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Legality of drive wiping
From: byte.bucket at 4a44.com (byte.bucket at 4a44.com)
Date: Mon, 11 Jan 2010 13:42:57 -0500
Hi all, I'm working on a new article that tries to answer the following question: When is expunging data valid to keep avoid e-discovery costs or protect personal privacy, and when would it be considered "destruction of evidence"? Is having set policy of "records are delete every x days," or "free hard drive space is wiped nightly" enough, or is more required? The above question is phrased from the stand point of a business, but I must admit I?m more interested in the answer from an individual standpoint. For those not in the know, wiping a drive after an investigation had begun (or if you have a reasonable expectation to believe a legal investigation it about to begin) is considered ?Destruction of evidence? or ?Spoliation of evidence?. Once an investigation is likely to begin, you have what is known as a ?duty to preserve?. Two likely outcomes if you are found to have caused spoliation of evidence are: 1. Prosecution under criminal statues concerning destruction of evidence (check with a layer in your jurisdiction). 2. The judge may slap you with a ?spoliation-based adverse inference?, which basically means a statement saying that since you destroyed evidence, it is likely there was something incriminating there, and the court should assume it would have help your adversary?s case. Now all that said there are exceptions made for data that has been removed because of normal, routine processes. I can think of many valid reasons for wiping a drives freespace routinely: 1. Protect privacy from others with physical access. 2. Fear that the machine might be stolen. 3. Donating the machine. 4. Reallocating the machine to someone of a different security level. But would that hold up in a court case? I'm having problems finding case law. I'd imagine no matter what your reasons, prosecuters will try to get a ?spoliation-based adverse inference? judgment against you if any drive wiping had been detected. Anyone have experience with this, or know a case where someone did drive wiping for privacy reasons, but the prosecution tried to make it seem like destruction of evidence that may never have been there in the first place? Adrian
I suspect you are going to get a lot of "I am not a layer but ... " responses. I'd suggest you try sending your question(s) to the EFF (http://www.eff.org) or to Denise Howell et al over at the "This Week In Law" podcast (http://twit.tv/twil). Either one should be able to help you identify any relevant case law. If you do decide to go this route, please let us know the outcome. -- byte_bucket
Current thread:
- Legality of drive wiping Adrian Crenshaw (Jan 11)
- Legality of drive wiping Jason Wood (Jan 11)
- Legality of drive wiping Adrian Crenshaw (Jan 11)
- Legality of drive wiping Bradley McMahon (Jan 11)
- Legality of drive wiping Tim Krabec (Jan 11)
- Legality of drive wiping byte.bucket at 4a44.com (Jan 11)
- Legality of drive wiping Mad Marv (Jan 11)
- Legality of drive wiping Adrian Crenshaw (Jan 11)
- Legality of drive wiping Jason Wood (Jan 11)