallest organization. Also, different states have different laws regarding how companies deal with employment matters, implied privacy issues, and implied contracts. This isn’t intended to be a law book, so for the purposes of brevity and clarity, understand this. It is important to review any relevant regulations before you make your first move.

Most corporations have formal guidelines for such matters. In addition to a written employee handbook, it is very likely that a company has documented guidelines regarding issues leading to termination, use of company infrastruc- ture (including computers, e-mail systems, and network services), and so forth. In every step of your process, make sure that you adhere to the law and to corporate policy. If there appears to be a conflict between the two, get legal advice. At the very least, make sure you have written authorization to perform every step you take. Management needs to be aware of your process and every step involved in

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the course of investigation, and they must sign off, giving approval. Document everything you do, how you did it, and what results you obtained. In digging into the source and impact of any internal security breach, your foremost concern is the protection of your client. However, should your probe uncover deeper issues, such as illegal activity or a national security breach, then it becomes necessary to call in outside authorities.

Ci v i l in v e s Ti g ATi o n s

Civil cases are likely to be brought to the organization in situations where intel- lectual property rights are at risk, when a company’s network security has been breached, or when a company suspects that an employee or an outsider is making unauthorized use of the network. Marcella and Menendez (2008) identify the fol- lowing possible attacks:

• Intrusions • Denial-of-service attacks • Malicious code • Malicious communication • Misuse of resources

An investigator involved in a civil dispute should be cognizant of the Federal Rules of Civil Procedure. Although a legal degree is hardly necessary, a strong background in civil law is invaluable. Additionally, experience in business man- agement is useful, in that a good understanding of standard corporate policy is necessary. Good communications skills are required. Management needs to be able to feel equally comfortable dealing with a CEO or a secretary.

When working with large repositories of data connected to many different users and devices, it becomes more difficult to assess who actually committed an infraction. Proving that a specific user was accessing the network at a specific time (and possibly from a particular machine) can be critical to winning a case. Anson and Bunting (2007) point out the difficulties of generating an accurate timeline and recommend some good tools for simplifying the matter. A good manager will keep abreast of changing technology and make sure that the organization is equipped with the proper tools.

Tools required for examining large networks or performing live data capture are substantially more expensive than those used to search individual data sources. Generally, it is not possible to bring down a corporate network while the investi- gative team captures images of thousands of drives. Costs in time and materials

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would be prohibitive, as would be the negative impact of downtime on the com- pany. Specialized software is needed to capture, preserve, and document the data. Additional tools are needed for data reduction. Filtering out the general network chatter and unrelated business documents can be a time-consuming process.

Keeping up with newer technology is essential, as is constant refresher train- ing. The organization must continually assess its current capabilities and apply them to what imminent future needs are likely to be. As technology advances, investigative tools and techniques need to advance as well. Cases are won and lost on the ability of investigators to extract evidence. If a forensics team finds itself faced with a technology it doesn’t understand, there will be no time for on-the-job training.

Cr i m i n A l pr o C e D u r e mA n Ag e m e nT

Defining precisely what constitutes computer crime is very difficult to do. Fortu- nately, it is not up to the investigator to determine what is and what is not crimi- nal activity. However, some definitions have been presented by various experts. Reyes (2007) states that a computer crime will exhibit one or more of the following characteristics:

• The computer is the object, or the data in the computer are the objects, of the act.

• The computer creates a unique environment or unique form of assets. • The computer is the instrument or the tool of the act. • The computer represents a symbol used for intimidation or deception.

Generally speaking, computer crimes are little different from conventional crimes. Somebody stole something, somebody hurt somebody else, somebody committed fraud, or somebody possessed or distributed something that is illegal to own (contraband). While not an exhaustive list of possible computer crimes, the following is a list of the most commonly investigated:

• Auction or online retail fraud • Child pornography • Child endangerment • Counterfeiting • Cyberstalking • Forgery

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• Gambling • Identity theft • Piracy (software, literature, and music) • Prostitution • Securities fraud • Theft of services

Prosecution of criminal cases requires a somewhat different approach than do civil cases. Legal restrictions are stricter, and the investigator is more likely to be impacted by constitutional limitations regarding search and seizure or pri- vacy. Failure to abide by all applicable regulations will almost certainly result in having all collected evidence suppressed because of technicalities. Many civil investigations are not impacted as severely by constitutional law because there is no representative of the government involved in the investigation. To assure that the investigation succeeds, management of a criminal division needs to have someone with a strong legal background. Courts will use the Federal Rules of Evidence to decide whether or not to allow evidence to be admitted in an indi- vidual case.

For the same reasons, reporting procedures and chain of custody must be rigorously followed by each person involved in an investigation, whether they are involved directly or peripherally. Even a minor departure from best practice is likely to be challenged by opposing counsel. Because of this, selection of person- nel becomes a greater challenge. A technical whiz with little or no documentation ability is likely to fail in criminal investigation. Anyone who demonstrates a disre- gard for authority is a poor candidate for investigating criminal cases.

Tools used in criminal cases are subject to a tighter scrutiny than those used in civil cases. When a person’s life or liberty hangs in the balance, judges and juries are less sympathetic to a technician who cannot verify that the tools used to extract the evidence being presented are reliable. Software and hardware tools used by the organization must be recognized by the court for use, and the tech- niques used by investigators must be diligently documented to show there was no deviation from accepted standard procedures.

Funding is likely to be more limited in criminal work than in civil investiga- tions. Money will be coming from budget-strapped government entities or from law offices watching every dime. In some cases, courts will apply the Zubulake test to determine if costs should be shifted from one party to the other. This test is based on findings from the case Zubulake v. UBS Warburg (217 F.R.D. at 320, 2003) where the judge issued a list of seven factors to be considered in ordering

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discovery (and in reassigning costs). These factors are to be considered in order of importance, the most important being listed first:

1. The extent to which the request is specifically tailored to discover relevant information

2. The availability of such information from other sources

3. The total cost of production compared to the amount in controversy

4. The total cost of production compared to the resources available to each party

5. The relative ability of each party to control costs and its incentive to do so

6. The importance of the issues at stake in the litigation

7. The relative benefits to the parties of obtaining the information

iD e nTi f y i n g Th e sTA k e h o l D e r s

In any investigation, there are going to be a large number of people with a vested interest in the outcome. These people are the stakeholders. Stakehold- ers vary in each investigation, depending in part on the scope of the investiga- tion and in part on the raw size of the organization and the data set involved. Sometimes it is easy for the investigator to become overwhelmed by the sheer number of people involved. In all cases, it is safe to assume that there are two primary stakeholders with a greater investment than any other. Those are the accused and the accuser.

The accuser is the easiest to identify. This is the person or the organization that initiated the inquiry to begin with. As simple as that may seem, all too often the actual accuser gets left in the wake of bureaucracy and procedure. This is par- ticularly true in cases that are destined to be presented before a court. Lawyers suddenly take the place of the stakeholders, and the assumption becomes that suddenly they are the primary stakeholders. A good investigator never lets this happen. Communications may be with these attorneys as representatives of the stakeholders, but the primary stakeholders remain the accused and the accuser.

Depending on the magnitude and the scope of the case, there might be a wide variety of secondary stakeholders—or none at all. To be a stakeholder of any kind, an individual or organization must have something to gain or lose from the out- come of the investigation. In spite of possible arguments to the contrary, this does not include the news media. Key stakeholders include

• Decision makers: Those who have the authority to initiate or to cancel an investigation or to reassign personnel.

