Logs and the US Department of Justice Cybercrime Manual

Source: http://www.usdoj.gov/criminal/cybercrime/s&smanual2002.htm

Here is the most relevant excerpt; highlighting is mine.

Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

See, e.g., United States v. Salgado, 250 F.3d 438, 452 (6th Cir. 2001); United States v. Cestnik, 36 F.3d 904, 909-10 (10th Cir. 1994); United States v. Goodchild, 25 F.3d 55, 61-62 (1st Cir. 1994); United States v. Moore, 923 F.2d 910, 914 (1st Cir. 1991); United States v. Briscoe, 896 F.2d 1476, 1494 (7th Cir. 1990); United States v. Catabran, 836 F.2d 453, 457 (9th Cir. 1988). Applying this test, the courts have indicated that computer records generally can be admitted as business records if they were kept pursuant to a routine procedure for motives that tend to assure their accuracy.

However, the federal courts are likely to move away from this "one size fits all" approach as they become more comfortable and familiar with computer records. Like paper records, computer records are not monolithic: the evidentiary issues raised by their admission should depend on what kind of computer records a proponent seeks to have admitted. For example, computer records that contain text often can be divided into two categories: computer-generated records, and records that are merely computer-stored. See People v. Holowko, 486 N.E.2d 877, 878-79 (Ill. 1985). The difference hinges upon whether a person or a machine created the records' contents. Computer-stored records refer to documents that contain the writings of some person or persons and happen to be in electronic form. E-mail messages, word processing files, and Internet chat room messages provide common examples. As with any other testimony or documentary evidence containing human statements, computer-stored records must comply with the hearsay rule. If the records are admitted to prove the truth of the matter they assert, the offeror of the records must show circumstances indicating that the human statements contained in the record are reliable and trustworthy, see Advisory Committee Notes to Proposed Rule 801 (1972), and the records must be authentic.

In contrast, computer-generated records contain the output of computer programs, untouched by human hands. Log-in records from Internet service providers, telephone records, and ATM receipts tend to be computer-generated records. Unlike computer-stored records, computer-generated records do not contain human "statements," but only the output of a computer program designed to process input following a defined algorithm. Of course, a computer program can direct a computer to generate a record that mimics a human statement: an e-mail program can announce "You've got mail!" when mail arrives in an inbox, and an ATM receipt can state that $100 was deposited in an account at 2:25 pm. However, the fact that a computer rather than a human being has created the record alters the evidentiary issues that the computer-generated records present. See, e.g., 2 J. Strong, McCormick on Evidence § 294, at 286 (4th ed. 1992). The evidentiary issue is no longer whether a human's out-of-court statement was truthful and accurate (a question of hearsay), but instead whether the computer program that generated the record was functioning properly (a question of authenticity). See id.; Richard O. Lempert & Steven A. Saltzburg, A Modern Approach to Evidence 370 (2d ed. 1983); Holowko, 486 N.E.2d at 878-79.

Finally, a third category of computer records exists: some computer records are both computer-generated and computer-stored. For example, a suspect in a fraud case might use a spreadsheet program to process financial figures relating to the fraudulent scheme. A computer record containing the output of the program would derive from both human statements (the suspect's input to the spreadsheet program) and computer processing (the mathematical operations of the spreadsheet program). Accordingly, the record combines the evidentiary concerns raised by computer-stored and computer-generated records. The party seeking the admission of the record should address both the hearsay issues implicated by the original input and the authenticity issues raised by the computer processing.

As the federal courts develop a more nuanced appreciation of the distinctions to be made between different kinds of computer records, they are likely to see that the admission of computer records generally raises two distinct issues. First, the government must establish the authenticity of all computer records by providing "evidence sufficient to support a finding that the matter in question is what its proponent claims." Fed. R. Evid. 901(a). Second, if the computer records are computer-stored records that contain human statements, the government must show that those human statements are not inadmissible hearsay.

