Electronic Data Discovery: Integrating Due Process into Cyber Forensic Practice

Most organizations and government agencies regularly become engaged in litigation with suppliers, customers, clients, employees, competitors, shareholders, prosecutors or regulatory agencies that nearly assures the need to organize, retain, find and produce business records and correspondence, emails, accounting records or other data relevant to disputed issues. This article discusses some high visibility cases that constrain how metadata and content is routinely made available to opposing parties in civil litigation, to prosecutors in criminal prosecutions and to agency staff in regulatory enforcement litigation. Public policy, as implemented in the rules of evidence and pretrial discovery, restrict electronic data discovery (EDD) as it becomes a predominant and potentially costly pre-trial activity pivotal to modern litigation. This article discusses these constraints while identifying opportunities for the interdisciplinary activities among litigators, forensic experts and information technology professionals

Paper Session IV: Development and Delivery of Coursework - The Legal/Regulatory/Policy Environment of Cyberforensics

This paper describes a cyber-forensics course that integrates important public policy and legal issues as well as relevant forensic techniques. Cyber-forensics refers to the amalgam of multi-disciplinary activities involved in the identification, gathering, handling, custody, use and security of electronic files and records, involving expertise from the forensic domain, and which produces evidence useful in the proof of facts for both commercial and legal activities. The legal and regulatory environment in which electronic discovery takes place is of critical importance to cyber-forensics experts because the legal process imposes both constraints and opportunities for the effective use of evidence gathered through cyber-forensic techniques. This paper discusses different pedagogies that can be used (including project teams, research and writing assignments, student presentations, case analyses, class activities and participation and examinations), evaluation methods, problem-based learning approaches and critical thinking analysis. A survey and evaluation is provided of the growing body of applicable print and online materials that can be utilized. Target populations for such a course includes students with majors, minors or supporting elective coursework in law, information sciences, information technology, computer science, computer engineering, financial fraud, security and information assurance, forensic aspects of cyber security, privacy, and electronic commerce. Keywords: Cyberforensics; Electronic Data Discovery; Electronic Records Management; Pre-Trial Discovery; Admissibility of Electronic Evidence; Information Assurance, Security and Risk Analysi

Development and Delivery of Coursework: The Legal/Regulatory/Policy Environment of Cyberforensics

This paper describes a cyber-forensics course that integrates important public policy and legal issues as well as relevant forensic techniques. Cyber-forensics refers to the amalgam of multi-disciplinary activities involved in the identification, gathering, handling, custody, use and security of electronic files and records, involving expertise from the forensic domain, and which produces evidence useful in the proof of facts for both commercial and legal activities. The legal and regulatory environment in which electronic discovery takes place is of critical importance to cyber-forensics experts because the legal process imposes both constraints and opportunities for the effective use of evidence gathered through cyber-forensic techniques. This paper discusses different pedagogies that can be used (including project teams, research and writing assignments, student presentations, case analyses, class activities and participation and examinations), evaluation methods, problem-based learning approaches and critical thinking analysis. A survey and evaluation is provided of the growing body of applicable print and online materials that can be utilized. Target populations for such a course includes students with majors, minors or supporting elective coursework in law, information sciences, information technology, computer science, computer engineering, financial fraud, security and information assurance, forensic aspects of cyber security, privacy, and electronic commerce

The Data Trust Solution to Data Sharing Problems

A small number of large companies hold most of the world’s data. Once in the hands of these companies, data subjects have little control over the use and sharing of their data. Additionally, this data is not generally available to small and medium enterprises or organizations who seek to use it for social good. A number of solutions have been proposed to limit Big Tech “power,” including antitrust actions and stricter privacy laws, but these measures are not likely to address both the oversharing and under-sharing of personal data. Although the data trust concept is being actively explored in the United Kingdom, European Union, and Canada, this is the first Article to take an in-depth look at the viability of data trusts from a US perspective. A data trust is a governance device that places an independent fiduciary intermediary between Big Tech and human data subjects. This Article explores how data trusts might be configured as bundles of contracts in the information supply chain. In addition to their benefits for the social good, data trusts might contribute to relieve some of the tension between EU and US privacy practices

RegTech and Predictive Lawmaking: Closing the RegLag Between Prospective Regulated Activity and Regulation

Regulation chronically suffers significant delay starting at the detectable initiation of a “regulable activity” and culminating at effective regulatory response. Regulator reaction is impeded by various obstacles: (i) confusion in optimal level, form and choice of regulatory agency, (ii) political resistance to creating new regulatory agencies, (iii) lack of statutory authorization to address particular novel problems, (iv) jurisdictional competition among regulators, (v) Congressional disinclination to regulate given political conditions, and (vi) a lack of expertise, both substantive and procedural, to deploy successful counter-measures. Delay is rooted in several stubborn institutions, including libertarian ideals permeating both the U.S. legal system and the polity, constitutional constraints on exercise of governmental powers, chronic resource constraints including underfunding, and agency technical incapacities. Therefore, regulatory prospecting to identify regulable activity often lags the suspicion of future regulable activity or its first discernable appearance. This Article develops the regulatory lag theory (RegLag), argues that regulatory technologies (RegTech), including those from the blockchain technology space, can help narrow the RegLag gap, and proposes programs to improve regulatory agency clairvoyance to more aggressively adapt to changing regulable activities, such as by using promising anticipatory approaches

