E-evidence

(First of two parts)

Evidence” was, for me, a very interesting subject at the UP Law School. The criminal mind can be very vicious and ingenious at the same time. And evidence that is discovered and generated in criminal and civil proceedings can be as interesting as it is shocking. Whether testi-monial or documentary, evidence sometimes does overwhelm.

What is now called Internet legal evidence can be quite complex, however. The international rules have not yet been drawn, but the global community certainly has recognized the fact that the Internet is now, out of sheer necessity, an important evidentiary source. Of course, it differs from the traditional evidence that I had studied years ago.

As a general rule, Internet evidence is any information created or stored in digital form whenever the Internet is used to achieve a task. And it may contain information that exists in no other form. Hence, it is correct to say that Internet evidence springs into existence whenever a machine or an entity accesses the Internet, or when the Internet, in response to a signal, generates information. Internet evidence or e-evidence is information in the form of databases, operating systems, application programs, e-mail, and more.

It is currently recognized that the back-up requirements of the Internet and its consequent combination of data capture capacity and multiple e-data storage site locations make the Internet an excellent evidentiary source. Its extent and magnitude can be just as imponderable. The computer, getting smaller as the technological market advances, is a wonder machine. We all know that it can transmit the entire library of the US Congress in a matter of minutes halfway around the world.

We must bear in mind that within the context of a criminal situation, the e-crime’s modus operandi can be very complex, so that it is a difficult process but it is a legal discipline that litigation lawyers have to master as e-criminal law evolves.

The Internet captures more than e-mail communications, and e-voicemail is a rapidly expanding Internet application. The Internet thus electronically records telephone messages that can be forwarded, replied to, and saved.

By and large, major conventional voicemail providers are in the midst of operating or migrating to an Internet platform. In the past, when conventional voice mail was a rare business tool, it generally escaped the dragnet of all kinds of litigation. Now, e-voice mail will become a primary target in the discovery process of e-evidence.

Other technologies that have recently arrived in the marketplace, such as e-video mail, which is simply e-voice mail with real-time pictures, have become great business tools. Such new forms may dramatically impact on the discovery process.

E-mail and other machine-to-machine routing information all leave behind electronic trails. A cursory look at an Internet e-mail message reveals a large body of information that looks like names and codes at the beginning of each and every message. These imbedded communiqués are called "headers," which identify the route the message traveled. These headers also identify other recipients, and the time, date, and location from which the message was sent.

And, as you already know, they also contain information about all the computers that the message visited before it was delivered. The basic transmission and back-up requirements of the Internet mean that each of those computers store every message that passes through it in a form that is easily read by other Internet users.

Prof. Henry Langley (mentioned in an earlier article), who visited the Philippines in January and was my guest for dinner, related to me, among other interesting materials, a story about Oliver North and US National Security Adviser John Poindexter at the time of the Iran-Contra affair. They found out that deleting an e-mail is not the equivalent of shredding a document. In the former case, although no shredded paper documentary information was ever recorded, computer technicians using back-up tape and recovery software discovered and recovered e-mail messages that had been deleted.

Contrary to popular belief, e-evidence is no more susceptible to manipulation than conventional evidence. I subscribe to Langley’s belief, which few litigation specialists would take exception to. This answers the four questions that four e-mail messages had inquired about, coming from Dr. Jaime Resurrecion, Attys. Simeon Murphy Santos, and Leonides R. Abad, and Quezon City entrepreneur Carmencita Mapalad.

The Internet can also be a discoverable source of information regarding specific entities, clients, and adverse parties. If you are a party in a litigation, you would be well advised to use the Internet to discover what others could discover about you. The Internet can serve as an evidentiary source of information about the adverse party’s systems, procedures, data sets, and organizational structure. All that e-information should be used to determine if e-data are relevant to a particular litigation. The Internet may also be a source of data indirectly related to the matter at hand because it contains digitized editions of newspapers, magazines, and press releases.

Very truly, the magnitude of e-evidence is as expansive as it is imponderable.

(To be continued)

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