Digital Evidence and Electronic Signature Law Review

Editorial

Article

Rethinking the e-signatures directive: on laws, trust services, and the digital single market

Hans Graux sets out his views about electronic identification, authentication, and electronic signatures in the light of the decision of the EU to conduct a public consultation on these topics and related trusted services or credentials in the light of the SMART 2010/008 ‘Feasibility study on an electronic identification, authentication and signature policy (IAS)’.

The legal regulation of electronic evidence: a pending necessity

Eduardo de Urbano Castrillo, a Judge of the Technical Advisory Body of the Supreme Court of Spain, considers whether it is necessary to regulate the admission of digital evidence in criminal proceedings, a paper originally published in Spanish from the legal journal La Ley Penal.

Federated identity management: enabling legal control over digital property in the cloud

Timothy S. Reiniger and Dr Richard J. Hansberger review the rapid development of cloud computing services, and issues relating to authenticating identity remotely and the authority and control over proprietary data and information, and whether Federated Identity Management is capable of resolving the problems.

Electronic evidence in Hungary: a general overview

Dr. Gusztáv Bacher, Dr. Gábor Faludi (senior), Dr. Gábor Faludi (junior), Dr. Anikó Keller, Dr. Dávid Kerpel, Klara Loranger, Dr. Bence Molnár, and Dr. György Wellmann up-date their chapter on Hungary from International Electronic Evidence, published by the British Institute of International and Comparative Law in 2008.

Electronic evidence in Latvia: a general overview

Agris Repšs up-dates the chapter originally written with Ilze Znotina on Latvia from International Electronic Evidence, published by the British Institute of International and Comparative Law in 2008.

Electronic evidence in Swiss Criminal Procedure

Bertrand Perrin, Marc Rémy and Romain Roubaty outline how the Federal Government has amended the rules of the Penal Code and the Law on International Mutual Assistance in Criminal Matters to bring them into line with the Convention on Cybercrime, together with the Swiss Code of Criminal Procedure, which entered into effect on 1 January 2011.

Electronic evidence in control of and adversely affecting the opposing party: a comparative study of English and Norwegian Law

Maria Astrup Hjort provides a comparative analysis of the way that the Norweigan and English civil law procedures deal with electronic evidence, including disclosure, what constitutes a reasonable search and sanctions for failing to provide evidence.

How bank depositors are protected in Japan

Professor Hironao Kaneko sets out the changes in the burden of proof between banks and their customers, partly because of the changes in technology and the fraud associated with ATMs, and also provides an unofficial translation of the The Depositor Protection Act 2005.

How to abolish the cheque clearing system but keep and improve cheques

Nicholas Bohm and Jack Lang consider a digital alternative to paper cheques, incorporating the use of a digital signature.

Trusted computing and the digital crime scene

Yianna Danidou and Burkhard Schafer provide an analysis of the future of digital forensics in an environment where control is increasingly taken away from PC users and remotely managed by trusted third parties, typically to improve internet security by considering Trusted Computing to illustrate some of the possible legal issues that arise.

Remote forensics and cloud computing: an italian andeuropean legal overview

Dr Giuseppe Vaciago discusses the problems associated with obtaining evidence outside the boundaries of the state, illustrating the approach taken by the Italian authorities and the German Constitutional Court, and considers the various approaches that can be adopted.

Indonesia: the controversy over the bill concerning lawful interception

Dr Edmon Makarim sets out the present controversy over the introduction of a new Bill dealing with lawful interception and puts the Bill into context, including issues over the constitutionality of regulations issued by ministers permitting interception

Ten years of computer forensic tool testing

Barbara Guttman, James R. Lyle and Richard Ayers give an overview of the Computer Forensic Tool Testing project at the National Institute of Standards and Technology, setting out the test procedures, criteria and test data sets for computer forensic software tools, together with a brief illustration of some of the failures that they encounter that can affect digital evidence.

Firmware forensics: best practices in embedded software source code discovery

Michael Barr sets out five best practices when considering the discovery or disclosure of embedded software source code in the light of the reports of the National Highway Traffic Safety Administration and NASA’s Engineering and Safety Center into the causes of unintended acceleration in Toyota vehicles.

