Saturday, November 04, 2006

Mobile Telephone Evidence - Video Evidence


In response to numerous queries raised in 2003 about examining handsets with video or 'Still' images capability, where no effective tools are available to download images safely, it was suggested that examiners may well find it useful to video an examination. This was with respect to handsets designed for 3G-hybrid/GPRS/WAP/GSM technology enabled.

demonstrate images that were recovered were representative of the handset stored data and the output was a reliable representation.

The old adage of an independent examiner being able to reproduce the same results, whilst a useful tenet, was not the concern but how reasonably one could show, at first instance:

A) The procedures undertaken during the examination process
B) The recorded data that was recovered
C) To display the images accordingly.

This process is considered best practice in that it would enable an examiner, if challenged, to identify the procedures in handling evidence; the extraction processes; and which could support any contemporaneous notes made. It was foreseen that law enforcement might wish to serve images in 'Still' format, thus the time/date stamp, case reference, and authentication may also be recorded in a 'Still' image.

However, there might still be some additional policies that may not have been considered? In May 2003 the European Committee on Co-operation (CDCJ) adopted guiding principles for the protection of individuals with regard to the collection and processing of data by means of video surveillance (2003). The guidelines are applicable to data protection.

There are 12 guiding principles that have been adopted, which are recorded on Page 2 below, and which law enforcement might wish to clarify whether these adopted guidelines are applicable to evidence recorded on video during examination of particular handset data that may amount to video surveillance, for instance:

- where moving pictures stored in a handset record an individual or individuals, which are subsequently recorded to an evidential video. Or, where 'Still' images of the same are reproduced from an evidential video.

Any video surveillance activity should be undertaken by taking such measures as are necessary in order to ensure that this activity complies with personal data protection principles, in particular:

1) by ensuring that it is carried out in a fair and lawful manner for legitimate, specific, and explicit purposes. Personal data collected by means of video surveillance should not be further processed in a way incompatible with the purposes for which they were collected;

2) by only using video surveillance if, depending on the circumstances, the purpose cannot be attained by measures which interfere less with privacy, provided that the alternative measures would not involve disproportionate cost.

3) by making use of video surveillance in an adequate, relevant and non-excessive way with regard to the determined and specific purposes sought in the individual cases where there is a demonstrable need, in order to avoid any unintentional and unjustified infringement of the data subject's rights and fundamental freedoms, for example, the freedom of movement, and to ensure in particular respect of his privacy, even in public places;1

4) Video surveillance should be carried out in a way that does not make the persons recorded recognisable if the purpose of the processing does not require their possible identification;

5) by preventing the data collected from being indexed, matched or kept unnecessarily. When it proves necessary to keep data, these data must be deleted as soon as they are no longer necessary for the determined and specific purpose sought;
6) by refraining from video surveillance activities where the processing of the data would result in discrimination against certain data subjects or groups of data subjects exclusively on account of their political opinions, religious beliefs, health or sexual life, racial or ethnic origin;

7) by making clearly discernible in an appropriate manner that video surveillance is taking place, its purpose and the identity of the controller2 or by informing the data subject beforehand of the above. Other information,3 having regard to the specific circumstances, should be provided to the data subject, where this is necessary to guarantee fair processing of personal data and does not jeopardise the purpose of the surveillance;

8) by ensuring that during the storage period, the right of access to the data, and, where appropriate, the right of rectification, blocking and/or erasure, is granted to the data subject unless this would entail disproportionate effort;

9) by taking all technical or organisational measures necessary to safeguard the integrity of the collected information4;

10) In case of storage by the police of personal data by automatic means resulting from video surveillance, the principles of Recommendation No. R (87) 15 on the use of personal data in the police sector should furthermore be taken into account;

11) by limiting the use of video surveillance systems in the workplace to organisational and production requirements or to occupational safety purposes. This system should not be aimed at the systematic surveillance of the quality and quantity of individual performance in the workplace.

Employees or their representatives should be informed or consulted before the introduction or adaptation of a video surveillance system. Where the consultation procedure reveals a possibility of infringement of employees' right to respect for privacy and human dignity their agreement5 should be sought. In the event of a lawsuit or counterclaim, employees should be able to ground them on the recording made.

12) If personal data are recorded and kept, this should be done as far as possible in a way that allows data subjects to exercise their right of access, in accordance with data protection legislation, without obtaining information about other people.

Details about the 12 Guiding Principles can be found at the follow web URL:

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