Open Access Research Article
DIGITAL FORENSICS IN INDIA: CHALLENGE OF PRIVACY IN HANDLING DIGITAL EVIDENCE
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Article Details
DIGITAL FORENSICS IN INDIA: CHALLENGE OF PRIVACY IN HANDLING
DIGITAL EVIDENCE
AUTHORED BY - BEVAN AVIL PINTO
Introduction
The word
'Forensic' is derived from Latin and refers to "of or before the
forum." Forensic Science is mainly concerned with materials and indirectly
through materials with men, places, and time[1].
In other words, the processing and identity of materials that establish the
presence or absence of a link between the crime, criminal, the victim, the
weapon of offense, the place, and the time of the occurrence can be referred to
as Forensic Science[2].
However, despite the vast recent development in this field, Forensic Science
has been used for decades, as can be referenced in History when medieval
doctors would attempt to identify the cause of death. Nevertheless, in India,
Forensic Science formally began with establishing the Central Fingerprint
Bureau in Kolkata in 1897. Following this, the field of Forensic Science in India
has been expanding with the development of Crime Laboratories, toxicology
laboratories, chemical laboratories, etc. The importance of Forensic Science is
seen in the modern day when direct evidence might not exist, but Forensic
Evidence can prove the link between a crime and a criminal. In cases of
homicide, suicide, or sexual assault, DNA profiling has been of immense help in
identifying the perpetrators of a crime. The Significance of Forensic Science
has also been established by the Supreme Court in Dharam Deo Yadav v.
State Of Uttar Pradesh.[3],
wherein the court noted,
“In criminal cases, especially based on
circumstantial evidence, forensic science plays a pivotal role, which may
assist in establishing the element of a crime, identifying the suspect,
ascertaining the guilt or innocence of the accused."
In the same
case, the court also noted the types of crimes and their sophistication has
been evolving, requiring stronger and more foolproof methods of Investigation
and Forensic Science. This observation has been rightfully seen in the last two
decades with the advent of the Internet and digitization. Everything, from
documents to information, is going digital, increasing the range of crimes and
their sophistication. Thus, in light of this, Cyber Forensics or Computer
Forensics emerged in response to the increase in crimes committed by computer
systems as a part of the crime. The term Digital Forensic can be defined as,
"The
use of scientifically derived and proven methods toward the preservation, validation,
identification, analysis, interpretation, documentation and presentation of
digital evidence derived from digital sources to facilitate or further the
reconstruction of events found to be criminal, or helping to anticipate
unauthorized actions shown to be disruptive to planned operations."[4]
The amount
of Digital Data available online is unimaginable to the World Economic Forum;
by 2025, it is estimated that each day, nearly 463 exabytes of data will be
created globally[5].
Sensitive data, such as passwords, financial information, and other personal
details[6]
are available online, and the loss of such data would drastically affect a
consumer. Thus, Digital Forensic Teams need to be able to track down criminals
online using computer systems to target citizens.
This paper
shall first establish the various legislations and frameworks in India that
deal with handling digital evidence and Digital Forensics at large. The paper
then analyses the various challenges in handling Digital Evidence and Digital
Forensics. Finally, the paper shall seek to establish the relationship between
the Right to Privacy and Digital Forensics and how Digital Forensics can
potentially violate the Right to Privacy of an Individual. The paper shall
finally conclude on the importance of developing Digital Forensics and provide
suggestions.
Digital Evidence in Indian Law
Forensic
Science in India is not governed by a single law but is derived from a
combination of laws. The three main legislations that govern the understanding
of digital evidence and its relevancy and admissibility are from the Criminal
Procedure Code, 1973[7]
(CrPC), Indian Penal Code, 1860[8]
(IPC) and Indian Evidence Act, 1872[9]
(IEA). Notably, these laws are not exhaustive in the development of Evidence
and Forensic Science. However, these laws are the most significant when dealing
with forensic science. In the case of Digital Evidence, the Information
Technology Act, 2000[10]
(IT Act) becomes very relevant in dealing with the evolution of crimes to cyber
crimes and is, thus, very relevant when dealing with digital evidence.
The IPC,
IEA, and CrPC were drafted much before the issue of Digital Evidence came into
existence; however, it was updated with several amendments and changes.
However, it is vital to note that the IT Act's enactment gave rise to the
understanding of Digital Forensics and Digital Evidence. The IT Act serves as
the main focal point for understanding Digital Evidence.