Digital watermarks as legal evidence

Maurice Schellekens considers a technical approach to identifying intellectual property in a digital format, assessing the practical issues, including the privacy, data protection and evidential issues associated with the inclsion of digital watermarks in films.

Alleged illegal downloading of music: the Danish Supreme Court provides a high bar for evidence and a new line of direction regarding claims for damages and remuneration

Per Overbeck brings the reader up-to-date with his previous article relating to litigation in Denmakr taken by the owners of copyright over the alleged obtaining of intellectual property by way of peer-ro-peer networks.

Electronic evidence in torrent copyright cases

Thomas M. Dunlap and Nicholas A. Kurtz examine the methodology behind obtaining electronic evidence of peer-to-peer users and the use of that evidence in current copyright infringement actions in United States Federal Courts.

The Moving Finger: sms, on-line communication and on-line disinhibition

Julien Hofman discusses a recent case before the South African Labour Court in which a person resigned from their post by sms, and then retracted the resignation, including a discussion of whether on-line disinhibition should be considered by the courts.

Electronic Signatures in Iran

Dr Parviz Savrai provides an introduction to the law relating to electronic signatures in Iran.

QQ Messenger chat record as criminal evidence in China

Minyan Wang sets out the facts of a case involving a QQ Messenger chat record and the part the messages played in proof of rape, including how admissibility, authentication and integrity of digital evidence is assessed in the criminal courts in China.

Practitioner note: Preserving cyber investigation evidence - the screen tool witness signature

Benjamin Wright makes some suggestions about using technology to witnesses the signature.

Practitioner note: E-mails cause practical problems for client confidentiality

Iain G. Mitchell, QC illustrates a problem that may affect counsel across the globe in the future, where they are innocently mentioned by name in an e-mail and then face the possibility of having to withdraw from the case.

The effect of ?virtual presence? in Belgium on the duty to cooperate with criminal investigations: some prudence may be required when confronted with a request from a Belgian public prosecutor

Johan Vandendriessche provides a short introduction to the following three case translations from Belgium.

Belgium

Corr. Dendermonde 2 maart 2009, onuitg. (Rechtbank van Eerste Aanleg te Dendermonde (The Court of First Instance in Dendermonde))

Investigation of credit card fraud; provider of e-mail services in the United States of America; users of the service in Belgium; jurisdiction; virtual presence in a jurisdiction; Mutual Legal Assistance in Criminal Matters; whether provider of service is required to provide identification and registration data of the person who registered e-mail accounts, including the IP address, date and time of the registration; the e-mail address associated with the profile; any other relevant personal i...

Gent 30 juni 2010, onuitg. (Hof van Beroep (The Court of Appeal in Ghent, third chamber, sitting in criminal matters))

Web based e-mail; meaning of ‘operator of an electronic communication service’ and ‘provider of an electronic communications service’; ability of a Belgian Public Prosecutor to obtain e-mails from another jurisdiction outside the scope of Mutual Legal Assistance in Criminal Matters

Cass. 18 januari 2011, nr. P.10.1347.N (Hof van Cassatie (Court of Cassation of Belgium))

Web based e-mail; whether meaning of ‘operator of an electronic communication service’ and ‘provider of an electronic communications service’ is relevant; ability of a Belgian Public Prosecutor to obtain e-mails from another jurisdiction outside the scope of Mutual Legal Assistance in Criminal Matters

Denmark

Poul Erik Gravgaard Larsen v IFPI Danmark, Case 27/2009, Højesterets Dom (Supreme Court)

Illegal filesharing of music over the internet; assessment of digital evidence

Greece

Payment Order 8444/2011, Court of First Instance of Athens

Electronic documents; meaning and distinctions of electronic documents; evidential weight of an attested copy of an e-mail; whether it meets the requirements of article 623 of the Code of Civil Procedure for the issuance of a payment order

Hungary

BH (Court Decisions) 2006/324, A Magyar Köztársaság Legfelsobb Bíróságának (Supreme Court)

Electronic documents; identifiable signature; unsigned e-mail; legal effect; requirement for an advanced electronic signature