Legality of drive wiping

[tadaka at gmail.com (Jason Wood)]

Disclaimer:  I AM NOT A LAWYER....

I was at a forensics conference last year and similar questions were brought
up about this.  Here is what I understood from it.

If you do something routinely (and you might want to have some way of making
clear that it is routine) you should not have problems with regular drive
wiping etc.  However, once you have been given indication that an
investigation is on and that you will need to preserve information, the
wiping must stop.  Otherwise you run the risk of "destruction of evidence"
and such.  That's my understanding from sitting in the audience during a
panel discussion.

You might want to run it past a tech savvy lawyer for better advice on it.
I met a pretty good guy who happens to be a lawyer at the previously
mentioned forensics conference.  His name is Joshua Gillibrand and he goes
by @bowtielaw on Twitter.  Super nice guy and he has a load of case
information on things like this.  You might want to touch base with him on
it.

Jason


On Mon, Jan 11, 2010 at 9:59 AM, Adrian Crenshaw <irongeek at irongeek.com>wrote:

> 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
>
>
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-- 

irc: Tadaka
Twitter:  Jason_Wood
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