As a preamble to this section, it has to be highlighted that all authors are computer scientists and possess absolutely no legal training. All statements and interpretations presented below on legal considerations are therefore layman’s interpretation of freely available material, which are made to the best of the authors’ knowledge.
2.1.1. Forensic Process Modelling Requirements and Best Practices (US Perspective)
On the U.S. federal level, strict rules for the integration of the results of forensic investigations were established in 1975. These rules, the Federal Rules of Evidence (FRE [
8]), define the framework within which evidence can be admitted into court. Even if these rules are in their original form only applicable on U.S. federal level, their concepts for handling forensic data have influenced many other judicial systems worldwide and are also considered with interest in many European legal systems (see [
2]).
In general, under the FRE, forensic results have to be interpreted by experts to the court. The reason for this lies in the assumption that any judge (or jury) will lack the expert knowledge to completely interpret the findings of a forensic investigation on his/her own and that therefore expert testimony is strictly required in court proceedings. If the expert’s opinion helps the fact finder in understanding the significance of factual data, then the expert witness is essential for the case and its opinion evidence is admissible.
Using the terminology of U.S. jurisdiction, the trial judge acts as a form of ‘gatekeeper’, assuring that scientific expert testimony truly proceeds from reliable (or scientific) knowledge. Considerations on relevance and reliability require the trial judge to ensure that the expert’s testimony is ‘relevant to the task at hand’ and that it rests ‘on a reliable foundation’. According to [
9], the primary rules that are relevant for the presentation of forensic evidence in court (i.e., that apply to expert witnesses) in the FRE are FRE rule 702 (“
Testimony by Experts”) and FRE rule 703 (“
Bases of Opinion Testimony by Experts”).
In the year 2011, FRE rule 702 (“Testimony by Experts”) was amended to: “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case”.
When analysing this rule, it can be seen that, in regarding the admissibility of an expert, the judge has to establish whether the following four points are met:
Qualification of a witness as expert: First, a witness has to qualify as an expert. The conclusion of this process is that the presiding judge decides whether the witness may offer opinion testimony as an expert.
Type of knowledge considered: The first seven words of FRE rule 702 specify different types of knowledge (e.g., scientific, technical or other specialised knowledge) that an expert can offer.
Who is addressed by the expert: Basically, there are two entities the expert has to convince. First, the judge, to get admitted in pre-trial hearings, and second the ‘fact finder’ (the “
trier of fact” in FRE rule 702 [
10], either a jury in normal cases or a judge in non-jury trials) at the trial itself.
Qualification: Any expert has to testify upon the five criteria listed in FRE rule 702 “
knowledge, skill, experience, training, or education” [
10]. This information helps the judge to decide whether an expert can be admitted to trial in a specific case and helps the ‘fact finder’ (i.e., usually the jury) to assign corresponding weights to each expert’s testimony in the decision process.
If these four points are established, the judge determines for the case whether an expert is qualified to testify under FRE rule 702. The April 2000 (effective December 2000) amendment of FRE rule 702 includes three further requirements, which must also be met. The goal of these additional requirements is to make it easier to present effective scientific and technical expert testimony whenever such evidence is warranted and provide a basis for the exclusion of opinion testimony that is not based on reliable or mature methodology. These additional requirements are [
10]: “[…]
if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case”. In April 2011, another requirement was added to this list [
8] “[…]
the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue […]”.
In the notes on FRE rule 702 published by the Legal Information Institute at Cornell Law School in December 2010 [
11], the current regulations regarding the interpretation of this rule for U.S. federal courts are summarised as follows: “
Rule 702 has been amended in response to Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993), and to the many cases applying Daubert, including Kumho Tire Co. v. Carmichael,
119 S.Ct. 1167 (1999). In Daubert the Court charged trial judges with the responsibility of acting as gatekeepers to exclude unreliable expert testimony, […]”. The main result of this amendment are the so called Daubert hearings where the judge(s) are supposed to use the so called Daubert criteria (see below) to assess the admissibility of methods and investigation results to legal proceedings.
The other FRE regarding opinions and expert testimony (rule 701 “
Opinion Testimony by Lay Witnesses”, rule 703 “
Bases of an Expert’s Opinion Testimonies”, rule 704 “
Opinion on an Ultimate Issue”, rule 705 “
Disclosing the Facts or Data Underlying an Expert’s Opinion” and rule 706 “
Court-Appointed Expert Witnesses”; see [
8]) are further regulating the usage of forensic investigation results in court, but are of little relevance to this paper. For a more detailed analysis, see [
12].
Regarding the second and third point of the list given above in the analysis of FRE rule 702 (‘Type of knowledge considered’ and ‘Who is addressed by the expert’), it has to be summarised that if something is declared to be ‘science’ in regard to FRE rule 702, then the criteria for the evaluation of scientific methods introduced in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) [
13], ref. [
14] have to be applied by the judge to make the expert prove this declaration.