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• Mediators: Judges or third-party arbitrators who are responsible for deciding the outcome of the case or issue decisions pertaining to procedure.

• Customers: People or organizations downstream from the accused or accuser who will be directly impacted by the decision. For example, in i4i Limited Partnership v. Microsoft Corporation, virtually every reseller of Microsoft Word was impacted (i4i v. Microsoft Corporation, 6:07VC113, 2009).

• Process owners: People or organizations whose actions may have contributed to the case or whose operations were or will be impacted by the case.

Extraordinary circumstances can lead to unexpected stakeholders. The Exxon- Valdez incident in 1989 started out as the accidental grounding of an oil tanker that resulted in Exxon’s launch of an investigation into the actions of the ship’s captain. Before it was over, there were more than 38,000 litigants, including individuals, agencies, and environmental organizations, and three different sets of judges involved in a variety of decisions (Lebedoff 1997). That’s a lot of stakeholders.

Th e ArT o f Do C u m e nTATi o n

Any individual who lacks organizational skills or who finds it difficult to keep accurate notes as he works is not a likely candidate for the position of digital inves- tigator. The vast majority of work the investigator does is documentation. There are five levels of documentation that must be either maintained or created during the course of each case study:

• General case documentation • Procedural documentation • Process documentation • Case timeline • Evidence chain of custody

Every one of these is important to winning a case should it make its way to court. Faulty, incomplete, or missing documentation can destroy an otherwise meticulously prepared case. In addition to these items, there is also the final report, but that will be covered elsewhere in this book.

Th e Cr A f T o f pr o j e C T mA n Ag e m e nT

While this book is not intended to be a treatise on what makes a good project manager, it should be pointed out that good project management practices can

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facilitate the smooth completion of an investigation from beginning to end. Virtu- ally all of the principles defined in the Project Management Institute’s (PMI) Project Management Book of Knowledge (PMBOK) apply directly to the investigatory pro- cess. Wysocki (2009) defines a project as “a sequence of unique, complex, and connected activities that have one goal or purpose and that must be completed by a specific time, within budget, and according to specification.”

Like all other projects, a digital forensics investigation involves multiple stake- holders and a defined scope, and has specific objectives that must be pursued. Multiple people will be involved, requiring the project leader to manage people’s time, to assure that tasks are assigned to the person most skilling in performing the work involved, and to keep everything in budget and on time.

ge n e r A l CA s e Do C u m e nTATi o n

Case documentation begins the moment you are asked to consider investigating an incident. Even if an investigator or agency chooses not to accept a case (assuming that possibility exists), it may later become necessary to explain why the case was turned away. Another thing the investigator needs to keep in mind is that anything recorded during the case is discoverable. To be discoverable means that opposing counsel has the right to examine and analyze data collected during the process. If an investigator takes written notes or uses a digital voice recorder to make verbal obser- vations, copies of the notes and audio files must be made available to the opposition if requested. Therefore, great care should be taken in the creation of documentation.

A number of factors need to be addressed in the basic case documentation:

• What is the name and contact information for the organization involved in the incident? Record every individual contacted during the investigation, that per- son’s role in the process, and when, where, and how he or she was contacted.

• When was the investigative agency notified, and who initially took the infor- mation? Record exact dates and times.

• A description of the incident, both in technical terms and in lay terms. • When was the incident discovered? • When did the incident occur? This may be a best-guess scenario. • Who discovered the incident? • To whom was the incident reported? This means anyone who learned of it,

regardless of rank and file.

• What systems, information, or resources were impacted by the event? This includes hardware, organizational entities, and people.

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• Is there any preliminary information that suggests how the offending actions were accomplished?

• What is the impact of the incident on the individual or organization affected? This includes financial impact, impact on the systems involved, and any effect it may have had on the health or mental welfare of individuals involved.

• What actions were taken between discovery of the incident and reporting it to authorities? This means everything that was done, including simple files searches.

• Who are the stakeholders as they are identified? • As soon as possible, provide a detailed inventory of all hardware (and pos-

sibly software) that is involved in the incident. If hardware is seized, provide a separate, itemized list of seized equipment.

• Have all copies of all pertinent documentation, such as warrants, summons, written correspondence, and so forth, been added to the case file?

Any other generic information that does not fit directly into one of the other reporting categories would be included in this section. This would include expense reports, timesheets, and any other general recordkeeping.

pr o C e D u r A l Do C u m e nTATi o n

During the course of the investigation, a number of tasks will be performed. The history of these tasks should be maintained as painstakingly as possible. The inves- tigator should describe every step taken, the tools used to perform specific tasks, a description of the procedure, and a brief summary of the results. Detailed results can be included in the final report. When describing a technical process, process docu- mentation should be provided whenever possible (as described in the next section).

Anytime the investigator chooses not to follow recommended best practice, it is essential to record the action being taken, what the recommended proce- dure would normally be, and what actual procedure is being used, and to explain precisely why the deviation is occurring. For the longest time, the best practice when coming upon a running suspect system was to pull the plug. The reasoning was that an orderly shutdown of the system overwrote a lot of data and drastically altered paging files. However, in a live network event that is still transpiring, it may be necessary to collect information from active memory, including current network connections, user connections, and possibly cached passwords. Shutting down the system would kill all that information. The proper course would then be to perform a live analysis and document precisely why the action was taken.

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The following is a summary of events and tasks that should be meticulously reported. Some organizations performing investigations on a full-time basis have a template that the investigator follows, filling in the results as tasks are completed.

• Document the condition of the original scene, including a list of hardware found, status (on/off, logged on/logged off, etc.), along with photographs or a video tape.

• Record the names and contact information of all individuals interviewed during the investigations. A summary (or if possible, a transcript) of the interview should be provided as an attachment.

• If equipment is seized, document the make, model, and serial numbers of each device. Provide documentation authorizing the seizure as a separate attachment.

• Record the exact time materials were seized, the location it was taken from, and the name and contact information of the person performing the action.

• If equipment is transported, provide a detailed description of how the devices were packaged if antistatic or Faraday protection was provided. If not, why not?

• Describe the location where seized materials were taken, including the location and type of storage facilities used to house the materials. Record the name and contact information of the person transporting each item.

• Whenever live data acquisition is deemed necessary, record the following: • What type of date was acquired (memory dump, system files, paging

files, etc.)?

• What tools and procedures were used to connect to the suspect machine?

• What tools and procedures were used to acquire the data? • What was the time and date the data was imaged, and what was the time

and date reported by the device from which the data was acquired? The two are not always the same.

• What are the type, make, model, and serial number of the target device to which the data was copied?

• What is the condition of the target device (new, forensically cleaned, data-wiped, or formatted)?

• What are the MD5 and SHA-2 hash calculations of the image?

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• When devices are imaged for later analysis, record the following: • The type, make, model, and serial numbers of source devices • The type, make, model, and serial numbers of target devices • Precautions taken to avoid contamination or loss of data in evidence • For disk drives:

○ Drive parameters of disk drives, both target and source

○ Jumper settings

○ Master/slave configuration if IDE

○ Device ID if SCSI or SATA

• For optical or flash drives: ○ Make, model, and capacity

○ Mounted or not mounted at time of seizure

○ Inventory of blank or used media

• For seized media: ○ Form of disks (CD, DVD, Zip, etc.)