The IT Act
defines several words that are very important to understand for the collection
of Digital Evidence. The Act defines "digital signature,"
"electronic record," "computer," "computer
network," "computer system," "data,"
"information," and "intermediary" and establishes the legal
recognition of electronic records and digital signatures. While it must be
noted that the Indian Penal Code defines a Document as "any matter
expressed or described upon any substance employing letters, figures, or marks,
or by more than one of those means, intended to be used, or which may be used,
as evidence of that matter."[11],
however, the IT Act defines the term ‘Electronic Record’ as “data,
record or data generated, image or sound stored, received or sent in an
electronic form or micro film or computer generated micro fiche."[12].
Thus, there is a significant difference in the very definitions of the terms.
In addition to this, the IT Act also provides for several crimes, such as
unauthorized access to Computer Systems under section 43[13]
and tampering with computer source documents under section 66[14]
and also provides the government with the power over any information transmitted
through a computer in the interest of the sovereignty, defense, security, or
friendly relations with foreign states under Section 69[15].
Therefore,
the IT Act provides a large framework for understanding the use of Digital
Evidence. However, it must be noted that the IT act alone is insufficient and
must be understood in light of the IEA. The very definition of evidence under
the IEA provides "all documents including electronic records produced
for the inspection of the Court."[16].
The Indian Evidence Act has been amended to provide for the relevancy and
admissibility of Electronic Evidence before the Courts.
Under
Section 45A[17]
of the IEA, the opinion of the Examiner of Electronic Evidence is considered an
expert opinion and is, thus, considered relevant facts under section 45 of the
IEA. This read with CrPC section 293[18]
regarding the reports of government experts showcases the importance given to
the collection of Digital Evidence. Moreover, if the evidence in question is
that of a Digital Signature, then the opinion of the Certifying Authority that
issued the Signature would be relevant under Section 47A. However, it must be
noted that in the case of the State Of Himachal Pradesh v. Jai Lal[19],
the Supreme Court noted that the scientific opinion evidence becomes an
important factor; however, the credibility of such a witness depends on the
reasons for the conclusion drawn based on the data and materials furnished.
Thus, it is important to note that although evidence may be in electronic form,
the reasoning and conclusion of an Expert will determine the credibility of the
expert and, in turn, the evidence.
In the case
of Mukesh v. State of N.C.T. of Delhi[20],
the CCTV footage of a nearby area was used to corroborate the story of the
victim in a rape case. The Computer Cell Expert's Forensic Division Head of
Department testified that there was no tampering with the CCTV footage. Thus,
the court accepted the testimony of the expert in this regard.
Another
important Section under the IEA is Section 65B[21]
which largely discussed the admissibility of Electronic Records. This section
provides that any information in an electronic record that is printed on paper,
stored, recorded, or copied in optical or magnetic media shall be deemed a
document and admissible as evidence in a court of law.
In regards
to Section 65B of the IEA, the Supreme Court, in the case of Anvar P.V v.
P.K. Basheer[22],
the court noted that primary sources of electronic records could be admissible
without following Section 65B; however, Secondary Sources of Electronic
Evidence are susceptible to being tampered with, and thus, the safeguards
presented under Section 65B concerning the source and authenticity of
electronic records are necessary in order to be used as evidence.
Similarly,
in the case of Vikram Singh v. State of Punjab[23],
the court opined that a tape-recorded version of which a ransom call was
recorded would not come under secondary evidence and, thus, no certificate
would be necessary under Section 65B.
Therefore,
the IEA, IPC, CrpC, and IT Act of India form the main understanding of Digital
Evidence in India and its reliability, relevance, and Admissibility. Thus, law
enforcement agencies must understand the severity of Electronic Evidence as it
is very susceptible to tampering, and careful measures are adopted in the
collection of Digital Evidence.
Procedure for Collection of Digital Evidence
The
procedure for collecting Digital Evidence is often similar to that of the
Collection of Evidence from a Regular Crime scene. In Crime Scene Management,
the dimensions of the crime scene and potential safety are first established.
Following this, the Crime scene is then preserved, ensuring that it remains
undisturbed until the Investigation Officer arrives. After the arrival of the
Investigative Officer, the crime scene is recorded, sketched, and photographed.