In 1923, the court in
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) made a first suggestion how to proceed with the admission of expert testimony based on novel forensic techniques. The court in Frye suggested [
15]: “
Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. […],
the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs”. In Frye (or the Frye standard as it is also referred to) the court concluded that the polygraph test that was intended to be used in this case could not be admitted because it lacked the required general acceptance in the corresponding research fields. Prior to this seminal ruling in Frye, according to [
9], the competence of an expert was equivalent to his success in real life. In [
9] it is summarised as: “
If a person earned a living selling his or her knowledge in the marketplace, then that person would be considered an expert who could testify at trial.”
The Frye standard was in 1975 partially replaced by the FRE. Initially, they contained no special rule that, when dealing with ‘scientific’ evidence, novel or otherwise, ensured that science-based testimony is reliable and, therefore, admissible. Therefore, all evidence was considered admissible if relevant, provided its use in court was not outweighed by “
unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time or needlessly presenting cumulative evidence”, as stated in FRE rule 402 [
8].
The next relevant step in legal developments on expert testimony (and therefore the means of introducing forensic sciences into court) occurred in 1993, when the U.S. Supreme Court made another ground-breaking decision on expert testimony in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) [
13]. Daubert was in 1999 followed by another important court case,
Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999). Both Daubert and Kumho Tire arose out of civil lawsuits. An extensive and intelligible summary of the proceedings in the Daubert cases (original and the affirmation in the U.S. Court of Appeals) is presented in [
9]. The main point of interest for this paper is that the court unanimously held that Frye did not survive the enactment of the FRE. In interpreting FRE rule 702, the court in Daubert stated that if the admissibility of scientific evidence is challenged, it is the function of the trial court to act as ‘gatekeeper’ to determine whether proffered opinion evidence is relevant and reliable. The U.S. Supreme Court specified several flexible and non-exclusive criteria (the so-called Daubert criteria or Daubert standard) to guide other courts when they have to consider in deciding whether a scientific field is sufficiently reliable to warrant admission of opinion evidence. As a further important milestone, in 1999 in
Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999), the U.S. Supreme Court applied the Daubert criteria of proof of reliability to all forms of expert opinion testimony (i.e., scientific, applied science, technological, skill and experience). Additionally, the court in Kumho Tire made it clear that the list of Daubert criteria was meant to be helpful and is not a definitive checklist, but rather a flexible, non-exclusive recommendation. As a result, no attempt has been made in US law to ‘codify’ these specific criteria. Other U.S. law cases have established that not all of the specific Daubert criteria can apply to every type of expert testimony. The specific criteria, explicated by the Daubert court, are [
11]:
“whether the expert’s technique or theory can be or has been tested – that is, whether the expert’s theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability”;
“whether the technique or theory has been subject to peer review and publication”;
“the known or potential rate of error of the technique or theory when applied”;
“the existence and maintenance of standards and controls”;
“whether the technique or theory has been generally accepted in the scientific community”.
While the criteria DC2 to DC5 are self-explanatory (including the fact that publication in DC2 means ‘open publication’), DC1 is summarised more precisely in [
13] as “
the theory or technique (method) must be empirically testable, falsifiable and refutable”.
The Daubert criteria are widely accepted in the classical fields, like medical forensics. It can also be, and is, applied in the much younger field of IT-forensics (see e.g., [
16,
17]). It has to be admitted that the field of media forensics, which is the focus of this thesis, is still lacking maturity in this regard. Here, only very specific methods applied in this field already fulfil the Daubert criteria sufficiently. Overviews over the more mature techniques in this field are given in [
18,
19].
A well-established reference in this field is the document Forensic Examination of Digital Evidence: A Guide for Law Enforcement [
20] of the U.S. Department of Justice-National Institute of Justice. Unfortunately, this document has not received any update since 2004. Its place has been taken over in past years by publications of well-established (and court-trained) forensic experts, such as [
21,
22] or [
23]. Homogenising the different individual views, expert bodies, like the Organization of Scientific Area Committees (OSAC) Task Group (TG) on Digital and Multimedia Evidence have become normative institutions arguing for harmonisation of procedures: “[…]
digital/multimedia evidence, and other forensic disciplines, would be in a much stronger position to demonstrate their scientific basis if they were considered as belonging to a harmonized forensic science rather than as mere disciplines at the intersection of forensic specialties and other sciences”. [
24]. As a reason, the following is given: “
Like many other specializations within forensic science, the digital/multimedia discipline has been challenged with respect to demonstrating that the processes, activities, and techniques used are sufficiently scientific”. This OSAC TG aims at advancing digital/multimedia evidence, and forensic science as a whole by (amongst other aspects):
“Strengthen scientific foundations of digital/multimedia evidence by developing systematic and coherent methods for studying the principles of digital/multimedia evidence to assess the causes and meaning of traces in the context of forensic questions, as well as any associated probabilities.”
“Assess ways to mitigate cognitive bias in cases that require an understanding of the context of traces in order to analyze digital/multimedia evidence, […]”
“Establish effective ways to evaluate and express probative value of digital/multimedia traces for source level and activity level conclusions. This includes studying how quantitative evaluation of digital/multimedia evidence can be constructed for different forensic questions, […] as well as studying how such evaluative results can be communicated to decision-makers.”
