Caught in the Middle: Whether to Seek Help When the Organization is the Subject of an Information Technology Attack

Information technology is utilized in almost every facet of the modern business enterprise.1Unfortunately, when so many assets of a business are solely in electronic form, businesses sometimes find themselves trying to recover when someone within their organization has abused information technology to the detriment of the enterprise.2

When put in such a situation, businesses in the United States are faced with a multitude of laws and regulations that affect the discovery and acquisition of digital evidence to support its cause. Indeed, the victims of cybercrime will probably have the choice of pursuing remedies through the public or private sectors, or both. This choice usually is presented practically in the form of whether to request a law enforcement agency to provide assistance, or whether to employ alternative specialist assistance to gather digital evidence and pursue private remedies through the civil courts.3 There are great differences and implications associated with deciding which choice to make.

This paper provides a simple discussion of the various methodologies that may be used to gather digital evidence through civil or criminal procedure under United States law. To facilitate this discussion, a common scenario is offered to help delineate the differences between seeking digital evidence by way of criminal versus civil procedures. An overview of the basic methodologies that can be used to gather digital evidence under criminal and civil procedures will follow the sample scenario. Finally, an ...

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