○ Capacity of disks

○ Number and type of seized disks

○ Possible evidence that there are missing disks (empty jewel boxes, etc.)

• The date and time of each action taken. • The process used for mounting the seized device, including mechanisms

in place to assure write-protection

• The process and tools used to acquire the forensic image • MD5 and SHA-2 hash calculations of the image before and after

acquisition

• Photograph computer systems before and after disassembling for transport. • During the examination and analysis of data, record each procedure in

detail, identifying any tool used. Record beginning and ending hash calcula- tions of source data, explaining any discrepancies that may occur.

• Above all: Maintain an unbroken chain of custody that includes each piece of evidence handled throughout the course of the investigation.

As is readily apparent, case documentation is not to be taken lightly. While individuals should be treated as innocent until proven guilty, sources of evidence by default get the opposite treatment. The astute investigator always assumes that

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any case he or she is working will eventually end up in court. Even the seemingly benign cases, such as uncovering evidence of employee misconduct, can end up in court as a civil (or even criminal) court case. Poor documentation can endanger what would otherwise be a sound case.

pr o C e s s Do C u m e nTATi o n

Unless an investigator or an organization utilizes homegrown tools, most process documentation is likely to come from the vendors providing the hardware or soft- ware used. There are some pieces of documentation that must be generated by the agency. Process documentation includes

• User manuals • Installation manuals • Readme files stored on installation media • Updates to manuals posted online by the vendor • Logs showing updates, upgrades, or patch installations

This is the type of documentation that does not necessarily need to be pro- vided with each investigation report. It must, however, be available if demanded by opposing counsel, a judge, or arbitrator. There are situations that occur where process documentation is used to support or refute claims that proper procedure was followed during specific steps in the investigation.

Bu i l D i n g Th e Ti m e li n e

Key to virtually every investigation involving computer or network activity is the creation of an accurate history of events related to the incident under inves- tigation. By creating an easily comprehensible report of the order of events that occurred, the investigator can more easily and more accurately show correlation between those events. For example, it is easier to associate a specific user to the origination of a particular file if the timeline shows that the file was created at a time when it can be shown unequivocally that the user was logged onto the com- puter or network.

The timeline (Figure 1.2) needs to start from a time just before the incident was known to begin or was initially discovered to the point when the evidentiary materials were acquired for analysis. This is why it is essential that the investi- gator do nothing that could alter the metadata of files stored on the computer. Metadata is information about files that can be either stored within the file itself

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or extracted from other repositories, such as the Windows master file tables or registry. Three critical pieces of information are the creation date, last accessed date, and last modified date. Together these form the file’s MAC (modified, accessed, and created) data. Simply viewing a file in a browser or application alters the accessed data. Copying a file from one location to another can modify both the creation and modified dates if forensically acceptable methods are not used. Metadata and ways of protecting and analyzing it will be covered in greater detail in Chapters 9 and 10.

Network and user logon activity are also critical to creating a timeline, as are Internet and e-mail usage. There are various tools that help the investigator vali- date times that certain events occurred. MACtime is a common forensic tool that can extract a history of user activity on a system. It creates an ASCII timeline of file activity. X-Ways Trace can be used to extract and analyze Internet history. In a network environment, event tracking in utilities such as Microsoft’s Event Viewer, the registry, or log files can reveal valuable information that can be used for assembling a credible timeline.

Timelines can be assembled in graphical form that makes it easy for lay people such as lawyers and judges to understand. Some of the forensic suites (notably Encase) produce automated timelines. Others, such as the Forensic Tool Kit, do not. It is possible, but not necessarily pleasant, to create a timeline using com- mercial products such as Microsoft Visio, Excel, or OpenOffice. Excel is very cumbersome for this task and is not recommended. Microsoft Visio produces more polished timelines but is limited by the fact that each event must be entered into the timeline separately. A better use of the investigator’s time is to invest

11/24/2009 Incident Reported

12/2/2009 Systems Seized

12/9/2009 teenybabe.jpg

recovered from drive

12/17/2009 Arrest Warrant

Issued

12/20/200912/13/200912/6/200911/29/200911/22/2009 11/20/2009

11/27/2009 Subpoena Issued

11/20/2009 teenybabe.jpg

Deleted from disk Evidence of deleted pornography found

12/4/2009 Hard Disks Imaged

12/27/2009

12/31/2009

Figure 1.2 A good timeline is essential in communicating the order of events to outside parties of interest.

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in a proprietary product such as Timeline Maker for Windows or Bee Docs for Macintosh computers.

Ch A i n o f Cu s To Dy re po rT s

For every physical unit of evidence taken into possession by an investigator or agency, there must be a continuously maintained chain of custody report. Consider it the equivalent of a timeline for evidence. The chain of custody report must be able to verify several critical pieces of information:

• Identify the item precisely, listing type of evidence, make, model, and serial number (if relevant), and make a photograph of the item (if possible).

• Specify when was the item taken into possession. • Identify where or from whom the item was seized. • Record who acquired the item along with the time and date acquired. • Document who transported the item and how was it transported. • Document how was the item stored during transport. • Regularly record how the item was stored during possession. • Provide a continual log, showing the time and date of each time it was

checked out for examination, the purpose for checking it out, and the time and date it was checked back in for storage, identifying who had possession of the item during that time.

While an item is in possession of an individual investigator, that person should document what steps were taken to preserve the integrity of the evidence while in possession. Such documentation needs to include a precise identification of the device in possession (as defined above) and what controls were in place to protect the device from electrostatic discharge, electromagnetic interference, and other potential sources of data corruption and other protections. Document what methods were used to prevent data from being inadvertently written to the device (write-blocker devices, software write-protection, etc.). Generate before and after hash values to confirm that the data source did not change while in possession. If it did change, document what process caused the change, along with how and why the change occurred.

Any deviation from standard documentation procedures in preparing the chain of custody can, and most likely will, lead to challenges from opposing coun- sel and can possibly cause the evidence to be thrown out. No breaks can exist in the timeline, because this indicates an opportunity for the data to be replaced, corrupted, or modified.

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Ch A p Te r re v i e w

1. In what ways does Casey’s six-step model differ from the earlier four-step models of digital investigation? What is new, and what has changed?

2. Where in the Casey model would one begin to ascertain precisely what legal documentation would be required for a particular investigation?

3. Is Zubulake v. UBS Warburg more relevant to a criminal case or a civil matter? Explain your answer.

4. Discuss the difference between procedural documentation and process documentation. In which document would you explain what steps you took during the examination of a file system?

5. During the process of examination, you have reason to suspect that files that were deleted may still exist. What is the process for locating intact files in unallocated disk space?

Ch A p Te r ex e rC i s e s

1. Look up at least one criminal case that involved data carving. Was the tech- nique useful for the prosecution or for the defense?

CA s e l Aw : Ch A i n o f Cu sTo Dy It is inevitably a good idea to present a flawless chain of custody in order to avoid having evidence declared inadmissible. The courts have vacillated in how they treat evidence in regards to “missing links” in the chain. In Jeter v. Commonwealth, Justice Roberts of the Twelfth Virginia Appellate Court wrote, “When a ‘vital link’ in the possession and treatment of the evidence is left to conjecture, the chain of custody is incomplete, and the evidence is inadmissible” (Jeter v. Commonwealth 2005).