[Table of Contents]


B. Authentication

Before a party may move for admission of a computer record or any other evidence, the proponent must show that it is authentic. That is, the government must offer evidence "sufficient to support a finding that the [computer record or other evidence] in question is what its proponent claims." Fed. R. Evid. 901(a). See United States v. Simpson, 152 F.3d 1241, 1250 (10th Cir. 1998).

The standard for authenticating computer records is the same for authenticating other records. The degree of authentication does not vary simply because a record happens to be (or has been at one point) in electronic form. See United States v. Vela, 673 F.2d 86, 90 (5th Cir. 1982); United States v. DeGeorgia, 420 F.2d 889, 893 n.11 (9th Cir. 1969). But see United States v. Scholle, 553 F.2d 1109, 1125 (8th Cir. 1977) (stating in dicta that "the complex nature of computer storage calls for a more comprehensive foundation"). For example, witnesses who testify to the authenticity of computer records need not have special qualifications. The witness does not need to have programmed the computer himself, or even need to understand the maintenance and technical operation of the computer. See United States v. Salgado, 250 F.3d 438, 453 (6th Cir. 2001) (stating that "it is not necessary that the computer programmer testify in order to authenticate computer-generated records"); United States v. Moore, 923 F.2d 910, 915 (1st Cir. 1991) (citing cases). Instead, the witness simply must have first-hand knowledge of the relevant facts to which she testifies. See generally United States v. Whitaker, 127 F.3d 595, 601 (7th Cir. 1997) (FBI agent who was present when the defendant's computer was seized can authenticate seized files) ; United States v. Miller, 771 F.2d 1219, 1237 (9th Cir. 1985) (telephone company billing supervisor can authenticate phone company records); Moore, 923 F.2d at 915 (head of bank's consumer loan department can authenticate computerized loan data).

Challenges to the authenticity of computer records often take on one of three forms. First, parties may challenge the authenticity of both computer-generated and computer-stored records by questioning whether the records were altered, manipulated, or damaged after they were created. Second, parties may question the authenticity of computer-generated records by challenging the reliability of the computer program that generated the records. Third, parties may challenge the authenticity of computer-stored records by questioning the identity of their author.

1. Authenticity and the Alteration of Computer Records

Computer records can be altered easily, and opposing parties often allege that computer records lack authenticity because they have been tampered with or changed after they were created. For example, in United States v. Whitaker, 127 F.3d 595, 602 (7th Cir. 1997), the government retrieved computer files from the computer of a narcotics dealer named Frost. The files from Frost's computer included detailed records of narcotics sales by three aliases: "Me" (Frost himself, presumably), "Gator" (the nickname of Frost's co-defendant Whitaker), and "Cruz" (the nickname of another dealer). After the government permitted Frost to help retrieve the evidence from his computer and declined to establish a formal chain of custody for the computer at trial, Whitaker argued that the files implicating him through his alias were not properly authenticated. Whitaker argued that "with a few rapid keystrokes, Frost could have easily added Whitaker's alias, 'Gator' to the printouts in order to finger Whitaker and to appear more helpful to the government." Id.

The courts have responded with considerable skepticism to such unsupported claims that computer records have been altered. Absent specific evidence that tampering occurred, the mere possibility of tampering does not affect the authenticity of a computer record. See Whitaker, 127 F.3d at 602 (declining to disturb trial judge's ruling that computer records were admissible because allegation of tampering was "almost wild-eyed speculation . . . [without] evidence to support such a scenario"); United States v. Bonallo, 858 F.2d 1427, 1436 (9th Cir. 1988) ("The fact that it is possible to alter data contained in a computer is plainly insufficient to establish untrustworthiness."); United States v. Glasser, 773 F.2d 1553, 1559 (11th Cir. 1985) ("The existence of an air-tight security system [to prevent tampering] is not, however, a prerequisite to the admissibility of computer printouts. If such a prerequisite did exist, it would become virtually impossible to admit computer-generated records; the party opposing admission would have to show only that a better security system was feasible."). This is consistent with the rule used to establish the authenticity of other evidence such as narcotics. See United States v. Allen, 106 F.3d 695, 700 (6th Cir. 1997) ("Merely raising the possibility of tampering is insufficient to render evidence inadmissible."). Absent specific evidence of tampering, allegations that computer records have been altered go to their weight, not their admissibility. See Bonallo, 858 F.2d at 1436.