As a consequence, generalisable and standardised forensic process models are currently sought for to bridge the gap between the strict legal requirements (see the FRE 702 and Daubert requirements discussed above) and the current degree of (or rather lack of) maturity of many media forensic approaches originating form academic research.
2.1.2. The German Perspective
As discussed in detail in [
2], the situation in the U.S. can not be directly projected onto the European situation. One of the main reason is that forensics are still entirely governed by national legislation.
For the authors the German situation is relevant. Here, the currently most relevant official guideline is the BSI code of practice for IT forensics (“Leitfaden IT-Forensik” [
3]) of the German Federal Office for Information Security (BSI). One of the intentions of this document was to try to homogenise forensic proceedings in the highly fragmented system with 35 different police agencies independent from each other on federal- and state level. In this regard, it is very similar in its intention to the document Forensic Examination of Digital Evidence: A Guide for Law Enforcement [
20] (2004) of the U.S. Department of Justice-National Institute of Justice and similar to its U.S. pendant, it is outdated with the last updated version of the “Leitfaden” (German for guidelines) having been published in 2011. Nevertheless, it is still a valuable starting point and has been used as such for more recent work on forensic process modelling, see
Section 3 below.
In its core, the BSI guidelines for IT forensics define a phases driven process model model, tool categories and a forensic data model. In the phase driven process model, which is for this paper the most relevant component of these guidelines, six different phases are described: Strategic preparation (SP), Operational preparation (OP), Data gathering (DG), Data investigation (DI), Data analysis (DA) and Documentation (DO). These phases, which are outlining the process itself, are briefly summarised in
Table 1 the interaction pattern of these phases is shown in
Figure 1. The actual passing of data and results between the phases is taking place in the horizontal transitions, shown as horizontal arrows in the figure. It has to be admitted here, that this paper somewhat diminishes the role the Documentation receives in [
3]. Originally, the DO is considered to have two distinguishable aspects: the accompanying documentation of the process (which can be seen as a combination of complete logs as well as a tamper-proof (hence the uni-directional, solid-lined vertical arrows in the figure), digital chain-of-custody) and the final documentation (e.g., as the written expert report intended to be used in court as basis for an expert testimony). In the present context, it is important to point out that the latter (i.e., the drafting of the final documentation for a case) should be used to reflect upon potential improvements of the processes and their implementation, acting as a feedback loop into SP. This is shown in
Figure 1 by adding the dashed arrow from DO into SP.
One important aspect here is the separation of preparation steps in an investigation into two distinct phases (the strategic preparation (SP) on one hand, and the operational preparation (OP) on the other). In recent work on this model (e.g., [
25], which is available in English), the SP is generally defined as: “
The strategic preparation […]
includes all preparation procedures taken ahead of the actual occurrence of a specific incident”. Exemplary measures for SP in the context of digital forensics are given by [
25] as: “
Documentation and extension of knowledge of IT systems specifics, tool testing for forensic data types and sets of methods determination for error loss and uncertainty estimation, setup of logging capabilities, performance of system landscape analysis, data protection considerations, […].” In contrast, the OP is specified to “[…]
include all preparation procedures taken after of the actual occurrence of a specific incident. Those procedures by definition do not alter any data on the targeted system”. These preparation phases are then followed by the actual application of forensic procedures, which can be separated into the triplet of data gathering (DG), data investigation (DI) and data analysis (DA). The whole process is in every phase (including SP and OP) supported by accompanying documentation, which is in the last phase (documentation (DO)) used as the basis for the generation of the official documents regarding the investigation (e.g., the evidence to be interpreted in expert testimony in a court case). It has to be acknowledged here that these BSI guidelines on outlining a forensic process, while acknowledging established best practices in this field, significantly differ from other national guidelines, even in other EU states. This can be illustrated by comparing it, for example, with the model described in [
27], which very well reflects the Norwegian approach. It also builds upon a phase-driven model, but with a different established phases layout: (1) Identification Phase, (2) Collection Phase, (3) Examination Phase, (4) Analysis Phase and (5) Presentation Phase. This is much closer to long-time established best practices in traditional (analogue world) forensic sciences and requires then explicit activities to achieve and maintain “Digital Forensic Readiness” [
27] (an equivalent to the Strategic Preparation phase in the BSI guidelines) to successfully cope with modern day digital and digitised forensics tasks.
The second core aspect of the BSI guidelines is the classification scheme for forensically relevant data types. More recent publications (see
Section 3 below) have shown that the original scheme as proposed by the BSI in 2011 needs to be extended accordingly if investigation domains other than hard-disk, RAM or network forensics are considered.
The third core aspect of the BSI guidelines is the definition of forensic method classes. For a detailed discussion on these method classes, including considerations on the availability in certain investigation contexts, practicalities of their application in a forensic process, etc., we refer to [
25].