Conversely, in Hargrove v. Commonwealth, the defendant argued that since the chain of custody did not include any signed statements or testimony from the offi- cer who delivered the evidence to the laboratory, nor was there any evidence that an authorized agent accepted delivery of the evidence at the lab, the integrity of the evi- dence was in doubt. In denying this appeal, Justice Felton wrote, “It concluded that because the evidence container was received at the lab ‘sealed and intact,’ there was no evidence that it was subject to tampering between the time it left the police evidence room and the time that it was removed from the lab storage locker. We conclude that the trial court did not err in admitting the evidence container and the certificate of its analysis” (Hargrove v. Commonwealth 2009).

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2. Think of as many ways as possible in which a civil case involving electronic discovery of specific e-mails would differ from a criminal cases in which a search of a suspect’s e-mail archives must be conducted. Don’t try to get too specific here, as this is simply an overview chapter.

3. Throughout the investigation, a myriad of actions are performed. At what point does the chain of custody begin, and how is it relevant at each subsequent stage?

re f e r e n C e s

Anson, S., and S. Bunting. 2007. Mastering Windows network forensics and investi- gation. Boca Raton: Sybex.

Casey, E. 2004. Digital evidence and computer crime. New York: Elsevier Academic Press.

Hargrove v. Commonwealth. 2009. Record No. 2410-07-2. Court of Appeals of Virginia Published Opinions. www.courts.state.va.us/wpcap.htm (accessed April 8, 2010).

Hargrove v. Commonwealth, 44 Va. App. 733, 607 S.E.2d 734 (2009). www. lexisone.com/lx1/caselaw/freecaselaw?action5OCLGetCaseDetail&format5 FULL&sourceID5bdjcca&searchTerm5eGjb.diCa.aadj.eeWH&searchFlag5 y&l1loc5FCLOW (accessed April 8, 2010).

Jeter v. Commonwealth, 44 Va. App. 733, 737, 607 S.E.2d 734 (2005).

Kruse, W., and J. Heiser. 2001. Computer forensics: Incident response essentials. Boston: Addison-Wesley.

Lebedoff, D. 1997. Cleaning up: The Exxon Valdez case—The story behind the biggest legal bonanza of our time. New York: Free Press.

Marcella, A., Jr., and D. Menendez. 2008. Cyber forensics: A field manual for collecting, examining, and preserving evidence of computer crimes, 2nd ed. Florida: Auerbach Publications.

Reyes, A. 2007. Cyber crime investigations. Rockland: Syngress Publishing

Wysocki, R. 2009. Effective project management: Traditional, agile, extreme. 5th ed. Indianapolis: John Wiley & Sons.

Zubulake v. UBS Warburg , 217 F.R.D. at 320 (2003).

http://www.courts.state.va.us/wpcap.htm
http://www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format=FULL&sourceID=bdjcca&searchTerm=eGjb.diCa.aadj.eeWH&searchFlag=y&l1loc=FCLOW
http://www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format=FULL&sourceID=bdjcca&searchTerm=eGjb.diCa.aadj.eeWH&searchFlag=y&l1loc=FCLOW
http://www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format=FULL&sourceID=bdjcca&searchTerm=eGjb.diCa.aadj.eeWH&searchFlag=y&l1loc=FCLOW
http://www.lexisone.com/lx1/caselaw/freecaselaw?action=OCLGetCaseDetail&format=FULL&sourceID=bdjcca&searchTerm=eGjb.diCa.aadj.eeWH&searchFlag=y&l1loc=FCLOW
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2 One of the challenges facing a digital forensics investigator (DFI) in any case ever tackled is making sure that everything that is done is done within the parameters of the law. Even the internal corporate survey of a company-owned computer can be impacted by a variety of rules and regulations. Some are legislated regulations, and some fall under the category of constitutional law. The DFI does not need to be a lawyer to succeed. Legal counsel should be involved in every case an agency or orga- nization undertakes. The investigator does, however, need to know enough law to keep out of trouble—and to prevent his or her case from being scrapped due to legal breaches. There are three areas this chapter will cover concerning the legal aspects of investigation:

• Constitutional rights and restrictions • Legislated privacy regulations • Working beneath the corporate shield

This chapter provides an overview of these topics, while the following chapters will go into more detail. The reader should keep in mind that the author is not a lawyer and this cannot be taken as legal counsel, but rather a survey of law. Always consult with legal counsel if there is any question about how to proceed with a specific case or situation.

L AWS AF F ECTI N G FO R E N S I C

IN V E STI GATI O N S

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CO N STIT UTI O N A L IM PLI C ATI O N S O F FO R E N S I C IN V E STI G ATI O N

When the United States was initially founded, the men who led the way to freedom realized that a formal statement of purpose was necessary to keep a fledgling nation from falling apart within a few generations. To this extent, they crafted what we now know as the Constitution of the United States. Knowing that nothing ever stays the same, they built into this document the mechanisms by which it could be modified. These modifications are known as amendments. To date, there are 27 amendments to the Constitution. Should the American people decide that they wanted to add a twenty-eighth, they would have to do two things (U.S. Constitution, Article V):

• A two-thirds majority of both houses of Congress would have to pass a proposal for the amendment.

• Three-fourths of the states would have to ratify the amendment in their state legislatures.

The first ten amendments are lumped together in what is popularly known as the Bill of Rights. Amendments One through Eight guarantee individual liberties, while Nine and Ten work together to assure that powers not specifically delegated under constitutional law remain with the states. The amendment that affects the DFI more than any other is the Fourth Amendment.

TH E FO U RTH AM E N D M E NT

One of the abuses that enraged colonial citizens more than any other was the Writ of Assistance. While this sounds benign enough, a writ of assistance was a general warrant that allowed any government agent to enter a home or business with- out permission and rip it apart looking for any evidence that the residents were involved in undesirable behavior. Under British rule, the government agent didn’t need to specify what crime was being investigated or what evidence was the target of the search. The writ of assistance allowed general “fishing expeditions” and was frequently used by local officials indiscriminately—often simply as a means of demonstrating who was in charge.

The first paragraph of the Fourth Amendment clearly states the purpose of the document. The remaining pages clarify the intent and meaning of the amendment in very granular detail. The first paragraph says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants

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shall issue but upon probable cause, supported by Oath or affirmation, and par- ticularly describing the place to be searched, and the persons or things to be seized. (U.S. Constitution, Fourth Amendment)

There are two key phrases in this paragraph that surface repeatedly in the pro- cess of any criminal investigation. The phrases “unreasonable search and seizure” and “probable cause” have generated reams of legal documents defining what they mean and how they apply to specific cases. There are some notable exceptions to the Fourth Amendment, which will be discussed in the next chapter. However, for the most part, the amendment provides very specific guidelines to how investiga- tions may be conducted.

Unreasonable Search and Seizure

Any time that there is a question about the legality of a search or the seizure of evidence, a judge will consider the answers to two questions:

• Was there actually a search, and was it by government agents? • Was said search reasonable in all aspects?

The first question seems to be easy to answer, at least superficially. It is actu- ally more difficult than it may appear. However, the mere fact that someone had their house, or their computer, rifled by an investigator does not necessarily fulfill the legal definition of a search. Under constitutional law only legal representa- tives of the government are implicated. So the judge will ask, “Was the search conducted by an agent of the government?” If not, the Fourth Amendment does not apply. Once again, the glass that covers this question can become cloudy. Who is an agent of the government? Obviously, a law enforcement official qualifies. But does a private investigator? That can depend on who hired the investigator and the circumstances by which that person came to conduct the search. If the federal government, or a state or local government, requested the services of the investigator, that person becomes an agent of the government and is subject to constitutional law.

