By Jeremy A. Kaplan
Published November 19, 2011 | FoxNews.com
Last week the Supreme Court took a first stab at addressing how such evidence can be used, hearing arguments from the Justice Department defending the use of GPS devices planted on suspects’ vehicles. But that’s just one aspect of a growing body of data: From digital photographs to cellphones to emails and Word documents, we all create a trail that law enforcement agencies are increasingly using to put crooks at the scene of their crime.
Heck, even the Doobie Brothers are doing it.
Jeffrey “Skunk” Baxter a founding member of Steely Dan (he played guitar on “Rikki, Don’t Lose That Number”) and a current member of The Doobie Brothers, is also a contractor for a number of U.S. government agencies and an advisor on terrorism, cyber-warfare and forensic analysis.
“I want your help,” Baxter told attendees at Paraben’s Forensic Innovations Conference (PFIC), a leading conference on digital investigations in Utah that wrapped up Nov. 9. It called for the increased use of digital forensics in courtrooms and cases.
But with increasing prevalence comes an increasing risk of abuse. The Electronic Privacy Information Center (EPIC) told the Supreme Court last week that information from GPS devices could easily be abused.
“The proliferation of GPS tracking technology creates … detailed travel profiles of American citizens,” the group wrote. “Law enforcement access to such information raises the specter of mass, pervasive surveillance.”
Victor agrees. “Attorneys are very good at taking digital evidence out of context and then convincing a jury of the guilt of someone based on it,” he said.
In 2002, “Jack” was sent to jail after police found pornographic images on his home computer. Security experts later told Wired News that the digital data had been mishandled: They suggested it could have been put on his computer remotely through what’s called a “browser hijacker” — a malicious bit of software that changes browser settings and can easily be built to store data on a PC.
As with DNA evidence, it can be hard to derive intent when examining a piece of digital evidence, explained Sgt. Kevin Stenger, computer crimes supervisor with the Orange County Sheriff’s Office in Orlando, Fl.
“Exactly how did a criminal use a smartphone in the commission of a robbery, if at all?” Stenger told Foxews.com. “Was he using it to look up an address, to take pictures of the potential robbery site? Was he using it to text message other members of his crew? Did he use it when the robbery was in progress?”
But when properly used, GPS data, cell phone records and even “metadata” from digital photos are admissible in a court of law. And digital DNA is everywhere — frequent shopper cards, EZPass toll technology, smartphones and more.
So can all that gear “testify” against you? It comes down to a question of reasonable use, said Andrew Hildebrand, associate dean of DeVry University‘s College of Business and Management and an expert in computer forensics.
“What is public? Where is the expectation of privacy coming in?” Hildebrand told FoxNews.com.
The digital devices we carry create an unprecedented array of information about us, he noted, and rules are only now being created.
“We’re in a new era of technology,” he said. “Where are the limits for that, within the bounds of the Constitution?”
A growing number of classes around the country aim to probe these issues, training a new generation of detective. The University of Central Florida, for example, created an interdisciplinary program in 2008 to offer a master of science in digital forensics.
The program has over 100 students, coordinator Sheau-Dong Lang said, and teaches technical detection, forensic sciences and criminal justice, as well as current issues in cyberlaw. Twenty-seven students graduated in 2008; the school could admit as many as 60 in 2012.
Even the tools these cybersleuths will use are still under development — and they’re neither simple nor cheap. At the PFIC conference, experts explored new software and wrestled with the increasing amount of digital evidence that prosecutors and law enforcement sift through today.
“Like DNA, the devil’s in the details,” Victor said. If information isn’t properly recorded and a chain of custody preserved, it’s all too easy for data to become corrupted or even falsified.
That at least may change.
Software firm Katana Forensics announced at PFIC that it would soon release a free, “light” version of its Lantern software package, a $600 forensic tool that digs data out of iPhones and is sold only to law enforcement and government agencies. It should make digital forensics analysis more accessible.
As digital DNA becomes a more common tool in court, potential abuses may grow as well, at least until case law is firmly set in place.
“Yes, we should be worried, but not to the point of paralysis,” Hildebrand told FoxNews.com.
“But this is a national dialog that needs to take place.”