In archival science, records are considered trustworthy if they are reliable, accurate and authentic. However, electronic environments pose specific challenges to establishing trust in records.
According to Dickson (2011), there is a need to come to grips with the harsh realities that electronic evidence can be modified, it is vulnerable to hackers, the alteration of electronic evidence is difficult to detect and technicians need additional training in its use. Judges and attorneys alike need to develop a healthy scepticism towards evidence produced by digital technology. (Imwinkelried, 2005). While electronic evidence may present some unique challenges to admissibility and complicate matters of establishing authenticity and foundation, it does not require the proponent to discard his knowledge of traditional evidentiary principles or learn anything truly new, (Dickson, 2011).
The main challenges to be discussed here spans policies and regulations, the issue of authenticity, reliability, accuracy and integrity.
Policies and Regulations
In Ghana, although the Electronic Transaction Act in Ghana regulates all electronic communications, there are exclusions. The Act does not apply to the following:
- a negotiable instrument as defined in the Bill of Exchange Act, 1961 (Act 55);
- the grant of a power-of-attorney under the Powers of Attorney Act, 1998 (Act 549);
- a trust as defined in the Trustees Incorporation Act, 1962 (Act 106);
- a will as defined in the Wills Act, 1971 (Act 360);
- a contract for the sale or conveyance of immovable property or any interest in the immovable property;
- bills of lading;
- documents required for the registration of a company, partnership or sole proprietorships;
- the swearing of affidavits or statutory declarations before a Commissioner for Oaths or Notary Public;
- and any class of documents or transactions that may be notified by Gazette.
It can be clearly seen that these exclusions by the Electronic Transaction Act can become a great challenge for the nation to totally take advantage of the various benefits provided by the use of electronic records and electronic records management systems.
For example, most individuals these days write their thoughts, ideas and heart desires (wills) in their electronic diaries. The use of electronic signatures are also increasingly being plugged into various business application and information systems to enable easy signing of contracts, agreement, partnership and so on across borders.
In addition to the above, Atuguba’s 2017 public address stated that there are a few problems with evidence obtained through the internet including the issue of time difference, resulting in the Court having to sit quite early or late, depending on which country the evidence is being taken from, and for long hours. There are also sometimes, connectivity issues.
More so, the Evidence Act is limited in the sense that, the types of documents listed under Section 31B as Hearsay and Computer-generated Evidence is not all-inclusive of the types of electronic documents produced in modern times. Cassettes, tapes, microfilms and so on mentioned in the Act is no longer in active use. In digital forensics, to establish the trustworthiness of digital records, it is important to distinguish among the types of digital objects under consideration. Digital forensics divides digital objects into three groups: computer-stored documents, computer generated documents and computer stored & generated documents, all with varying degrees of acceptance in courts.
Also, unlike the Botswana Electronic Transaction Act which defines the electronic record, electronic records system, electronic signature and so on, the Ghana Electronic Transaction Act did not clearly define what is considered as electronic records.
The issue of Authenticity
According to the traditional rules for admissibility of documentary evidence, data/documents/records proffered as evidence must be capable of being shown to be authentic, that is, they must be proven to be what they purport to be.
In any court case, the party adducing the evidence is responsible for establishing a foundation of authenticity. A challenge to the claim of authenticity established by the party adducing the evidence of an electronic material may require access to the system that generated the information to determine whether it was operating properly at the time the evidence was generated.
In diplomatic of digital records, while authenticity implies integrity, the opposite is not true, that is, integrity does not imply authenticity. Akussah (2002) points out that electronic records require more critical security for their integrity and authenticity. Proof of authenticity is provided by a witness who can testify about the existence and/or substance of the record on the basis of his/her familiarity with it, or, in the absence of such person, by a computer programmer showing that the computer process or system produces accurate results when used and operated properly, and that it was so employed when the evidence was generated (i.e. Confirmation of Identity). Lastly, in reference to Section 136 of the Evidence Decree, there is a provision that; “where the relevance depends on its authenticity or identity, so that authentication is required as a condition precedent to admission, that requirement is satisfied by evidence or other showing sufficient to support a finding that the matter in question is what its proponent claims.