In The United States v. Howard et al. (1985), both of these conditions were addressed. In Paragraph 24, the Judiciary states, “We agree with defendants that a consent clause in an insurance contract does not insulate from the Fourth Amendment a search by a private investigator who acts as an agent of the govern- ment to gather incriminating evidence for use in a criminal proceeding.” The point of this statement is that while a private investigator (PI) acting alone is not subject to Fourth Amendment restraints under normal circumstances, one

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working at the request of the government is. In this particular case, the court determined that the information collected by the PI was obtained prior to the government contacting the investigator. Therefore, at the time the information was gathered, the PI was not acting as a government agent, and therefore the information was admissible. The ruling states in Paragraph 25, “Nevertheless, where, as here, the intent of the private party conducting the search is entirely independent of the government’s intent to collect evidence for use in a criminal prosecution, we hold that the private party is not an agent of the government” (752 F.2d 220, 17 Fed. R. Evid. Serv. 383).

Once the existence of a search is confirmed, the judge must determine if the search was reasonable. He or she asks, “Did the subject of the search have a reasonable expectation of privacy regarding the object of the search?” This question also has two underlying concepts. Can the person who thinks his rights were violated demonstrate a reasonable expectation of privacy, either actual or subjective, regarding the object of the search? An actual expecta- tion of privacy would be exemplified by a person’s wallet or purse or home. A subjective expectation is defined as one that society in general would rec- ognize. That can be more difficult to determine, as evidenced by the plethora of cases going through the courts. As of this writing, there are cases regarding the transmission of text over an Internet connection, the right of employers to search their own computers, the use of video surveillance in schools, and so on and so forth. There are even cases involving convicted criminals serving time in jail.

Probable Cause

In order for a law enforcement official to obtain a warrant, there must first be a strong indication of probable cause. The USLegal dictionary defines probable cause as “the level of evidence held by a rational and objective observer necessary to justify logically accusing a specific suspect of a particular crime based upon reliable objective facts” (USLegal 2009).

Probable cause must exist before a judge will issue a warrant, but it can also be sufficient justification for performing a search without a warrant. In theory, probable cause is a reason for action known ex ante (meaning “before the fact”). An investigator cannot break into an apartment, discover a cache of drugs, and then claim probable cause for the search. Performing a warrantless search based on probable cause runs the risk of having all evidence obtained during the search disallowed and opens the door for civil litigation by the person whose rights were violated.

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TH E FI F TH AM E N D M E NT

When drafting the Fifth Amendment, the goal of the authors was to prevent the government from ever forcing a citizen to provide self-incriminating testimony. Too many years of having confessions beaten out of them by agents of the British crown left a bad taste in the mouths of our founding fathers. According to the amendment, no person should ever “be compelled in any criminal case to be a witness against himself.” (US Constitution, Amendment V).

So how does this impact the digital investigation? Virtually every resource on the network, all cloud resources, and any encrypted drive will be protected by a password. While courts have been somewhat divided on the issue of whether divulging a password is a form of testimony, the general consensus has been that it is. Therefore, in any criminal investigation, while it certainly won’t hurt to ask the suspect for a password, if the person refuses, they are likely to claim their rights under the Fifth Amendment.

Even if you have a warrant to search the computer, or even if the person has given his consent, extracted password-protected materials fall under the closed container rule. As such, if a password is not voluntarily provided, you will have to resort to other methods to gain access.

TH E SEQ U E N C E O F SE A R C H A N D SE I ZU R E Typically, the routine execution of a search warrant goes something like this. The investigator requests a search warrant based on specific parameters (which will be discussed in the next chapter). A judge agrees the request is legitimate and reasonable and issues the warrant. It is a two-stage process. You search (and find), and then you seize. The investigators search the scene and confiscate any evidentiary material they may find. It doesn’t always work that way with digital evidence.

To the extent that you are authorized to search for certain items that are likely to contain evidence—such as computers, cell phones, digital media, and so on—this is the order in which a computer investigation is handled as well. However, most com- puter searches occur in four stages. An initial search locates computer equipment or media as defined in the subpoena. That material is seized and transported to another location. The actual search does not occur until the contents of the device are imaged, which is a process that generally occurs at the new location distant from the suspected scene of the crime. A logical search of the computer or media contents occurs, and any evidentiary digital information is located, copied, and archived. This extended process leaves open many legal challenges and arguments. Some of these will be addressed in the next chapter, and some have yet to be addressed by the courts.

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FI R S T AM E N D M E NT PR OT E C TI O N S

Another level of privileged information is any material that might be protected under the First Amendment to the Constitution. The First Amendment is very short and to the point. It says the following:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The amendment itself isn’t very descriptive about what part of free press is actually covered. Several Supreme Court cases have further defined the rights pro- vided by the amendment. A pivotal case was decided in 1938 in Lovell v. City of Griffin [303 U.S. 444 (1938)]. The opinion written by Chief Justice Hughes offered the first official definition of what constituted “the press.” He defined the press as “every sort of publication which affords a vehicle of information and opinion.” That is a fairly wide description, and it did not define specifically what rights the press had.

Branzburg v. Hayes addressed that issue in 1972 when the court ruled that the First Amendment did not allow a journalist to refuse a subpoena issued by a grand jury. The fact that the case was a 5–4 split decision suggests just how divisive the issue was. At issue was whether or not a journalist had the right to refuse to testify before a grand jury based on First Amendment protections. The court said no.

The key lessons to be learned are twofold. One cannot get a search warrant to search a newspaper office or other publication. It just won’t happen. However, one can request and be granted a subpoena demanding that the publication hand over specifically defined information.

YO U R ISP A N D TH E FI R S T AM E N D M E NT Freedom of the press has been a given in American culture for so long that the phrase is part of the average citizen’s everyday vocabulary. First Amendment debates typi- cally center around libel, threatening speech, and obscenity. Additionally, they focus on the government’s limited power to censor what the press offers to the public.

In today’s cyberworld, it is becoming more difficult to determine what is actually “press” and what is some everyday Joe spewing out libelous rants or issuing poten- tially criminal threats. Is a blog a valid part of “the press”? Assuming we agree that it is, when a blog does publish something libelous, who is responsible? The blogger,

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THE RIGHT TO PRIVACY

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TH E RI G HT TO PR I VAC Y

Many people are surprised when they learn that the right to privacy is not guar- anteed under the Constitution. Our legislature has filled this void by passing a number of laws protecting individuals from having their private lives exposed to anyone who cares to look. This is a sufficiently detailed subject that an entire chapter is devoted to it later in this book. For now it is only necessary to provide a general overview of the principles and list some of the key laws that affect the DFI.

who could be considered the reporter and insulated from indemnification? Or the ISP, who could be considered the publisher and therefore responsible for all contents it manages?

Since there has been relative silence on the part of the courts in this regard, many service providers take it upon themselves to filter content in an effort to avoid potential prosecution. Others are far more lenient. Examples of this are YouTube and LiveJournal.

YouTube provides a platform for people to showcase videos they make. YouTube is relatively careful about monitoring videos for pornographic content, hate messages, and so forth. Any video deemed unsuitable may be deleted without the owner’s noti- fication or consent. Conversely, LiveJournal had to face the threat of an advertising boycott before it purged its system of suspected pedophiles (Tushnet 2008). Then, when it did so, it deleted the accounts of many people who were members of a book club discussing Nabakov’s Lolita.

