Authentic digital records: laying the foundation for evidence: a foundation for proving that records submitted as evidence are reliable, usable, and have integrity is built with policies and procedures based on standards and best practices--and documentation that shows they have been followed.

Proving the authenticity of records is of great concern to information and records managers. While this concern initially involved the integrity of paper-based records, today it extends to include records in digital format. Following are the factors to be taken into account when laying the evidential foundations for submitting evidence in digital format into court in the United States.

Legal Foundations for Authenticating Digital Documents

Rule 901 of the U.S. Federal Rules of Evidence, which governs the authentication of evidence, says that the requirement of authentication is "satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims."

The type of evidence available to a court to determine the authenticity of a digital document will comprise a mix of technical attributes and organizational matters. The 2005 case of In re Vee Vinhnee, debtor, American Express Travel Related Services Company Inc. v. Vee Vinhnee illustrates the nature of the evidence required.

In this case, American Express claimed Vinhnee failed to pay credit card debts and took action to recover the money. After a trial that occurred in the absence of the defendant, the trial judge determined that American Express failed to authenticate certain records in digital format. American Express appealed the verdict, and the decision of the trial judge was affirmed.

In respect of the issues in this particular trial, Judge Christopher Klein pointed out that:

"...the focus is not on the circumstances of the creation of the record, but rather on the circumstances of the preservation of the record during the time it is in the file so as to assure that the document being proffered is the same as the document that originally was created."

In essence, the judge made the pertinent point that the issue is "that the record is what it purports to be." The judge continued to explain the issues involved in this process:

"The logical questions extend beyond the identification of the particular computer equipment and programs used. The entity's policies and procedures for the use of the equipment, database, and programs are important. How access to the pertinent database is controlled and, separately, how access to the specific program is controlled are important questions. How changes in the database are logged or recorded, as well as the structure and implementation of backup systems and audit procedures for assuring the continuing integrity of the database, are pertinent to the question of whether records have been changed since their creation.

"There is little mystery to this. All of these questions are recognizable as analogous to similar questions that may be asked regarding paper files: policy and procedure for access and for making corrections, as well as the risk of tampering. But the increasing complexity of ever-developing computer technology necessitates more precise focus."

Klein reached the conclusion that early attempts at establishing a foundation for electronic evidence were too cursory, while also accepting that judicial notice is commonly taken of the validity of the theory underlying the use of computers and the validity of the data generated generally. The judge then set out the tests described by Edward J. Imwinkelried in Evidentiary Foundations in respect to considering electronic records as a form of scientific evidence:

1. The business uses a computer.

2. The computer is reliable.

3. The business has developed a procedure for inserting data into the computer.

4. The procedure has built-in safeguards to ensure accuracy and identify errors.

5. The business keeps the computer in a good state of repair.

6. The witness had the computer readout certain data.

7. The witness used the proper procedures to obtain the readout.

8. The computer was in working order at the time the witness obtained the readout.

9. The witness recognizes the exhibit as the readout.

10. The witness explains how he or she recognizes the readout.

11. If the readout contains strange symbols or terms, the witness explains the meaning of the symbols or terms for the trier of fact.

The judge amplified the fourth test:

"The 'built-in safeguards to ensure accuracy and identify errors' in the fourth step subsume details regarding computer policy and system control procedures, including control of access to the database, control of access to the program, recording and logging of changes, backup practices, and audit procedures to assure the continuing integrity of the records."

[ILLUSTRATION OMITTED]

The members of the court proceeded to evaluate the exhibits submitted by American Express using the tests set out by Imwinkelried. It was made clear that the evidence of the custodian of the records at American Express was far too vague to be accepted. The following problems were identified:

* Generally, the evidence was vague and unpersuasive.

* The custodian did not have the requisite knowledge to provide the evidence.

* The person providing evidence on behalf of American Express merely asserted that he was an employee of American Express and was personally familiar with the systems, both hardware and software. He failed to inform the court of his job title or of his relevant experience and training that would provide an element of authority to his evidence.

* American Express failed to provide information about its computer policy and system control procedures, control of access to the relevant databases, control of access to the applicable programs, how changes to the data were recorded or logged, what backup practices were in place, and whether there were any audit procedures used to provide assurance of the continuing integrity of the records.

Although it will not be necessary to provide such an in-depth analysis of digital records in every case brought before a court, Klein's comments help illustrate the nature of the evidence that should be gathered if it is necessary to adduce such evidence.

Six factors in Authenticating Digital Evidence

The following factors are keys to proving the authenticity of digital records:

1. Method of preservation--Several methods are used to preserve electronic data, including technology preservation, technology emulation, and data refreshing. Risks attach to whichever method is used, and it is important to ensure that whatever method is employed can be defended should the digital document be the subject of a legal challenge as to its authenticity.

2. Identity--The identity of the document will need to be established, such as the name of the purported author, the date it was created, the place of origin, and the subject matter. It can be argued that this information forms part of the reliability of the document, meaning if it can be identified correctly, and there is a degree of certainty about the document that could be relied upon.

3. Integrity--As discussed in the UK National Archives' Generic Requirements for Sustaining Electronic Information over Time: 1 Defining the Characteristics for Authentic Records, integrity is considered to refer to the "wholeness and soundness" of the document. This, in turn, is related to whether the document can be considered to be complete and uncorrupted "... in all its essential respects during the course of its existence." ISO 15489: 2001 Information and Documentation--Records Management--Part I--General provides that integrity refers to the record being complete and unaltered. While these definitions of integrity might relate to the ability to verify that the content of a document has not been changed since it was written, finished, and adopted by the author, it might be necessary to consider other matters, including, but not limited to:

* Whether a time stamp was used, and, if it was, whether it can be considered to be accurate, and, if in doubt, what standards were observed with the particular type of time stamp used

* Whether it is a partially written document

* Whether the test for integrity of the document should apply only to the original version or whether any tracking regarding the document's subsequent circulation is necessary. Following from this, the integrity of the circulation metadata may be required.

* Whether the metadata can be accepted as reliable and meaningful

[ILLUSTRATION OMITTED]

The concept of integrity will be closely related to the organization's control over the preservation of a document, which is discussed in more detail below. Underlying the integrity of a document will be the use of digital signatures to provide evidence of verification that the document has not been altered.

4. Usability--The term usability is meant to cover the practical issues relating to retrieving, presenting, and interpreting the data correctly.

5. Attributes of storage--A range of issues arise from this perspective, mainly, but not exclusively, around technical obsolescence, which affects:

* The media upon which data is stored

* The application software used to create, process, and display data is replaced frequently, and some types of system software and middleware that are required by an application in order to work also change. This issue will affect older digital documents that were generated using software and machines that no longer exist. To be read, the text will require the use of different tools. The next question will be whether the application of a different tool affects a digital document in some way.