Post this, the search for evidence begins with the officers moving around the
crime scene in a particular manner to find evidence for collection. Once the evidence
is found, it is collected and preserved in a particular manner to ensure that
the evidence cannot be destroyed or tampered with[24].
It must be noted that this method of Crime Scene Management is very similar to
that of the Collection of Digital Evidence in Cyber Crimes.
In Digital
Forensics, the first stage is the Assessment of the Crime Scene. In this stage,
importance is given to obtaining the proper authorization to conduct a computer
investigation. Assessment of the case, questioning the relevant parties, and
logging results in order to identify the crime and evidence[25].
It is very important to assess the situation in a Cyber Crime as several types
of cyber crimes can occur on a computer, such as logic bombing, identity theft,
data manipulation, hacking, and so on. Thus, an investigation team needs to
assess the cybercrime and the extent of the damage caused.
The second
step is the Preservation Stage. Soon after the assessment of the digital crime
that has taken place, the preservation stage begins. The Preservation of a
digital crime scene essentially refers to the freezing of the crime scene.
Operations such as preventing the use of computer systems, stopping any ongoing
process concerning the crime, such as removal of data, and deliberating on the
most appropriate way to extract the data.[26]
Following
the Preservation Stage is the Collection Stage. The first and foremost step is
to identify the sources of data and thereafter collect the data from the
sources. Commonly seen sources would include mobile phones, laptops, cameras,
smartwatches, and so on. After the sources are then narrowed on, the collection
of data is then planned based on the significance, volatility, and difficulty
involved in the collection[27].
Evidence of a crime is most often seen in the storage devices in the source,
such as a hard disk. After the evidence is then narrowed on, at the time of
collection, possibilities of manipulation are eradicated, and a chain of
custody is established. It is necessary that the authenticity and source of
digital evidence is maintained as was laid down by the Supreme Court[28]
and thus, it is possible that a chain of events in relation to the data can be
acquired during the collection of data, and proper care and caution must be
exercised at the time of collection of the Data.
The next
stage is the Examination and Analysis Stage of the Digital Forensic
Investigation. The examination refers to the proper and thorough examination of
the evidence collected in relation to cybercrime. The outputs in an examination
include metadata, log files, time stamps, and other relevant information useful
for establishing the crime, suspect, and victim[29].
After this, the examined evidence is then traced, filtered and any hidden data
is uncovered, after which a conclusion is drawn[30].
After the
Examination and Analysis Stage, the final stage is the Reporting Stage. Under
this stage, all evidence collected and analyzed is reported, and the data from
the investigation is included within this report, along with records of time stamps
and chain of custody. Thus, concluding the Digital Forensic Investigation of
Cyber Crimes.
The Right to Privacy in Digital Forensic
Investigation
The Right
to Privacy is considered one of the most important fundamental rights in Modern
Day. Since the case of Kharak Singh v. The State
of UP[31], the Right to Privacy was noted to be of immense
importance even though it was not declared to be a Fundamental Right under
Article 21. It was later in the case of R. Rajagopal v. State of Tamil Nadu[32]
that the Right to Privacy was viewed to be a tort. The court also noted that
the Right to Privacy was not absolute in this case, and there were exceptions
to the same. Similarly, in the case of People’s Union for Civil Liberties v.
Union of India[33], the court noted
that the right to make a call without any disturbance is considered under the
right to privacy and cannot be taken away unless under the procedure established
by law. However, it was only in Justice K.S. Puttaswamy Vs. Union of India[34],
the Constitutional Bench comprising 9 Judges, declared the Right to Privacy to
be an integral part of the Right to Life and Personal Liberty under Article 21
of the Indian Constitution.
The
Right to Privacy is of growing concern in the Digital Age. This right has also
led to the development of the Digital Personal Data Protection Bill, 2022[35]. This bill ensures that
users have a right to control their data, and no one can utilize their data
without the consent of the user. Furthermore, several rights have been provided
to the owner of the data while also creating obligations on the processor of
Data. The entrance of this bill and the whole Digital Forensic seems to be in
question due to the importance of the Right to Privacy.
As
established, Forensic Investigation results in Investigators collecting data
from sources; however, if left unchecked, the data collected could potentially
be irrelevant to a crime and could jeopardize the privacy of the owner of the
data. While the aim of Data Privacy is to ensure the data of the owner does not
fall into the hands of unauthorized people, Digital Forensics is concerned with
finding all potential evidence pointing to a crime.