Another issue faced by ISPs is what to do when a subscriber is involved in the distribution of pirated intellectual property. The Digital Millennium Copyright Act (DMCA) basically provides the ISP a “safe harbor” from liability as long as it adopts and enforces specific policies regarding copyright infringement.

When faced with copyright infringement issues, the courts have frequently used the “dance hall proprietor versus landlord” argument. In the dance hall scenario, a dance hall owner hires a band to play. The band plays an entire mix of copyrighted songs without obtaining permission from the copyright holders of those songs. In this situation, both the band and the proprietor are considered to be in violation. This is because the band is committing the act, and the proprietor is vicariously involved because the proprietor has the control to stop the violation if he or she chooses. Additionally, the proprietor profits directly from the violation.

A landlord, on the other hand, is not held liable for such activities that occur inside of the premise where the violation occurs. The landlord does not have as much con- trol over what occurs once the renter takes possession of the property. Landlords lack sufficient control over tenants to be able to enforce rules.

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The first legal precedence for privacy laws can be traced to an article writ- ten in 1890 by Warren and Brandeis entitled The Right to Privacy (Warren and Brandeis 1890). In this article, the authors note that “new inventions” and technol- ogy threaten the personal lives of individuals. The new inventions of which they wrote were film cameras and the ability to publish actual photographs of people instead of mere line drawings.

For many years, cases involving privacy rights bounced around the courts. The principle finally benefited from a formal definition when The California Law Review published the article entitled “Privacy” by William Prosser. In this arti- cle, Prosser defined four specific areas of law pertaining to individual privacy. To quote from his article , these areas are

• Intrusion upon a plaintiff ’s seclusion or solitude, or into his private affairs • Public disclosure of embarrassing private facts about the plaintiff • Publicity which places the plaintiff in a false light in the public eye • Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness

(Prosser 1960, 389)

The discerning eye notes that there is no mention of “intrusion into the plain- tiff ’s hard disk or file system.” This, along with most other activities of the investi- gator, falls under the seclusion and solitude tort. Subsequent laws passed over the years have more precisely defined a person’s right to privacy. Among the prominent laws that contain privacy restrictions are

• The Fair Credit Reporting Act of 1970 • The Privacy Act of 1974 • The Equal Credit Opportunity Act of 1974 • The Electronic Communications Privacy Act of 1986 • Health Insurance Portability and Accountability Act of 1996 • The Gramm-Leach-Bliley Act of 1999 • Privacy of Consumer Financial Information; Final Rule (2000) • The Fair Debt Collection Practices Act of 2006 • The Family Educational Rights and Privacy Act of 2008

This is just a small sampling of the myriad of laws governing the subject. In addition, many states have their own statutes that may be more restrictive than federal legislation. Another thing to be cautious of is that laws are revised con- stantly and new ones are passed.

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THE EXPERT WITNESS

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TH E EX PE RT WITN E S S

An expert witness is “a person who is a specialist in a subject, often technical, who may present his/her expert opinion without having been a witness to any occur- rence relating to the lawsuit or criminal case” (The People’s Law Dictionary 2010). Generally speaking, any testimony that relates material not actually witnessed by the speaker is covered under a tenet called the hearsay rule. Except under very specific mitigating circumstances, hearsay is not allowable as evidence. The expert witness is one of those notable exceptions.

There is no regulatory agency that monitors “expert status” or any such thing as an expert certification. Courts do, however, specify the types of witnesses who can give testimony and the types of evidence that are admissible. These rules are covered in the Federal Rules of Evidence in criminal cases and the Federal Rules of Civil Procedure in civil cases. The two types of witnesses defined are eyewitnesses and expert witnesses. Eyewitnesses are those who had firsthand experience with at least one aspect of the crime. Expert witnesses were never there, and cannot offer any firsthand information at all, but have been accepted by the court as being qualified to testify about a specific technical aspect of the case.

Rules 702 and 703 of the Federal Rules of Evidence provide the guidelines for expert testimony. Rule 702 dictates when it will be allowed, and Rule 703 explains the bases for providing such testimony. Rule 702 states that expert testimony is allowable when “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue” (FRE 2009). Three conditions apply to allowing expert testimony:

• The testimony is based on sufficient facts and data. • The testimony is derived from reliable principles and methodology. • The witness can demonstrate that the principles and methodology have been

properly applied to the interpretation of facts.

There are two ways to become recognized as an expert witness. Either all par- ties involved in the case can agree in principle that the person being presented is an expert in the related field, or the judge can make a ruling determining that he or she recognizes the person as an expert. A key tool in determining a person’s qualifications as an expert is the curriculum vitae (CV). This Latin term means literally “course of life” and is a functional equivalent of a résumé.

In the final act, it is not the length of the alphabet behind a person’s name or the list of degrees boasted, and it is not even the CV that determines whether a person can sit an expert witness or not. It is the decision of the judge presiding over the case.

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Then there is the question of expert witness neutrality. Jensen (1993) quoted an unidentified lawyer as saying, “I would go into court with an uncommitted, objective independent expert about as willingly as I would occupy a foxhole with a couple of noncombatant soldiers.” This statement infers that at least this particu- lar attorney is unwilling to accept neutrality in an expert witness. Judges take a slightly different view. Bender (2002) quoted the Fifth Court of Appeals as having stated, “Experts whose opinions are available to the highest bidder have no place testifying in a court of law before a jury and with the imprimatur of the trial judge’s decision that he is an expert.” Perhaps the person hiring an expert witness should pay heed to another old quote, “Caveat emptor” (let the buyer beware).

CH A P TE R RE V I E W

1. Three different amendments to the Constitution affect how the forensic ana- lyst performs an investigation. List the three amendments and describe what individual rights each one impacts.

2. A man was brought to trial after employees at a computer repair shop dis- covered child pornography on his computer. He tried to get the evidence disqualified as the result of an illegal search, but the judge denied his motion. What was the reasoning behind the denial?

3. Why is it that the owner of a nightclub can be found liable for copyright infringement violations committed by the band playing on a Saturday night, but that the owner of the building from which the hall space is rented is not found liable?

4. Describe the hearsay rule in your own terms, and explain how it relates to the concept of an expert witness.

5. Which constitutional amendment guarantees an individual’s right to privacy, and how can those rights be enforced?

CH A P TE R EX E R C I S E S

1. Download and review Gramm-Leach-Bliley, HIPAA, and Sarbanes-Oxley. Each of these pieces of legislation have some commonalities and some major differences. What are the main commonly shared features, and how do they significantly differ?

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2. Search Google Scholar for a legal case that involves a warrantless search that was accepted by the court. Briefly describe the case, and explain how the search may have been considered allowable under constitutional law.

RE F E R E N C E S

Bender, R. 2002. Liability for the psychiatrist expert witness. American Journal of Psychiatry 159:1819–25.

Branzburg v. Hayes, 408 U.S. 665 (1972).

Federal Evidence Review (FRE). 2009. Federal rules of evidence. www. FederalEvidence.com (accessed December 16, 2009).

Jensen, E. G. 1993. When “hired guns” backfire: The witness immunity doctrine and the negligent expert witness. University of Missouri at Kansas City Law Rev. 62:185–210.

