This section provides access to publicized research dissemination for the Records in the Cloud project.

Project Description

This research focuses on the admissibility of digital evidence at a trial or other legal hearing. Documents and other information objects created in the digital environment are often still interpreted according to our familiarity with and understanding of a centuries-old print culture. But the digital environment is dramatically different from the world of print, and our expectation that traditional structures will apply in the digital realm may have unintended consequences. Nowhere is this more evident than in the legal system. In legal proceedings, material that cannot meet all admissibility requirements is inadmissible as evidence. If judges, lawyers, police and information professionals do not fully understand digital information, and the law does not keep up with digital technologies, legal proceedings may fail to meet an acceptable standard of accurate fact-finding, fairness and justice. The challenges imposed by the digital environment have led the Hon. Paul Grimm (Chief United States Magistrate Judge for the United States District Court for the District of Maryland) to state, "It is not a frivolous question to ask, 'Do the existing rules of evidence adequately deal with admissibility of electronic evidence?'" (Grimm, Ziccardi, and Major 2009). Previous research conducted by this team has shown that they do not. Thus, this project aims to determine what needs to be done to address this issue by systematically investigating the following questions:

1. can definitions pertaining to documentary evidence in the network of Canadian statutes and regulations be revised and harmonized to remove ambiguity and inconsistency and make them applicable also to information in digital form? If yes, how?
2. can a standard for authentication of digital evidence be developed? If yes, what should it include?
3. can different types of digital evidence be meaningfully categorized so as to be admissible under a standard exception to the hearsay rule? If yes, what would a taxonomy of digital entities look like?
4. can a definition be articulated, or an alternative proposed, for the best evidence rule that would allow the easy identification of the most trustworthy form of digital evidence? If yes, which would it be?
5. what is a meaningful expectation of privacy regarding searching digital devices to extract potential digital evidence?
6. can procedures be developed for the long-term trustworthy preservation of documentary evidence used in trials and other proceedings? If yes, what would the terms of reference be?

Theoretical Framework

Recent and ongoing research by Sheppard and Duranti approach digital evidence through the lens of archival science and diplomatics, centuries-old disciplines that study, respectively, the nature, structure and management of records aggregations, and the genesis, formal characteristics, transmission and juridical nature and consequences of individual records. This project requires understanding of digital records in complex systems, their authenticity and means of authentication, and their long-term preservation. The concepts developed by the InterPARES and the Digital Records Forensics projects constitute the necessary foundation for this research, which is grounded in the theoretical foundations of evidence law (the law that governs the admissibility of documentary evidence), supported and interpreted through the concepts of archival science and diplomatic theory, which define and prescribe the creation, maintenance and preservation of reliable, accurate and authentic records as the documentary traces of facts and transactions. The theory of evidence depends on the twin concepts of 'probative value,' and 'prejudicial effect' within the goals of protecting the accused and guaranteeing a fair trial. Evidence of probative value will be admitted at trial, subject to rules of exclusion that have developed to balance any undue influence that evidence may have. Archival science offers an understanding of the concept of "record" as the byproduct of a practical activity, set aside for further action or reference, and the concepts of authenticity and reliability. Diplomatic theory allows isolating the attributes of a record necessary to support a presumption of authenticity and, in the absence of a complete set of these attributes, measure the degree of authenticity.

Objectives

1. To develop a taxonomy of types of digital evidence;
2. To develop criteria and methods for establishing the accuracy and authenticity of digital entities either within their original digital environment or extracted from it, for the purposes of e-discovery, submission of evidence to the court, and authentication for admissibility;
3. To develop criteria and methods for determining when digital entities produced by different digital technologies fall under the business records exception to the hearsay rule (in relation to their "recordness" and to their ability to convey reliably, human statements made outside the court);
4. To develop criteria and methods for identifying the most authoritative and trustworthy manifestation of a digital entity in the absence of an original, for the purpose of articulating a new rule able to fulfill the function of the best evidence rule;
5. To develop procedures for documenting the chain of continuity for digital documentary evidence from the moment it is identified to the moment it is admitted as evidence;
6. To develop guidelines for maintaining the authenticity (i.e., identity and integrity) of digital documentary evidence for the duration of the case to which it relates, and for as long as it is needed or required after the related trial is concluded, irrespective of technological obsolescence;
7. To propose new and revised rules for the law of evidence that are clear and consistent with the comparable rules of other common law countries, can be adopted across Canada, and will endure, with enough flexibility to accommodate future changes in digital technology and in the characteristics of its products.

Methodology

A key part of the methodology will be gathering feedback from the two types of stakeholders, CSPs and users, not only in the structured way provided by the focus groups in third year of the research, but also informally though the delivery of workshops, continuing education opportunities, and papers at conferences.

Year 1: Data Collection

We will collect and analyze data iteratively. Literature reviews and other relevant products of the Digital Records Forensics project and the Knowledge Synthesis project will form a basis from which to start. The research team will build upon these resources through more tightly focused literature searches including relevant case law and legal opinions, position papers, conference presentations, law reports containing court decisions, legal journals, and grey literature. Although the locus of our research will be Canada, much if not most of the literature will derive from the United States. Jurisdictional similarities and differences will be carefully considered and documented. Analysis of the literature will guide the team in developing a questionnaire aimed at establishing shared beliefs about the challenges presented by the law of evidence as it exists and the best ways of overcoming them. The team will invite members of the legal, judicial, and law enforcement professions, as well as selected members of the public (e.g. auditors, journalists and scholars) from across Canada, to respond to this questionnaire, which will be administered through the research web site. Responses to the questionnaire will be coded and analyzed using NVivo Qualitative Research Software, and follow up interviews will be conducted with selected survey respondents.

Year 2: Analyze Data and Draft Results

Triangulation of data from the interviews and questionnaires will be sought through document analysis conducted on: a) case law, and b) theoretical literature in leading law journals. On the basis of our findings, the team will draft the criteria, methods, and procedures identified within each of the research objectives listed above.

Year 3: Review, Test, Reassess, And Conclude

The team will assemble focus groups to discuss, criticize and make suggestions about the draft material. Based on this feedback, we will edit the criteria, methods and procedures and will draft new sustainable admissibility guidelines for digital evidence.