The challenges of cloud storage in the collection, preservation and use of electronic evidence in the criminal process

Abstract

This paper considers the issues underlying the effective regulation of cloud infrastructure, focusing on territoriality, jurisdictional and evidentiary procedural principles and the need for amendments in Maltese legislation, conducive to a harmonised framework which reflects a constantly changing environment conditioned in part by technological change. Such amendments are to be complemented with training to prosecutors, members of the legal profession and judiciary alike and accompanied by better Court logistics enabling comprehensive and effective presentation of cloud-based evidence. The extent of law enforcement raises concern. Traditional principles of jurisdiction are not easily malleable in a cloud environment as manifested in the landmark Microsoft Cloud Case. Given the cloud’s nature, data transferring on the cloud may infringe privacy rights as the satisfactory monitoring of such data processing is slim. Technical difficulties exist not only is the data collection process itself, but also in the forensic data analysis. In Malta there is no legal framework in this regard and the investigating authorities merely follow guidance set out in UK practice. Also, the analysis is dependent on the systems the cloud service provider has in place and in the majority of cases on its collaboration. These issues and possible solutions are considered. Improvements and enhanced collaboration between law enforcement agencies are necessary to facilitate real-time data exchange. However, the extent of such collaboration whether through informal direct exchange or through formal MLA necessitates further analysis especially when faced with the dynamics of cloud computing. The need for definitions and changes at law to have a specific regime on the subject in line with accepted international norms is evidently manifested and possibly the major focus point legislators should immediately address.