Prosser, W. 1960. Privacy. California Law Review 48(3):389.

The People’s Law Dictionary. 2010. Expert witness. http://dictionary.law.com/ Default.aspx?selected�700 (accessed January 22, 2010).

The United States v. Howard et al., 752 F.2d 220 (6th Cir. 1985).

Tushnet, R. August 2008. Power without responsibility: Intermediaries and the First Amendment. George Law Faculty Working Papers.

U.S. Constitution, Amendment Four.

U.S. Constitution, Article V.

USLegal. 2009. Probable cause and legal definition. http://definitions.uslegal. com/p/probable-cause/ (accessed January 14, 2009).

Warren, S., and L. Brandeis. 1890. The right to privacy. The Harvard Law Review (4)3.

http://www.FederalEvidence.com
http://www.FederalEvidence.com
http://dictionary.law.com/Default.aspx?selected=700
http://definitions.uslegal.com/p/probable-cause/
http://dictionary.law.com/Default.aspx?selected=700
http://definitions.uslegal.com/p/probable-cause/
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3 One of the motivating factors of the Revolutionary War was the general warrant. England maintained the philosophy that a man’s house was his castle and that a government official could not search without a warrant. Unfortunately, it was far too easy for representatives of the English Crown in Colonial America to get a warrant, and then the warrant was a writ of assistance, more commonly known as a general warrant. With such a warrant in hand, the official could ransack a person’s home looking for anything and everything that may have been of interest to the official. After America successfully seceded from British control, one of the first things our founding fathers did was establish in the Bill of Rights language specifically prohibiting unreasonable search and seizure. These rights were defined in the Fourth Amendment to the Constitution.

Unless otherwise stated in the warrant, the document must be exercised in “normal business hours,” and the executor of the warrant must announce his or her presence. Exceptions to these rules are the no-knock warrant and the after- hours warrant. These will be discussed in further detail later in this chapter.

Laws governing the acquisition and execution of search warrants have evolved and expanded over the years. It seems each year a new challenge to Fourth Amend- ment interpretation reaches the courts. In the wake of 9/11, it became even more difficult for average investigators to understand their own rights and responsibili- ties as the Patriot Act expanded some of the government’s right to act. Add to this the fact that different courts have interpreted the Fourth Amendment in different ways, and it is understandable that it gets so confusing.

Se a rc h Wa r r a nt S a n d Su b po e n a S

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chapter 3 Search WarrantS and SubpoenaS

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di Sti n g u i S h i n g b e t W e e n Wa r r a nt S a n d Su b po e n a S

What is the difference between a search warrant and a subpoena? While both per- form similar functions, they are quite different in scope and in execution. A search warrant is an order issued by a judge that gives government officials express permis- sion to enter a specifically defined property with the intent of searching the prem- ises for evidence of a specific crime. To convince a judge that a warrant is in order, an investigator must show two things. First there must be probable cause. Probable cause consists of a statement (an affidavit) filed by the government first stating that it believes with reasonable certainty that a crime has been committed, is being com- mitted, or is about to be committed, and second, explaining in as much detail as possible what evidence already exists that such a crime exists.

Along with probable cause, the request for a warrant must fulfill particular- ity requirements. This fascinating phrase simply means that the request must identify with reasonable accuracy precisely what location is to be searched, what materials or evidence are being sought, and what may and may not be seized. Traditional search restrictions require that officers search only in places defined by the warrant, looking for items that fall within the descriptive parameters of the warrant, and they can look only in spaces that could conceivably hold the object being sought. In other words, if an investigator is looking for a stolen car, he may not look in the driver’s jewelry box.

When a warrant is issued, it is done so by a judge, at the request of a government official or agency. It is not necessary for the target of the search to be present or to even be aware that the warrant is being requested. More often than not, the person or persons subject to the search first learn of the warrant when it is handed to them. The warrant will occur whether the victim likes it or not. There is no challenge for a warrant presented at the door. It gives the government permission to enter.

A subpoena is an order to appear before the court or an order to produce doc- uments or other evidence as defined in the subpoena. A subpoena can be issued that demands both the presence of the person and that the person bring materials with him or her. This type of subpoena is known as a subpoena duces tecum. The Latin phrase means “to bring with you under penalty of punishment.” Unlike a warrant, the target of a subpoena can respond with a motion to quash the subpoena. If the motion is successful, the order is rescinded. Valid reasons for quashing a subpoena include (Portman and Jacobs 1998)

• Insufficient time to respond to the demands listed. • Subpoena calls for the disclosure of protected information.

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What iS a Search and When iS it LegaL

• Compliance places an undue burden on the recipient. • Compliance requires that the recipient travel excessive distance. • Subpoena requests information not relevant to the matter of litigation. • Information requested is readily available from other sources.

Subpoenas can be issued by either federal or state courts. A state subpoena cannot be enforced upon an individual who resides in another state and is not a party of the litigation. A federal subpoena is valid regardless of where it is issued or where it is enforced within the legal jurisdiction of United States government.

Wh at iS a Se a rc h a n d Wh e n iS it Le ga L?

Throughout the remainder of this chapter and elsewhere in the book, the words search and seizure will be used repeatedly. The definition of what constitutes a search is a fairly broad interpretation. Most case law interprets any entrance into a home or office as a search, whether the investigator actively “looks” for something or not. USLegal defines a search as an examination of a person’s body, his or her prop- erty, or any area that another reasonable person would consider private (USLegal 2010). Therefore, examining a person’s telephone constitutes a search. Simply look- ing through the window of a private home or office is “searching” the place.

The U.S. v. Carey (1999) police officers executed a warrant to search a com- puter for evidence of drug trafficking. While performing the search, the officers came across a large number of images they considered to be child pornography. Using a doctrine known as “plain view,” they extended their search to include child pornography and charged Carey with possession of such materials. The plain view doctrine states that items seen in the course of an investigation that exist in plain view can be examined without need for a search warrant. On appeal, the court disagreed with this interpretation, saying that the files were only evident as pornographic in nature if opened. The images were excluded as evidence, and the pornography charges didn’t stick.

Seizure is the physical acquisition and confiscation of items found during the search. It can also refer to the detention of a person. Typically, warrants issued by the court grant both the right to search a person or property and the right to seize any evidentiary materials found. The permission to search granted within the war- rant may be somewhat generic, identifying no more than an address and whether to search the entire premises or just specific areas of the property. The instructions as to what may be seized by the search team are generally more specific.

The question of when it is legal is more difficult to answer. Clearly, any time a duly appointed justice of a state or federal court issues a warrant to perform the

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search, the search as defined in the warrant is legal. If the search exceeds the scope of the warrant, then it becomes an illegal search. Also, if the search is performed by a private citizen who is not acting as an agent of the government, there is no Fourth Amendment protection against the results of the search. There may be other legal remedies that the victim of the search may pursue. That is a matter for that person to discuss with a competent attorney. However, the court is unlikely to disallow the evidence found under constitutional grounds.

Just because a warrant isn’t issued, that does not necessarily mean that a search conducted without one is illegal. There are several circumstances where warrant- less searches are allowed by law. To be illegal under any circumstances, a search must violate “a person’s reasonable expectation of privacy” (DOJ 2008). Reasonable expectation of privacy is determined by two factors:

• Does the subject’s behavior indicate an expectation of privacy? • Is that expectation one that society is prepared to accept as reasonable?

