Abstract
Digital forensics has become an indispensable component of modern criminal investigations, offering tools and techniques to collect, analyze, and present electronic evidence in legal proceedings. This paper examines the interrelationship between digital forensics and law, focusing on the integration of human rights principles into investigative practices. As digital technology becomes pervasive, safeguarding fundamental rights such as privacy and due process during forensic investigations is imperative. The study emphasizes the need to balance the pursuit of justice with the protection of civil liberties, as enshrined in international human rights frameworks.
The paper explores the process of criminal investigations in digital forensics, detailing key stages such as identification, acquisition, preservation, analysis, and reporting of digital evidence. It underscores the importance of maintaining the integrity and chain of custody for such evidence to ensure its admissibility in court. Particular attention is given to the role of the National Human Rights Commission (NHRC) in monitoring and guiding digital forensic practices to prevent violations of individual rights during investigations.
A critical analysis of digital evidence highlights challenges related to authenticity, reliability, and compliance with legal standards. The study also addresses technical and procedural limitations, such as encryption, data tampering, and jurisdictional conflicts, that investigators must navigate. In addition, it discusses protocols for the proper filing of digital evidence in court, emphasizing adherence to legal and ethical guidelines to uphold judicial fairness and transparency.
By providing a nuanced perspective on the convergence of digital forensics, law, and human rights, the research underscores the significance of establishing a robust legal and regulatory framework for digital investigations. It advocates for the development of standardized procedures and the adoption of advanced forensic tools to strengthen the evidentiary value of digital artifacts.
This paper aims to contribute to the ongoing discourse on the ethical and legal implications of digital forensics, offering insights for law enforcement, legal practitioners, policymakers, and human rights organizations. It concludes by proposing recommendations for harmonizing technological advancements with legal imperatives to ensure a just and equitable approach to criminal justice in the digital age.
Keywords: digital forensics, digital evidence, admissibility of digital evidence, investigation process, BNS
Introduction
In the paradigm shift to technological advances, where mostly everything seems to be dependent on the internet, digital forensics comes into the picture to regulate the framework. Digital forensics can be defined as the process of employing scientific principles and processes to analyze electronically stored information and determine the sequence of events that led to a particular incident. In this digital age, it is important for researchers to become aware of the recent developments in this dynamic field and understand the scope of the future. Digital forensics is a branch of science that involves the application of scientific principles to the investigation of artifacts present in one or more digital devices in order to understand and reconstruct the sequence of events that must have transpired in generating the said artifacts.
Digital forensics pertains to acquiring, examining, analyzing, and possibly documenting and presenting these artifacts and the reconstructed sequence of events as evidence in a court of law. Digital forensics developed as an independent field in the late 1990s and early 2000s when computer-based crime started growing with the increasing usage of computers and more so, the Internet. In early days, it was called computer forensics since the evidence collected was restricted to computers. However, in recent years, with several technological advances, this restriction is no longer true. Consequently, the process of conducting forensic investigations involving contemporary digital evidence has become more challenging. 1 Digital forensics: the process Digital forensics is a multi-staged process starting with the identification of digital media from a scene (possible criminal) as potential evidence to the stage where it is presented as evidence by an expert witness in a court of law. The very first stage of the digital forensic process is the identification of relevant digital evidence. This involves the identification of one or more sources of digital storage capable of storing digital information associated with the investigation at hand. Some examples of hardware that can provide digital evidence include hard disks on computer systems, random access memory cards, USB and other external sources of secondary storage, mobile phones, PDAs, and so on. Once identified, evidence is acquired from the devices and forensically preserved. Acquisition refers to the process of creating a binary, bitwise copy of all digital media identified as relevant in an investigation. This process ensures the preservation of evidence, with standard hash functions like MD5 or SHA1 used to verify the integrity of the digital evidence. In digital forensic investigations, investigators focus on obtaining digital records for examination. These records can take many forms, such as computer documents, contact lists, call logs, mobile signal strength traces, audio or video files, email exchanges, network traffic patterns, or records of virus activity. Collectively, digital evidence can be categorized into the following:
a. User data
b. Metadata associated with user data
c. Activity logs
d. System logs
User data includes information created, modified, or accessed by users involved in an investigation. Metadata provides contextual information about how, when, and by whom user data was created, modified, or accessed. Activity logs document user actions recorded by systems or applications, while system logs track deviations in system behavior due to user actions.