The issue of Reliability
The best evidence rule under the common law of evidence states that traditional documentary evidence must adhere to the “best evidence” rule, interpreted as a requirement for the original unless the original document/record is unavailable for accepted reasons. Electronic records pose a challenge for this traditional rule because the concept of original is meaningless in the electronic environment. Reliability in the electronic environment, therefore, comes not from the record itself but from the integrity of the system which generates and stores it and from the controls exercised on the creation, maintenance and use of the record in such a system as also explained under Section 31G of the Evidence Act of Ghana.
According to digital forensics, reliability is the trustworthiness of a record as to its source, defined in a way that points to either a reliable person (for computer-stored documents) or a reliable software (for computer-generated documents). Duranti & Rogers (2012) are of the view that if the source is a software application, trustworthiness will be more easily established if the application is open source because the source code will be publicly available.
However, it is important to note that while open source software suggested by Duranti & Rogers (2012) as a legal solution to affirming the reliability and authenticity of an electronic transaction may be accommodating due to its mass approval, their paper failed to discuss the disadvantages of open source software as supposed to proprietary software. Most recent hardware’s are incompatible with the open-source platform; raising the need to rely on third-party drivers.
This is a key concern for most computer engineers and software developers. Also, while organisations and institutions may benefit from the software because it is open, there is the need to be aware that it is also open for others. Meaning malicious users can view the code and look for vulnerabilities to exploit.
The issue of Accuracy
A US State federal judge in 1999 stated that; “while some look to the internet as an innovative vehicle for communication, the Court continues to warily and wearily view it largely as one large catalyst for rumour, innuendo, and misinformation. Anyone can put anything on the internet and no website is monitored for accuracy.” (St. Clair Vrs. Johnny's Oyster & Shrimp, 1999).
Digital entities are guaranteed accurate if they are repeatable. That is if the same process carried out on them produces the same outcome. Repeatability is supported by the documentation of each and every action carried out on the digital evidence.
Duranti & Rogers (2012) again suggest that open source software is the best choice for assessing accuracy, especially when conversion or migration occurs because the transparency of its code allows for a practical demonstration that nothing could be altered, lost, planted, or destroyed in the process. The accuracy of electronic evidence can also be done by a process or a system, that is, the business entity in question uses a reliable computer and has built-in safeguards to ensure accuracy and identify errors. (Opoku-Agyemang, 2010).
Implications for Records & Information Management
Records Management activities such as physical sorting, arrangement, accessioning, indexing, boxing and so on are being replaced with Electronic Records Management Systems that is able to perform intelligent indexing and automatically capture metadata elements from a record.
Also, records retention and disposition decisions which were the responsibility of the Records Management Professional has also shifted to the design stage of an electronic records management system where IT Professionals assign a timeframe in which a particular record should be kept in a system. This notwithstanding, it is important for Records & Information Management Professionals to ensure that the growing nature of electronic records does not take over our jobs but enhances it.
According to Carvalho (2011), the intervention of archival professionals is needed. In his article, he stated that good collaboration, with an open attitude between them and the IT personnel, and executive and administrative staff is needed in order to achieve the integrated management of active and inactive records within an archival system.
Elizabeth Diamond in 1994 described the archivist as a “forensic scientist” who needs to have the ability to clarify the meaning of a record, ask questions about the characteristics of records and their use, translate records and be able to testify that they have not been tampered with or falsified. In effect, Archivists, like forensic scientists become expert witnesses, testifying to the nature of the documents in Courts.
In Justice Atuguba (2017)’s public address on the admissibility of electronic evidence, he stated;
“Excellent record keeping and ensuring admissibility of evidence are of utmost importance in the case of electronic evidence. There must be no room to question the authenticity of the electronic record. One must not only have a focus of presenting evidence to the court, but the evidence must have enough weight to discharge the evidential burden.”
The varying Acts of Parliaments, presentations at government sessions and public addresses on the subject is clear evidence of the will of a modern judiciary to assist in dealing with the admissibility of electronic records.
It thus beholds on Records & Information Management Professionals to play their part in preserving and protecting electronic evidence in a manner that can be acceptable in any court and be aware of the foundations of current legal admissibility of electronic records.
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