How does a person’s behavior indicate his or her expectation? A person run- ning naked down the street certainly has no cause to complain if people point and laugh. That same person in the privacy of his shower most certainly does. This is an exaggerated example, but it makes the point. That is where society’s acceptance comes into play. The man running down the street is something that the average citizen considers a bit strange. Society does not expect him to assume his public display is an invasion of his privacy, even if in his own mind he thinks he’s on a private beach. Unfortunately, most situations are not so easily deter- mined. As DOJ points out, there is no bright line that defines privacy. A few examples of situations where a person can expect privacy are defined in the fol- lowing decisions:

• Payton v. New York, 445 U.S. 573 (1980): Privacy inside a person’s home is guaranteed, even in the process of making an arrest. A warrantless arrest is specifically unconstitutional.

• Katz v. United States, 389 U.S. 347 (1967): Privacy inside a closed telephone booth is assumed because the closed door of the booth gives the person a reasonable expectation of privacy.

• United States v. Ross, 456 U.S. 798 (1982): Privacy of the contents of opaque containers is different from the privacy (or lack thereof) in an automobile. A closed container within the automobile is not subject to search without a warrant even if reasonable cause opens the door to an automobile search. This closed container clause has been interpreted to include computers,

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What iS a Search and When iS it LegaL

computer media, and other items that must be mounted on a system before they can be viewed (see below).

• United States v. Barth, 26 F. Supp. 2d 929 (1998): Privacy of the contents on a computer’s hard drive is essentially the same as that of a closed container.

• United States v. Reyes, 922 F. Supp. 818 (1996): Privacy of the contents of a paging device is essentially the same as that of a closed container.

Conversely, courts have also made some notable decisions about where a reasonable expectation of privacy does not exist:

• Oliver v. United States, 466 U.S. 170 (1984): Activities conducted in an open field dispel any reasonable expectation of privacy, as anyone—not just legal authorities—can view their activities.

• California v. Greenwood, 466 U.S. 35 (1988): Garbage deposited outside of a person’s property has been left exposed to the view of anyone who looks.

• Rakas v. Illinois, 439 U.S. 128 (1978): Privacy does not exist inside of a strang- er’s house entered with intent to commit robbery. Constitutional protection enjoyed by the owner does not vicariously pass on to an intruder.

• United States v. David, 756 F. Supp. 1385 (1991): A password openly displayed on a computer monitor falls under the plain view exception.

• United States v. Lyons, 992 F.2d 1029 (1993): Privacy of the contents of a computer the individual has stolen does not pass from the owner to the thief.

As mentioned in Chapter 1, “The Anatomy of a Digital Investigation,” the digital forensic investigator has a more complex formula for searches. The war- rant that allows the search of the premises may specify that all computing devices, communication devices, and so forth may be seized. However, after transporting these devices back to the lab for examination, it is equally necessary to have a warrant that identifies what information stores may be searched. A key example is when a warrant is issued to search for information regarding financial fraud of some sort. If, during the course of the search, evidence is uncovered that suggests another crime—such as the distribution of child pornography—a new and sepa- rate warrant must be issued.

Any rights to privacy regarding stored electronic information can be relin- quished when control of the device or of the data is relinquished to a third party. An individual who brings a computer in for service runs the risk that the repair tech- nician might stumble across evidence of criminal behavior. If that person reports the evidence to authorities, who subsequently obtain a search warrant, there is no

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recourse against the repairman. Data that is copied to a CD and shipped across the country remains private as long as it is in transit. Once the recipient takes control, the rights of the original sender can vary, depending on circumstances. If circumstances dictate that the “sender” retains control of the “package,” then expectation of privacy is retained. United States v. Most (1989) allowed that when a person leaves a closed plastic bag with a third party, intending to retrieve it in the near future, then the expectation of privacy is retained. Conversely, in United States v. Horowitz (1986), an e-mail message that had arrived at its destination did not afford privacy protection to the original sender of the message.

Aside from the “expectation of privacy” issue, there are other exceptions that allow a warrantless search. These will be discussed later in this chapter.

ba S i c eL e m e nt S o f obta i n i n g a Wa r r a nt

First and foremost—only a judge can issue a search warrant. It can be a federal, state, or territorial judge, or it can be a U.S. magistrate judge. The warrant can be issued only to a legally authorized law enforcement official. To obtain a warrant, a law enforcement official will file a written statement called an affidavit that must show

• Probable cause • Particularity of place • Particularity of items to be searched

When considering the warrant, a judge can refuse to issue on the basis of any one or more of these requirements. Probable cause was covered in detail in Chapter 2, “Laws Affecting Forensic Investigations.” To recap, it basically says that the requestor has a reason to suspect that a crime has been committed, is being committed, or is about to be committed and that evidence of such crime exists at the place to be searched. Federal warrant requirements are spelled out in Title 18, Part II, Chapter 205 – Searches and Seizures.

Special circumstances may prevent an official from being able to provide an affidavit in a timely manner. Rule 41b of the Federal Rules of Evidence (DOJ 2008) also allows a judge, at his or her discretion, to issue a warrant based on sworn tes- timony or by recorded testimony. When an applicant is requesting a warrant based on sworn testimony, the judge must place the applicant under oath and make a verbatim recording of the testimony given.

Once issued, a warrant is good for only a limited period of time. Unless oth- erwise specified, Federal Rules of Evidence specifies a default expiration of ten days from the date of issuance. In addition to the particularity issues mentioned

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previously, the warrant will also specify a magistrate judge to whom the warrant must be returned once it has been executed.

The officer executing the warrant must record the exact time and date the warrant was carried out. If any items are seized during the search, the target of the warrant must be provided a copy of an inventory of everything taken. Another copy of this inventory must accompany the warrant when it is returned to the court. Whoever carries out the warrant must issue a receipt for all items seized along with the inventory.

A defendant who is subject to a search and seizure action initiated by a legally executed warrant has no recourse against the search. However, the defendant may have counsel present during the search. If there is any reason to suspect that the warrant was issued improperly, the defendant can issue a motion to suppress any evidence uncovered by the search.

no -K n o c K Wa r r a nt S

Unless otherwise stated, an officer executing a search or arrest warrant must abide by the knock and announce rule. According to this general rule, when executing a warrant, the officer should knock, announce the intention of the search team, and allow residents of the location being searched time to respond to the knock. The Supreme Court identified key advantages of knock and announce in Hudson v. Michigan (2006) as protecting the safety of the officers against defensive reaction by the defendants and protecting property from damage. Justice Scalia noted in his opinion, “Until a valid warrant has issued, citizens are entitled to shield their persons, houses, papers, and effects” (Hudson v. Michigan 2006). His opinion rec- ognizes the fact that, lacking knowledge of a pending warrant being legally served, residents of the building may proactively defend their position.

The courts recognize that sometimes circumstances require that suspects not be notified of a pending search. If there is reason to believe that suspects may aggressively repel a search, that the subjects of the search are likely to escape, or that evidence is likely to be destroyed in the time it takes for officers to wait for a response, the courts may issue a no-knock warrant. This gives officers serving a warrant specific permission in writing to break down the door and enter unan- nounced. Generally speaking, in order to obtain a no-knock warrant, officers requesting the document must show reasonable suspicion that one of the afore- mentioned conditions exists.

In cases where digital information is a primary target of the search, there may be reason to believe that the suspect may employ a “kill switch.” This colorful term refers to any mechanism, hardware or software, that can quickly and effectively

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