When
Digital Forensic Investigators manually approach files and determine their
relevance to the crime, there is a risk of privacy violations for the private
files that are not considered to be evidence in a given case. However, at the
same time, this step is increasingly necessary as until an investigator
determines and examines a file, the investigator will not be able to ascertain
the relevancy of the data to a particular crime[36]. This results in a high
risk to the privacy of individuals.
Thus,
there is an obvious risk to privacy and violation of Article 21 in the process
of Digital Forensics. However, it must also be noted that the Right to Privacy
is not absolute. Firstly, Article 21 in itself is not absolute and is limited
by the procedure established by law[37]. However, it is to be
noted that there exists no regulations or guidelines that are used for digital
forensic investigations. However, in the Landmark Puttaswamy judgment, the
Supreme Court noted that the Right to Privacy is not absolute. Any law or
procedure taking away the Privacy of an Individual must follow a three-pronged
test of Legality, Necessity and Proportionality.[38]
In terms of
Legality, the CrPC provides for the procedure of investigating. In normal crime
scenes, an investigation would include panchanamas and recording of the crime
scene[39],
however, in a Digital Crime Scene, this would be difficult to establish as Data
is not tangible, and it would be practically impossible to use pathnames for
the investigation.
In terms of
Necessity, it is undoubtedly necessary for investigators to find and examine
evidence to determine the crime and suspects. However, at the same time, it is
impossible for investigators to determine the relevancy of data unless it is
examined. Thus, the violation of privacy in most cases is necessary in order to
determine the relevancy of the data collected.
Finally, in
terms of proportionality, the Forensic Investigation would include collecting
Data from the Crime scene and any other data that is needed outside the purview
of the scene would and in possession of the owner would require a warrant of
search from a magistrate[40].
However,
despite the possibility of the three-pronged test being fulfilled, the Right to
Privacy of individuals still remains to be in risk as it is possible that there
could be potential misuse of power and investigation at the time of the
investigation. However, there are no current regulations regarding the handling
of Digital Evidence which creates a problem for the Right to Privacy of
Individuals.
Conclusion
and Suggestions
Digital
Forensics in India is becoming more and more important. Crimes are evolving,
and the use of technology in crimes is inevitable. Every individual carries a
mobile phone which can also contain important evidence; however, it is
important for Forensic Teams to be able to safely extract the data from digital
sources and handle the data properly. If the data is tampered with or
destroyed, it could result in freeing a criminal into society. Hence, the
importance of Digital Forensics is only increasing with the passing of each
day. However, despite the importance of Digital Forensics, the risks of the
violation of the Right to Privacy is imminent. While the Informational
Technology Act of 2000 and the several amendments to the Indian Evidence Act,
Criminal Procedure Code, and Indian Penal Code have allowed for the development
of Digital Forensics in India, there exist no proper guidelines or regulations
for Digital Forensic Investigators to collect data while ensuring the highest
level of privacy to data subjects not a part of the investigation. While the
Personal Data Protection Bill 2022 may help promote the value of privacy, its
effects may not be seen in Digital Forensics. Hence, it is essential that a
uniform guideline for the handling of Digital Evidence and Digital Forensic
Investigation is drafted.
In light of
the research presented above, it is vital that there is an urgent need to
develop a uniform framework for Digital Forensic Investigation in India.
Firstly, the framework needs to establish the proper stages and methods of
collection of data from sources. In doing so, unnecessary and unconnected data
can be separated from the data that is necessary for the investigation. This
would ensure privacy for owners of unconnected data. Secondly, the collected
data must only be read by authorized individuals, and no other person should be
permitted access, thus reducing the risk of privacy. Finally, any data that is
not necessary must be returned and/or destroyed so that such data cannot be
leaked. In addition, it is also important to note that a chain of events must
be kept so as to reduce any issues arising from the collection of Data.
Moreover, Digital Forensics Teams can also incorporate the use of Artificial
Intelligence and Machine Learning to segregate relevant evidence from
irrelevant ones. This would enhance the privacy of users whose data has been
collected. Thus, by incorporating these suggestions, Digital Forensics can
continue to grow without the risk to the privacy of unconnected users.
[1] B. R. Sharma, Forensic Science in Criminal Investigation
& Trials (5th ed., Universal Law Publishing 2018).
[2]
Dharam Deo Yadav v. State of UP, (2014) 5 SCC 509.
