The Search and Seizure of Digital Evidence by Forensic Investigators in South Africa

Abstract

The discipline of digital forensics requires a combination of skills, qualifications and knowledge in the area of forensic investigation, legal aspects and information technology. The uniqueness of digital evidence makes the adoption of traditional legal approaches problematic.
 Information technology terminology is currently used interchangeably without any regard to being unambiguous and consistent in relation to legal texts. Many of the information technology terms or concepts have not yet achieved legal recognition.
 The recognition and standardisation of terminology within a legal context are of the utmost importance to ensure that miscommunication does not occur.
 To provide clarity or guidance on some of the terms and concepts applicable to digital forensics and for the search and seizure of digital evidence, some of the concepts and terms are reviewed and discussed, using the Criminal Procedure Act 51 of 1977 as a point of departure.
 Digital evidence is often collected incorrectly and analysed ineffectively or simply overlooked due to the complexities that digital evidence poses to forensic investigators. As with any forensic science, specific regulations, guidelines, principles or procedures should be followed to meet the objectives of investigations and to ensure the accuracy and acceptance of findings. These regulations, guidelines, principles or procedures are discussed within the context of digital forensics: what processes should be followed and how these processes ensure the acceptability of digital evidence. These processes include international principles and standards such as those of the Association of Chiefs of Police Officers and the International Organisation of Standardisation. A summary is also provided of the most influential or best-recognised international (IOS) standards on digital forensics.
 It is concluded that the originality, reliability, integrity and admissibility of digital evidence should be maintained as follows:
 
 Data should not be changed or altered.
 Original evidence should not be directly examined.
 Forensically sound duplicates should be created.
 Digital forensic analyses should be performed by competent persons.
 Digital forensic analyses should adhere to relevant local legal requirements.
 Audit trails should exist consisting of all required documents and actions.
 The chain of custody should be protected.
 Processes and procedures should be proper, while recognised and accepted by the industry.
 
 If the ACPO (1997) principles and ISO/IEC 27043 and 27037 Standards are followed as a forensic framework, then digital forensic investigators should follow these standards as a legal framework.

Impediments during the execution of a search and seizure warrant for digital information by forensic investigators in South Africa

“…The main basis of concern against the off-site search of the data is the fact that the suspect is typically not present and cannot verify or determine whether the investigator stayed within the ambit of the search warrant. If proper protocols are put in place, in the SOPs of the SAPS in terms of section 26 of the Cybercrimes Act 19 (2020), in accordance with ISO/IEC DIS 27037, ISO/IEC 27041, ISO/IEC 27042 and ISO/IEC DIS 27043, suspects and authorising officers will be placed in a position to scrutinise all search and analysis actions ex post facto and would therefore be legally acceptable (Nortjé and Myburgh, 2019, p. 33).…”

“…The main basis of concern against the off-site search of the data is the fact that the suspect is typically not present and cannot verify or determine whether the investigator stayed within the ambit of the search warrant. If proper protocols are put in place, which are envisaged in the SOPs of the SAPS in terms of section 26 of the Cybercrimes Act 19 (2020), suspects and authorising officers will be placed in a position to scrutinise all search and analysis actions ex post facto and would therefore be legally acceptable (Nortjé and Myburgh, 2019, p. 33). These protocols should be structured on principles that all actions taken must be performed by competent and proficient (ISO 27042) digital forensic investigators and their actions should be auditable, repeatable, reproducible by a third party and justifiable (ISO/IEC DIS 27037).…”

“…As discussed in Article 1, related studies within a South African context that were conducted were, inter alia, that of Nieman (2006), Basdeo (2012) and Bouwer (2014).…”