New Rules Proposed on Electronic Evidence

davidtspf writes "The committee that makes the rules of procedure for U.S. federal courts is now considering new rules governing electronic evidence, how much litigants need to produce at trial, and under what circumstances. Civil rights attorneys are arguing that the rules will make it harder to find smoking guns, while a number of corporations, including Microsoft have submitted comments arguing for further limits. LawMeme has an article with more background, comparing the process to debates over IP law that occur in a vacuum of empirical data, and encouraging techies to submit requests to extend the public comment period, which ended today."

Comments

Microsoft's real interests...

[GLowder]

My take would be MS wants more restrictions to so it's own leaked memos can't be used against it so easily.
Just my two cents.

Re:Microsoft's real interests...

[DaHat]

That is no different than any other company or individual.

I can honestly say I know of know one who wants their deepest, darkest secrets being revealed in a court room.

Why would you expect anything less from MSFT or anyone else?

Long gone...

[ectotherm]

Long gone are the days of Ollie North and "Shredder Gate"...

Companies want more limits...

[MosesJones]

Of course they do, otherwise their emails will continue to show in court that they are guilty as hell. There should be no different standard applied to electronic communcations over written notes. If you write a note its admissable, if its electronic it should be equally admissable (and easier to get hold of).

Re:Companies want more limits...

[grasshoppa]

Well. Except electronic versions are easier to fake than the real thing.

Example: From memory, I can construct an email that is exactly like the real ones I get. Down to the Message-ID header looking authentic. Depending on the email system, that may be all that's required.

This is much harder to do with written communications. Should they still be held to the same standard? *shrug* If you can guarantee me that all electronic comms are authentic, then I don't see why not, otherwise...

Re:Companies want more limits...

[gurps_npc]

False.

Electronic data, such as email, gets routinely copied multiple times.

I work in thie field. One of our MAJOR expenses is eliminating duplicates.

If a document was suspect of being "forged", we would just have to see how many duplicates were created.

If something was dated last year, it would start to show up in all the back up tapes we got (which we had to get to make sure they did not get incriminating evidence and then delete it immediately).

In general, most electronic documents are EXTREMELY dificult to convincingly fake. Way too many extra copies that would have to have been made.

Good news I guess

[null etc.]

This is clearly a step in the right direction.

Now, we can hope that punishment for computer-related crimes is brought down to reasonable levels. As much as I hate the fear of identity thieves and hackers, I think it's ridiculous that someone can get less time in jail for committing murder than for hacking into a corporate network.

And we've all heard of "consultants" who were jailed by a company because the consultant tested the company's network security, but the company didn't like it. Penalties and jail-time were harsh, even though no bad intentions were evident.

Re:Good news I guess

[justkarl]

Maybe you're right(seeing murderers on the street isn't what I like either), but I think in such a technological-dependent society like ours, I think we should keep those who seek to destroy our infrastructure in check by restricting their ability to use technology.

I just don't see the merit in letting anarchists run rampant either.

Well

[Anonymous Coward]

I don't see any reason to convict Microsoft of having some invested interest in this. The rules being discussed suck and a lot of people can see that.

1 step forward, 1 step back?

[ChibiLZ]

I'm thinking that this is a good thing. I like how the proposed amendment to 37(f) leaves things nice and open by saying, "...should not be subject to sanctions when information is destroyed 'because of the routine operation of the party's electronic information system.'"

Could we see a new ISP springing up that 'routinely' wipes out logs every week? Might it provide better security and anonymity for its customers?

Of course there's the downside of better protecting true criminals, but I think in today's Big Brother-esque, PATRIOT act society, a little more protection from overreaching laws is a good thing.

Re:1 step forward, 1 step back?

[slittle]

Short retention would basically force The Man to have some manners, as just showing up with a van full of goons and confiscating everything won't do them much good. If they want data on someone, they'll have to have a proper order that said data on said someone over a certain period be kept.

This also means it will be much harder to mine for minor infractions post-fact, and instead persue actual "true criminals" - ie. the kind they are willing to invest time into actively following and getting warrants and whatnot.

Destroying evidence?

[moz25]

To take one example, the proposed amendment to Rule 37(f) says that responding parties should not be subject to sanctions when information is destroyed "because of the routine operation of the party's electronic information system." This rule would encourage strategic actors to design or purchase systems that routinely destroy data they might otherwise save if not for the potential litigation costs of preserving incriminating documents.

That would certainly work to the advantage of those not eager to be confronted with old memos :-)

Re:Destroying evidence?

[PepeGSay]

This seems to be in opposition to sarbanes- oxley regulations, which specifically require communications to be held and maintained. So either this would not be doable for public companies, or sarbanes-oxley regulations would have to change.

No, they'll want their cake and eat it too

[FreeUser]

Would stricter rules not force the RIAA (and their ilk) to produce stronger evidence against defendants in copyright violation lawsuits?

I doubt it. Rules for whistleblowing will have one standard, rules corporations can use against individuals will have another.

It won't be phrased that blatently. Instead it will be one set of rules for submitting confidential data (internal memos, emails, chatroom logs) and another, much laxer set of rules, for accusations of copyright infringement.

Be assured, the end result will almost certainly mean less corporate accountability, and less protection of individuals against corporate whichhunts.

Good steps

[Inkieminstrel]

With all the zombies out there and the ease of altering digital documents, it's near impossible to really verify the source of most things floating around nowadays.

Re:Hmm

[nels_tomlinson]

... either you will no longer be able submit digital pictures and financial records as evidence of XYZ Corp.'s illegal ... dealings or it can make it impossible for the RIAA/MPAA/DMCARCALSVPT to subpoena you ...

Yes, either one.

Which do you think the lobbyists are pushing for?

Re:Fool

[Peyna]

The same goes for paper documents, what's your point?

Personal verses Corporate

[HMarieY]

After reading the LawMeme article, I understood this to be mostly focusing on how cooporate electronic information would be handled, though if it is applied to corp info then it will likely later be applied to personal info. It does seem that it would open up more than a few loop holes that would allow big corporations to get away with things while the common user would not, for example a large company could easily decide to copy all possibly incriminating back-ups to a less accessable media, but how many home userts are going to deliberately store their info on a something "less accessable".

Also the note at the bottom of the article, asking that techies request that the date for public comments be extended, was up yesterday so posting this today may not be helpful.

Re deadlines for comments- late comments ok

[arbitraryaardvark]

The post says that the comment period ended today. That does not mean that comments cannot still be submitted. Informed helpful comments submitted after the deadline can be considered. I myself have no position on the proposed rule changes, but as someone who has participated in rule-making procedures I thought I'd point that out.

This is for CIVIL litigation, not criminal stuff!

[Brian See]

Reading through the comments, I see several people misinterpreting the nature of the rule changes.

The proposed changes are to the Federal Rules of CIVIL Procedure. This affects CIVIL lawsuits, and does not (directly) impact criminal prosecutions (for "hacking" or otherwise). The rule changes also don't have much to do with the admissibility or authentication of evidence.

Among other things, if adopted, the rule changes would do things like require electronic production of electronic records (i.e., don't bother trying to print out that database). Also, the proposed Rule 37(f) safe harbor for failure to preserve doesn't protect parties from sanctions for intentional or reckless failure to preserve information.

IAAL. So, there.

Re:WRONG

[zymurgyboy]

To expand a bit: if your looking for a corporate consiracy, look to lobbying and legislation and how they are related. If there is to be a double standard, it will be found in the laws passed by Congress.

To say it would be embedded into the Federal Rules of Civil Procedure would be sort of like blaming a programming language or its compiler for viruses that are written using it.