Friday, April 22, 2011

All Licensed Private Investigators Are Computer Forensic Examiners! Really?

There appears to be a trend within various states to require Computer Forensic Examiners to hold a Private Investigator's license. I was talking to a fellow Private Investigator on the phone today and she mentioned that she had heard that Illinois has now went this route. I have to admit that this trend makes no sense to me whatsoever.

It seems to me that any licensed Private Investigator is not necessarily a good Computer Forensics Examiner make. I mean if the only competency requirement to be a Computer Forensics Examiner is to hold a Private Investigator's license then some Private Investigator that barely knows how to turn a computer on can call theirself a Computer Forensics Examiner; right?  I thought that the goal of licensing was to have at least a minimum competency standard in the profession that one is working in? It would seem that holding a Private Investigator's license is ridiculously below the minimal competency standard to be able to perform a competent forensic examination of a hard drive or any other device that may contain digital evidence.

As it stands right now in some states; if you hold a Private Investigator's license you can conduct computer forensics and even call yourself a Computer Forensics Examiners. Isn't it just a little odd that someone with a Private Investigator's license that does not even know what the terms "MD5", "SHA256", "Checksum", "Hashing", "Metadata", "Write Blocker", "DD", "Mirror Image", and "Regex" mean as they apply to Digital Forensics can actually call theirself a Computer Forensics Examiner?

The first problem that I have with the notion that a Private Investigator's license is all that is required to conduct computer forensic examinations is that there is no minimal competency standard whatsoever. If there is one issue in any profession that really makes that profession look bad to the public; it is allowing incompetent people to practice in that profession. Now I am not saying that people should not have an opportunity to pursue whatever legal profession they would like. What I am saying is that part of that pursuit to make a living in a chosen profession is to make sure that one is educated, competent, and at the very least has a cursory understanding of the profession they are choosing to work in. There are plenty of classes, schools, seminars, and even on-line learning materials for one to become educated in computer forensics. All one has to do is read, study, and practice to become proficient in computer forensics. Without a minimum competency standard all it takes is just one person to make a mistake that they would have otherwise not made that ends up sending an innocent person to prison; and we all look like a bunch of "half-wits" to the public. In my opinion this is the harm that this ridiculous standard can cause our profession.

The second problem that I have with the notion that a Private Investigator's license is all that is required to conduct computer forensic examinations is that this excludes some of the most competent Computer Forensics Examiners that there are today from working in a profession that they have been working in before any Private Investigator ever thought of conducting computer forensics examinations. I don't think this is fair to the public. It certainly seems to limit the public's access to competent Computer Forensics Examiners.

The third problem that I have with the notion that a Private Investigator's license is all that is required to conduct computer forensic examinations is that I don't think that a Computer Forensics Examiner is as much of an Investigator as they are an Expert Witness. Certainly conducting computer forensics examinations does require one to employ some investigative techniques; but computer forensics is thought of by the courts as a science and this is why often enough one may have to qualify as an expert witness to give testimony on their results from their computer forensics examination. Usually one would have to qualify under the Daubert Standard if opposing counsel challenges their knowledge of computer forensics. My belief is that this definition more aptly applies to a Computer Forensics Examiner: "An expert witness, professional witness or judicial expert is a witness, who by virtue of education, training, skill, or experience, is believed to have expertise and specialised knowledge in a particular subject beyond that of the average person, sufficient that others may officially and legally rely upon the witness's specialized (scientific, technical or other) opinion about an evidence or fact issue within the scope of his expertise, referred to as the expert opinion, as an assistance to the fact-finder than this definition: "A private investigator (often abbreviated to PI), private detective or (informally) private eye is a person who can be hired by individuals or groups to undertake investigatory law services". Thus I see no reason whatsoever to require anyone that conducts computer forensic examinations to hold a Private Investigator's license.

I do see a very simple solution to this issue. Why not require people to be certified by the state as Computer Forensics Examiners? The state could develop a test or a battery of tests (written, oral, and "hands-on demonstrations") that would demonstrate that the person that is certified has at least demonstrated that they have a minimum standard of competency to conduct computer forensics examinations  The state would still generate a revenue. The state would also be effectively requiring Computer Forensics Examiners to demonstrate a level of competency that would intelligently protect the consumer. I believe that this is a far more intelligent route to go if the state wants to protect the consumer from professional incompetence in the Digital Forensics field.

I hope that this article is read by enough people in the right places to see the sense in repealing this legal standard or law in states that have instituted this legal standard or law. I think it makes far more sense than what some states are doing or moving towards currently.

As always; this is just my opinion!

Ricky Gurley.