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Effectively Establishing a Digital Chain of Custody – Reducing Your Risks and Reaping the Rewards

“Chain of custody”.  Most people, and certainly those who are attorneys, law enforcement officers, or investigators, are likely familiar with this term and its importance to effectively trying and proving cases, both civil and criminal – though it is not only applicable to the practice of law, but to many other aspects of our lives as well.

We find it in our local grocery stores each day, where supply chain management is always a key issue – where did this food come from? Who handled it?  Was it handled properly? Was it contaminated? We find it in the products we purchase – was this item truly produced using sustainable methods? Who manufactured it? Who supervised that process? Who ensured that the materials are what the provider claims them to be? In the law – and in life – this chain of custody concept is an essential one; after all, we want to know with assurance that items are what they are claimed to be, and that they have not been altered or tampered with in some way.

Some aspects of legal practice may not be glamorous and exciting, but are nevertheless essential to effectively practicing a case and ensuring that the evidence you’ve gathered, and upon which you intend to rely on behalf of your client is actually admissible before the court that will be deciding your case.

As most attorneys, paralegals, law enforcement officers, and investigators already understand well, maintaining a clear chain of custody entails effectively documenting where the evidence has been, who has handled it, and how, from the time it is identified and collected until the time that it is ultimately presented to the court. It is an essential manner of demonstrating to the court and to the parties involved that the evidence in question was not tampered with, and is what its proponent claims it to be.


Tangible and Digital Evidence – What is Required?

Where more tangible forms of evidence are concerned, the legal standards that apply to maintaining and establishing a clear chain of custody are fairly time-tested and established. After all, for as long as attorneys have been trying cases, evidence has been necessary, and until recently, most of that evidence was tangible and physical in nature, and certainly, physical, tangible evidence is still of great importance in many matters. 

Increasingly, however, digital and electronic forms of evidence, including social media, web-based, and video evidence of all kinds are playing a vital role in the litigation of cases of all kinds, and understandably, questions may arise as to what is legally necessary to preserve a clear chain of custody that results in readily authenticated evidence. Without question, maintaining a clear chain of custody with respect to digital evidence is important, as it can easily be altered when proper precautions are not taken and necessary security measures are not in place.

In reality, however, what is required to prove that a clear and unbroken chain of custody exists with respect to digital evidence is, in many respects, similar to that which has always been required for all types of evidence, even if the format and nature of the evidence may be different.

In essence, establishing a valid chain of custody means being able to show where the evidence has been, who has handled, and its condition at all times, in order to establish that there has been no alteration or tampering of the evidence prior to the time it is presented to the court. With respect to web pages and social media accounts, then, this means that the party propounding the evidence must establish:

  1. When the record was originally produced;
  2. That the record is an accurate recording of the webpage in question;
  3. That the record was not subject to alteration from the time it was collected until the time it is presented in court.

It is indisputable that a party’s ability to get vital evidence admitted in a case rests largely on that party’s ability to prove that the collection process was sound and the chain of custody was clear. Failing to do so can invalidate critical evidence, and ultimately affect the entire outcome of a case. At WebPreserver, we know most attorneys value their reputation as a trusted advisor and advocate on behalf of their clients.  We know these attorneys know a large part of effective representation is supporting the position of your client with the best evidence you can gather.

What is the best evidence? The best evidence is that which supports your claim in the strongest way possible, and which is also thoroughly organized, captured instantly at the moment you need it, easily and readily authenticated, and collected in the course of a clear and established chain of custody so that it can be admitted for its vital purpose. With WebPreserver, you can feel confident that you have met these standards.


Protecting Your Chain of Custody: WebPreserver or a Remote Third Party Browser?

Why WebPreserver? Because when you use WebPreserver, all of the technology that you need is instantly at your fingertips.  When you make captures with WebPreserver, you are using a service with rigorous technology standards – and when it comes to digital evidence, there is simply no substitute for the truth of technology.

Capturing evidence with WebPreserver means that you instantly generate a forensic report using a forensic SHA256 hash, and HTML source code. It means that your online preservations contain key identifying Metadata such as the timestamp, the URL, the IP address, the date, and the time of capture, using a certified Stratum-1 atomic clock in compliance with the eSign Act.

As a result, you can capture the evidence you need at the moment you need it, with the assurance that when you do, you are collecting evidence which contains the necessary hallmarks of authenticity that courts are increasingly seeking.

Beyond gathering the evidence effectively and efficiently, the simple truth of the matter is that if you want to ensure a clear, sound chain of custody, you need to know where your evidence is, when it was gathered, and what is happening to it at all times. When you use WebPreserver, you have the absolute of assurance of knowing where your evidence is as all times. By storing all preserved data on your local network and machine only, you have no need to feel concerned about that evidence being held in a remote third-party system where it might be subject to tampering or corruption without your knowledge.

Some collection sites utilize virtual browsers that are physically isolated from the computer’s underlying operating system. As a result, while they might argue that is an advantage for the webpage not to directly cross the user’s desktop, the fact of the matter is that these collection methods could open the door to chain of custody challenges that might be hard to dispute. After all, when the evidence isn’t completely in your control, how can you rebut an argument that it remained untampered with and uncorrupted?  How can you prove that it is truly pristine? In reality, the truth is this – you can only control what is within your power to control.

When you use WebPreserver as opposed to a service which stores your evidence on its own browser, you are taking a wise and important precautionary measure to ensure that you maintain a full and complete legal chain of custody when it comes to the evidence you collect. The evidence that you collect will be in your control, and captured in accord with the standards set forth in the Federal Rules of Evidence and the eSign Act.  You need have no concerns that the digital information upon which you’re relying has been altered, corrupted, or otherwise tampered with, and you can ensure that it has been handled, stored, and forensically verified in a manner that will ultimately ensure you can rely upon it to prove your case.


Get the WebPreserver Plugin Today

When you’re busy trying to serve your clients in the most efficient and effective way possible, you have enough on your plate trying to consider the legal elements of your case and the evidence you need to prove them.

You don’t need the worry and stress involved with wondering whether or not the evidence you diligently searched for and gathered will ultimately be admitted. You want assurance. You want peace of mind. You want fast, effective, forensically pristine captures that will stand up in court, and serve your clients well.  You want WebPreserver. Call us today.

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