[3] Prachi
Kathane, Anshu Singh, J.R. Gaur, & Kewal Krishan, The Development,
Status and Future of Forensics in India, 2 Forensic
Sci. Int'l (2020).
[4]
Rupali K.Kulkarni & Dr.A.D.Gawande, Digital Forensics, 5 International Journal of Emerging Technologies
in Engineering Research 333 (2017).
[5]
Jeff Desjardins, How much data is generated each day? World Economic Forum (Apr. 4, 2023, 4:34
PM), https://www.weforum.org/agenda/2019/04/how-much-data-is-generated-each-day-cf4bddf29f/.
[6]
The Information Technology (Reasonable security practices and procedures and
sensitive personal data or information) Rules, 2011, Rule 3, Gazette of India,
pt. II sec. 3(i) (Apr. 11, 2011).
[7]
Criminal Procedure Code, 1973, No. 2, Acts of Parliament, 1974 (India).
[8]
The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India).
[9]
Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872 (India).
[10]
The Information Technology Act, 2000, No. 21, Acts of Parliament, 2000 (India).
[11]
The Indian Penal Code, 1860, §29, No. 45, Acts of Parliament, 1860 (India).
[12]
The Information Technology Act, 2000, §2(t), No. 21, Acts of Parliament, 2000
(India).
[13]
The Information Technology Act, 2000, §43, No. 21, Acts of Parliament, 2000
(India).
[14]
The Information Technology Act, 2000, §66, No. 21, Acts of Parliament, 2000
(India).
[15]
The Information Technology Act, 2000, §69, No. 21, Acts of Parliament, 2000
(India).
[16]
Indian Evidence Act, 1872, §3, No. 1, Acts of Parliament, 1872 (India).
[17]
Indian Evidence Act, 1872, §45A, No. 1, Acts of Parliament, 1872 (India).
[18]
Criminal Procedure Code, 1973, §293, No. 2, Acts of Parliament, 1974 (India).
[19] State
Of Himachal Pradesh v. Jai Lal, 1999 Supp(2) SCR 318.
[20] Mukesh
v. State of N.C.T. of Delhi, AIR 2017 SC 2161.
[21]
Indian Evidence Act, 1872, §65B, No. 1, Acts of Parliament, 1872 (India).
[22] Anvar
P.V v. P.K. Basheer, AIR 2015 SC 180.
[23] Vikram
Singh v. State of Punjab, AIR 2017 SC 3227.
[24] B. R. Sharma, Forensic Science in Criminal
Investigation & Trials (5th ed., Universal Law Publishing
2018).
[25] K.K.
Sindhu & Dr. B.B. Meshram, Digital Forensic Investigation Tools and
Procedures, 4 I.J. Computer Network
& Information Security 39 (2012).
[26]
Rupali K.Kulkarni & Dr.A.D.Gawande, Digital Forensics, 5 International Journal of Emerging Technologies
in Engineering Research 333 (2017).
[27] Id.
[28] Anvar
P.V v. P.K. Basheer, AIR 2015 SC 180.
[29]
Rupali K.Kulkarni & Dr.A.D.Gawande, Digital Forensics, 5 International Journal of Emerging Technologies
in Engineering Research 333 (2017).
[30] K.K.
Sindhu & Dr. B.B. Meshram, Digital Forensic Investigation Tools and
Procedures, 4 I.J. Computer Network
& Information Security 39 (2012).
[31]
Kharak Singh v. The State of UP, AIR 1963 SC
1295.
[34]
K.S Putthaswamy v. Union of India, (2017) 10 SCC 1.
[35]
The Digital Personal Data Protection Act, 2022 (India).
[36]
Robin Verma, Digital Forensics 2.0: an automated, efficient, and
privacy-preserving digital forensic investigation framework, Indraprastha Institute of Information
Technology Delhi (2018).
[38]
K.S Putthaswamy v. Union of India, (2017) 10 SCC 1.
[39]
Criminal Procedure Code, 1973, §100, No. 2, Acts of Parliament, 1974 (India).
[40]
Criminal Procedure Code, 1973, §93, No. 2, Acts of Parliament, 1974 (India).
Article Information
DIGITAL FORENSICS IN INDIA: CHALLENGE OF PRIVACY IN HANDLING DIGITAL EVIDENCE
Authors: BEVAN AVIL PINTO
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/06/29
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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