2. Establishing the Reliability of Computer Programs

The authenticity of computer-generated records sometimes implicates the reliability of the computer programs that create the records. For example, a computer-generated record might not be authentic if the program that creates the record contains serious programming errors. If the program's output is inaccurate, the record may not be "what its proponent claims" according to Fed. R. Evid. 901.

Defendants in criminal trials often attempt to challenge the authenticity of computer -generated records by challenging the reliability of the programs. See, e.g., United States v. Salgado, 250 F.3d 438, 452-53 (6th Cir. 2001); United States v. Liebert, 519 F.2d 542, 547-48 (3d Cir. 1975). The courts have indicated that the government can overcome this challenge so long as the government provides sufficient facts to warrant a finding that the records are trustworthy and the opposing party is afforded an opportunity to inquire into the accuracy thereof[.]

United States v. Briscoe, 896 F.2d 1476, 1494-95 (7th Cir. 1990). See also United States v. Oshatz, 912 F.2d 534, 543 (2d Cir. 1990) (stating that defense should have sufficient time to check the validity of a program and cross-examine government experts regarding error in calculations); Liebert, 519 F.2d at 547; DeGeorgia, 420 F.2d. at 893 n.11. Cf. Fed. R. Evid. 901(b)(9) (indicating that matters created according to a process or system can be authenticated with "[e]vidence describing a process or system used . . . and showing that the process or system produces an accurate result"). In most cases, the reliability of a computer program can be established by showing that users of the program actually do rely on it on a regular basis, such as in the ordinary course of business. See, e.g., Salgado, 250 F.3d at 453 (holding that "evidence that the computer was sufficiently accurate that the company relied upon it in conducting its business" was sufficient for establishing trustworthiness); United States v. Moore, 923 F.2d 910, 915 (1st Cir. 1991) ("[T]he ordinary business circumstances described suggest trustworthiness, . . . at least where absolutely nothing in the record in any way implies the lack thereof.") (computerized tax records held by the I.R.S.); Briscoe, 896 F.2d at 1494 (computerized telephone records held by Illinois Bell). When the computer program is not used on a regular basis and the government cannot establish reliability based on reliance in the ordinary course of business, the government may need to disclose "what operations the computer had been instructed to perform [as well as] the precise instruction that had been given" if the opposing party requests. United States v. Dioguardi, 428 F.2d 1033, 1038 (C.A.N.Y. 1970). Notably, once a minimum standard of trustworthiness has been established, questions as to the accuracy of computer records "resulting from . . . the operation of the computer program" affect only the weight of the evidence, not its admissibility. United States v. Catabran, 836 F.2d 453, 458 (9th Cir. 1988).

Prosecutors may note the conceptual overlap between establishing the authenticity of a computer-generated record and establishing the trustworthiness of a computer record for the business record exception to the hearsay rule. In fact, federal courts that evaluate the authenticity of computer-generated records often assume that the records contain hearsay, and then apply the business records exception. See, e.g., Salgado, 250 F.3d at 452-53 (applying business records exception to telephone records generated "automatically" by a computer) United States v. Linn, 880 F.2d 209, 216 (9th Cir. 1989) (same); United States v. Vela, 673 F.2d 86, 89-90 (5th Cir. 1982) (same). As discussed later in this chapter, this analysis is technically incorrect in many cases: computer records generated entirely by computers cannot contain hearsay and cannot qualify for the business records exception because they do not contain human "statements." See Chapter 5.C, infra. As a practical matter, however, prosecutors who lay a foundation to establish a computer-generated record as a business record will also lay the foundation to establish the record's authenticity. Evidence that a computer program is sufficiently trustworthy so that its results qualify as business records according to Fed. R. Evid. 803(6) also establishes the authenticity of the record. Cf. United States v. Saputski, 496 F.2d 140, 142 (9th Cir. 1974).

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