After acquiring digital evidence, it is essential to create read-only copies to ensure the original data remains unaltered during forensic analysis. All examinations are conducted on these copies to maintain the integrity of the evidence. Specialized forensic tools are then used to analyze the digital evidence. These tools often provide a file system abstraction, enabling investigators to examine the evidence for traces of relevant information. This phase, known as evidence examination, involves inspecting and indexing the digital evidence to facilitate searches.
forensic examination as the process of extracting and preparing information from digital evidence for analysis. In some cases, this examination reveals hidden or implicit information that must be identified and analyzed. This step is referred to as evidence discovery.
Once the examination and discovery phases are complete, forensic analysis begins. This phase involves applying scientific methods and critical reasoning to analyze the evidence and reconstruct the sequence of events related to the crime under investigation. forensic analysis as addressing key investigative questions—what happened, who was involved, why it occurred, how it transpired, and when and where it took place.
Each stage of the process is meticulously documented, and this documentation is submitted as evidence in court. The presentation of digital evidence may also require an expert witness to testify, providing context and credibility to the findings.
India’s legal framework has undergone significant transformation with the introduction of the Bhartiya Nyay Sanhita (BNS), Bhartiya Nagarik Suraksha Sanhita (BNSS), and Bhartiya Sakshya Adhiniyam (BSA). These laws aim to modernize the criminal justice system by making it more efficient, effective, and accessible. Leveraging technological advancements, these reforms have streamlined judicial processes and enhanced citizen protection.
The overarching objective is to establish a legal system that is fair, just, and aligned with the needs of the digital era and the diverse requirements of society. Understanding the specific changes and their implications is essential, as they redefine approaches to evidence, investigations, and the categorization of offences, thereby reshaping India’s judicial landscape.
Progress in Digital Forensics in India
With the rise of technological innovation and evolving threats, the significance of digital forensic evidence has grown rapidly. The new legal framework highlights the use of audio-video technology to assist police in crime scene investigations. The term “audio-visual electronic means” encompasses activities such as video conferencing, recording identification procedures, conducting searches and seizures, transmitting electronic communications, and other state-sanctioned applications.
A notable provision under Section 105 of the BNSS requires that all searches and seizures be recorded using audio-video technology. Police officers must document these processes, and the recordings, along with the seizure list, must be submitted promptly to the district magistrate, sub-divisional magistrate, or a first-class judicial magistrate.
Key developments under the BNSS include:
- Section 176(3): Forensic evidence collection is mandatory at crime scenes for offences punishable by seven or more years of imprisonment.
- Section 176(1): Statements from rape survivors must be recorded at a location of their choosing, ideally by a female officer and in the presence of a parent, guardian, or social worker. These statements may also be documented using audio-video technology, such as mobile phones.
- Section 180(3): Witness statements can be recorded using audio-video means at the discretion of the police officer.
- Section 54: During test identification parades, statements from identifiers may be recorded via audio-video technology, especially if the identifier has a physical or mental disability.
- Sections 254, 265, and 266: In session and warrant cases, courts may permit audio-video technology to be used for recording evidence or witness statements at state-designated locations.
- Section 308: Accused individuals may be examined through electronic means, such as audio-video conferencing, at locations specified by the state government.
These advancements reflect India’s commitment to integrating digital tools into its legal processes, ensuring efficiency and transparency while adapting to contemporary challenges
The Path Ahead
The BNSS represents a significant step forward in incorporating digital forensics into India’s legal system. By emphasizing the importance of audio-visual evidence and establishing clear protocols for its collection, storage, and presentation in legal proceedings, the legislation paves the way for a more effective approach to tackling cybercrime. However, to fully leverage the potential of digital forensics, several areas require further attention and development.
There is a pressing need for law enforcement officials, legal professionals, and the general public to gain a deeper understanding of digital forensics and its role within the legal framework. Strengthening collaboration between law enforcement agencies, businesses, and academic institutions is essential to drive innovation, research, and skill development in the field. Additionally, given the global nature of cybercrime, effective international cooperation is critical for collecting evidence and prosecuting offenders.
By addressing these challenges, India can position digital forensics as a cornerstone of its efforts to uphold the rule of law and ensure justice in the digital era.