Next-Generation Data Governance

The proliferation of sensors, electronic payments, click-stream data, location-tracking, biometric feeds, and smart home devices, creates an incredibly profitable market for both personal and non-personal data. It is also leading to an amplification of harm to those from or about whom the data is collected. Because federal law provides inadequate protection for data subjects, there are growing calls for organizations to implement data governance solutions. Unfortunately, in the U.S., the concept of data governance has not progressed beyond the management and monetization of data. Many organizations operate under an outdated paradigm which fails to consider the impact of data use on data subjects due to the proliferation of third-party service providers hawking their “check-the-box” data governance systems. As a result, American companies suffer from a lack of trust and are hindered in their international operations due to the higher data protection requirements of foreign regulators. After discussing the pitfalls of the traditional view of data governance and the limitations of suggested models, we propose a set of ten principles based on the Medical Code of Ethics. This framework, first encompassed in the Hippocratic Oath, has been evolving for over one thousand years advancing to a code of conduct based on stewardship. Just as medical ethics had to evolve as society changed and technology advanced, so too must data governance. We propose that a new iteration of data governance (Next-Gen Data Governance) can mitigate the harms resulting from the lack of data protection law in the U.S. and rebuild trust in American organizations

Inivited Paper - Potential Changes to eDiscovery Rules in Federal Court: A Discussion of the Process, Substantive Changes and Their Applicability and Impact on Virginia Practice

The Federal Rules of Civil Procedure (FRCP) are subject to a unique process also once used in revising the Federal Rules of Evidence (FRE). Today, this process is followed in revisions of the FRCP, the Federal Rules of Criminal Procedure and the Federal Bankruptcy Rules. This unique rulemaking process differs significantly from traditional notice and comment rulemaking required for a majority of federal regulatory agencies under the Administrative Procedure Act (APA).1 Most notably, rule-making for the federal courts’ procedural matters remain unaffected by the invalidation of legislative veto. It is still widely, but wrongly believed, that the legislative veto was completely invalidated by INS v. Chadda

The Federal Rules Of Civil Procedure: Politics In The 2013-2014 Revision

Pre-trial discovery is perpetually controversial. Parties advantaged by strict privacy can often avoid justice when this is disadvantageous to their interests. Contrawise, parties advantaged by relaxed litigation privacy can achieve justice when all facts are accessible irrespective of their repositories, ownership or control. American-style pre-trial discovery in civil and regulatory enforcement is relatively rare around the world. U.S. discovery rules open nearly all relevant and non-privileged data for use by opposing parties. The traditional discovery process was costly and time consuming in the world of tangible paper data. However, these burdens have increased, rather than diminished as often predicted, as most data migrates to electronically stored information (ESI). This article provides a midstream assessment of the second major revision effort to accommodate U.S. discovery processes to the broad and deep problems arising during the past 20 years of document discovery experience with predominately ESI data sources

An Empirical Analysis of Development Processes for Anticipatory Standards

There is an evolution in the process used by standards-development organizations (SDOs) and this is changing the prevailing standards development activity (SDA) for information and communications technology (ICT). The process is progressing from traditional SDA modes, typically involving the selection from many candidate, existing alternative components, into the crafting of standards that include a substantial design component (SSDC), or 'anticipatory' standards. SSDC require increasingly important roles from organizational players as well as SDOs. Few theoretical frameworks exist to understand these emerging processes. This project conducted archival analysis of SDO documents for a selected subset of web-services (WS) standards taken from publicly available sources including minutes of meetings, proposals, drafts and recommendations. This working paper provides a deeper understanding of SDAs, the roles played by different organizational participants and the compliance with SDO due process requirements emerging from public policy constraints, recent legislation and standards accreditation requirements. This research is influenced by a recent theoretical framework that suggests viewing the new standards-setting processes as a complex interplay among three forces: sense-making, design, and negotiation (DSN). The DSN model provides the framework for measuring SDO progress and therefore understanding future generations of standards development processes. The empirically grounded results are useful foundation for other SDO modeling efforts

The Pandora multi-algorithm approach to automated pattern recognition of cosmic-ray muon and neutrino events in the MicroBooNE detector

The development and operation of Liquid-Argon Time-Projection Chambers for neutrino physics has created a need for new approaches to pattern recognition in order to fully exploit the imaging capabilities offered by this technology. Whereas the human brain can excel at identifying features in the recorded events, it is a significant challenge to develop an automated, algorithmic solution. The Pandora Software Development Kit provides functionality to aid the design and implementation of pattern-recognition algorithms. It promotes the use of a multi-algorithm approach to pattern recognition, in which individual algorithms each address a specific task in a particular topology. Many tens of algorithms then carefully build up a picture of the event and, together, provide a robust automated pattern-recognition solution. This paper describes details of the chain of over one hundred Pandora algorithms and tools used to reconstruct cosmic-ray muon and neutrino events in the MicroBooNE detector. Metrics that assess the current pattern-recognition performance are presented for simulated MicroBooNE events, using a selection of final-state event topologies.Comment: Preprint to be submitted to The European Physical Journal