Understanding the Scope of the Investigation
As mentioned, there are three basic types of investigation. With each type, the rules get tighter and the consequences of failure to comply get progressively stricter. A good rule of thumb is to pretend that the strictest rules apply to all investigations. However, as you might imagine, there are some role-specific requirements that don’t apply to all of them.
Internal investigation is the least restrictive of the inquiries you might make. From a standpoint of professional courtesy, internal investigations are more likely to be the least hostile type you’ll ever do. You work directly with management, and the target of your inquiries probably won’t even be aware of your activities until you are finished. You don’t have courts and lawyers combing every word you say or write, hoping to find the smallest mistake.
That is not to say that there aren’t laws that apply to internal probes. There most certainly are. State and federal laws regarding privacy apply to even the smallest organization. Also, different states have different laws regarding how companies deal with employment matters, implied privacy issues, and implied contracts. This isn’t intended to be a law book, so for the purposes of brevity and clarity, understand this. It is important to review any relevant regulations before you make your first move.
Most corporations have formal guidelines for such matters. In addition to a written employee handbook, it is very likely that a company has documented guidelines regarding issues leading to termination, use of company infrastructure (including computers, e-mail systems, and network services), and so forth. In every step of your process, make sure that you adhere to the law and to corporate policy. If there appears to be a conflict between the two, get legal advice. At the very least, make sure you have written authorization to perform every step you take. Management needs to be aware of your process and every step involved in the course of investigation, and they must sign off, giving approval. Document everything you do, how you did it, and what results you obtained. In digging into the source and impact of any internal security breach, your foremost concern is the protection of your client. However, should your probe uncover deeper issues, such as illegal activity or a national security breach, then it becomes necessary to call in outside authorities.
Civil cases are likely to be brought to the organization in situations where intellectual property rights are at risk, when a company’s network security has been breached, or when a company suspects that an employee or an outsider is making unauthorized use of the network. Marcella and Menendez (2008) identify the following possible attacks:
- Denial-of-service attacks
- Malicious code
- Malicious communication
- Misuse of resources
An investigator involved in a civil dispute should be cognizant of the Federal Rules of Civil Procedure. Although a legal degree is hardly necessary, a strong background in civil law is invaluable. Additionally, experience in business management is useful, in that a good understanding of standard corporate policy is necessary. Good communications skills are required. Management needs to be able to feel equally comfortable dealing with a CEO or a secretary.
When working with large repositories of data connected to many different users and devices, it becomes more difficult to assess who actually committed an infraction. Proving that a specific user was accessing the network at a specific time (and possibly from a particular machine) can be critical to winning a case. Anson and Bunting (2007) point out the difficulties of generating an accurate timeline and recommend some good tools for simplifying the matter. A good manager will keep abreast of changing technology and make sure that the organization is equipped with the proper tools.
Tools required for examining large networks or performing live data capture are substantially more expensive than those used to search individual data sources. Generally, it is not possible to bring down a corporate network while the investigative team captures images of thousands of drives. Costs in time and materials would be prohibitive, as would be the negative impact of downtime on the company. Specialized software is needed to capture, preserve, and document the data. Additional tools are needed for data reduction. Filtering out the general network chatter and unrelated business documents can be a time-consuming process.
Keeping up with newer technology is essential, as is constant refresher training. The organization must continually assess its current capabilities and apply them to what imminent future needs are likely to be. As technology advances, investigative tools and techniques need to advance as well. Cases are won and lost on the ability of investigators to extract evidence. If a forensics team finds itself faced with a technology it doesn’t understand, there will be no time for on-the-job training.
Criminal Procedure Management
Defining precisely what constitutes computer crime is very difficult to do. Fortunately, it is not up to the investigator to determine what is and what is not criminal activity. However, some definitions have been presented by various experts. Reyes (2007) states that a computer crime will exhibit one or more of the following characteristics:
- The computer is the object, or the data in the computer are the objects, of the act.
- The computer creates a unique environment or unique form of assets.
- The computer is the instrument or the tool of the act.
- The computer represents a symbol used for intimidation or deception.
Generally speaking, computer crimes are little different from conventional crimes. Somebody stole something, somebody hurt somebody else, somebody committed fraud, or somebody possessed or distributed something that is illegal to own (contraband). While not an exhaustive list of possible computer crimes, the following is a list of the most commonly investigated:
- Auction or online retail fraud
- Child pornography
- Child endangerment
- Identity theft
- Piracy (software, literature, and music)
- Securities fraud
- Theft of services
Prosecution of criminal cases requires a somewhat different approach than do civil cases. Legal restrictions are stricter, and the investigator is more likely to be impacted by constitutional limitations regarding search and seizure or privacy. Failure to abide by all applicable regulations will almost certainly result in having all collected evidence suppressed because of technicalities. Many civil investigations are not impacted as severely by constitutional law because there is no representative of the government involved in the investigation. To assure that the investigation succeeds, management of a criminal division needs to have someone with a strong legal background. Courts will use the Federal Rules of Evidence to decide whether or not to allow evidence to be admitted in an individual case.
For the same reasons, reporting procedures and chain of custody must be rigorously followed by each person involved in an investigation, whether they are involved directly or peripherally. Even a minor departure from best practice is likely to be challenged by opposing counsel. Because of this, selection of personnel becomes a greater challenge. A technical whiz with little or no documentation ability is likely to fail in criminal investigation. Anyone who demonstrates a disregard for authority is a poor candidate for investigating criminal cases.
Tools used in criminal cases are subject to a tighter scrutiny than those used in civil cases. When a person’s life or liberty hangs in the balance, judges and juries are less sympathetic to a technician who cannot verify that the tools used to extract the evidence being presented are reliable. Software and hardware tools used by the organization must be recognized by the court for use, and the techniques used by investigators must be diligently documented to show there was no deviation from accepted standard procedures.
Funding is likely to be more limited in criminal work than in civil investigations. Money will be coming from budget-strapped government entities or from law offices watching every dime. In some cases, courts will apply the Zubulake test to determine if costs should be shifted from one party to the other. This test is based on findings from the case Zubulake v. UBS Warburg (217 F.R.D. at 320, 2003) where the judge issued a list of seven factors to be considered in ordering discovery (and in reassigning costs). These factors are to be considered in order of importance, the most important being listed first:
- The extent to which the request is specifically tailored to discover relevant information
- The availability of such information from other sources
- The total cost of production compared to the amount in controversy
- The total cost of production compared to the resources available to each party
- The relative ability of each party to control costs and its incentive to do so
- The importance of the issues at stake in the litigation
- The relative benefits to the parties of obtaining the information