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US Legislations to regulate forensic science  

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jhup
 jhup
(@jhup)
Community Legend

I am reading a lot of noise from various sources because, from what I can tell, someone dug up a National Academy of Sciences panel report, chartered by Congress.

What I tracked down seems old, yet stuff is now bubbling up. (328 pages)

There are some legislation to move this under the US Federal government (here and here).

I am furious with the whole thing. The last thing I need is some mucky-muck government lackey telling me, I need to be proficient in DRDOS 3.31 because their committee decided so.

Our industry needs to come up with a consistent self regulation, or we are in deep trouble. Of course, we are so fractured, self-interested, the likelihood that we can band together is low.

I also venture to say that those who will take the lead, will be sorely lacking real-world experience, are outdated, or simply lack altruistic reason to get involved.

I know much of the writing is about fingerprint, hair, DNA, etc. and not digital forensics. I think however much we may object we cannot have it both ways. We cannot be under forensic science, yet not be regulated, if the government regulates. Government is like a glacier. It maybe slow, but mows down everything without exception. We would be regulated with all the other forensics.

From the US perspective, can some of you provide to links of recent bills (senate or house) relating to Forensics being regulated?

Do you think this is just hot air? What is the likelihood of federal government further regulating forensics, specifically digital forensic science?

mrgreen

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Posted : 20/04/2012 2:25 am
hcso1510
(@hcso1510)
Active Member

Jhup,
Personally I think your concerns are right on target. We all know of cases where a guilty party was wrongly convicted due to faulty forensic evidence. I’m sure you are referencing computers, but let me throw something else out there.

I may take a beating on this as historical cell phone tracking may not be looked at as a forensic science, but I’ll argue that it is, to some degree at least. Currently there is no nationally recognized standard in the training needed to say a device was in a specified area at a specified time.

The degree of mapping competency one walks away with can vary greatly from one vendor to the next. If you want to talk about regulation this seems like an area that is quite vulnerable. The FBI seems to be the major players in this, but unless someone is a task force officer I think it would be fairly difficult to receive training from them on this subject.

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Posted : 20/04/2012 7:54 am
armresl
(@armresl)
Community Legend

Jhup, you and I have talked at length about things like this.

IMHO we need to get away from the computer forensics. Were computer investigators, not private investigators, but computer investigators or ediscovery investigators.

The "forensic" is supposed to make it sound scientific, glamorous, an the sometimes illusion of much higher degrees of learning than a lot of us have. I'm not a Dr.

I've met computer forensic people who are Dr's, not with anything having to do with CF work, but they are Dr's.

The community is heavily fractured and I've noticed lots of start ups go under because of varying reasons.

Get a certificate and 3 letters after your name with a yearly fee and write a paper

Take a test and agree to not do any defense work and you're a member (even if they allowed defense people there would be so much resentment that you enter the room and it's palpable.

Answer some questions about technology which has been out of date for 10 years and you get some initials after your name.

I know of 2 people I've met in person that 100% should be on any board that has to do with deciding who can and can't have a membership in a group. My idea which I thought was good is that you have a board of 20 people, each applicant is rated by every board member and you need xyz points for membership. You're rated on the 2 scenarios you're given which have to do with the call out all the way through court, and you 100% have to do a moot court if you are going to do this work.

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Posted : 20/06/2012 2:08 pm
jhup
 jhup
(@jhup)
Community Legend

I think "forensic science" or forensics is legit, from my perspective as it is very explanatory. It is a science, and it is for the purpose of presenting front of a forum, or court.

I would love to see a list of reasons those start-ups went belly up as I am planning to kick off something soon.

What are you saying regarding the board? That we should start our own national licensing body?

I like the idea, but we would need 20 really heavy weight individuals. Remember we would compete with all the other certification organizations…

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Posted : 20/06/2012 11:24 pm
Patrick4n6
(@patrick4n6)
Senior Member

Licensing != Certification

Also, we'd need federal legislation in the US for national licensing to be worth anything, and since states already regulate most/all licensing schemes, I don't know if it would hold muster to a challenge from any state against a federal system.

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Posted : 20/06/2012 11:43 pm
mtbinva
(@mtbinva)
New Member

I believe in the interim, we have a broad definition of what a forensic expert is, regardless of the 3 letter acronyms that some disparage. According to US courts,

Rule 702 F. R. E., states, the expert may testify only "if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.".

Now, this covers a wide spectrum for sure, however, after the Casey Anthony debacle we can see how important it is be accurate and be a “product of reliable principles and methods”.

I personally think the certifications are a catalyst to put one on the path of this profession we call Computer Forensics, and until the division among our peers (ourselves) ceases to exist, we should make certain that we do in fact apply reliable principles and methods and validate, validate, validate. This also include the documentation that coincides with what we have done, along with the ability to explain our means and methods in lay terms.

We may have many courses and acronyms to choose from, but for now, there is a general work flow we all follow and the standard the courts have set for our profession. And the qualifications will certainly be questioned during the Daubert hearing. (Ref. http//en.wikipedia.org/wiki/Daubert_standard)

I also think the following article in DFI News covers a lot of what should be expected of a forensic expert. (Ref. http//www.dfinews.com/article/how-be-effective-expert-witness-court-part-1?page=0,1)

This is strictly my opinion, but until we become somewhat cohesive in our profession, this is pretty much all we have to go on.

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Posted : 15/08/2012 10:14 pm
LarryDaniel
(@larrydaniel)
Active Member

Having fought the licensing battle, unless something is going to be done at the federal level, state by state licensing is not a good route for a ton of reasons.

The first argument against state licensing is; Why is digital forensics singled out over other "forensic" discipines for licensing? What is good for the goose should be good for the gander. Licensing without qualifications is pointless and that has been the issue with licensing in every state so far. Have a PI license? You can practice as a digital forensic examiner. Not a PI and you can't qualify to be one? Then you are excluded from practicing what you are qualified to do. Not exactly a way to "protect the public interest".

The CDFS is working hard to create a standards body, and they have made good progress. In any endeavor of this type, it is going to take tons of work and several years to get to some sort of "standard" that is recoginized as the authority outside of just our circles.

In fact, it is going to take a lot of work and time to get one body to be recognized as the authority within our circles, which is a prerequisite to having it be the go to standard outside of our industry.

Certifications are not a bad thing, but they are not yet the "standard" that can be pointed to as a minimum level of qualifications. They do help in qualifying in court as an expert but have no bearing on testifying as a fact witness.

We need our equivalent of a Bar Association that will be eventually recognized by legal authorities as the standard of entry for practicing our discipline. However, if that were the case, then no one can be excluded based on their job, but would have to qualify. Prosecutors have to be licensed attorneys. So LE would not have an exception if it is to carry any kind of weight.

Internal computer forensic examiners would also have to meet the qualifications to practice, just like internal counsel has to be licensed as an attorney.

So the question is, do you grandfather everyone in to such a standards certification or would every one have to go through the process? Or is there a threshold that some would meet based on experience, training, and certifications that would be granfathered in? The DFCB has done a good job with establishing that kind of criteria.

The practical state of our profession is that there is no barrier to entry. Anyone can say they do computer forensics and get clients and do work, no matter what their background or qualifications are. It is truly a caveat emptor situation, but is that is true in most industries.

In time the market will shake out those that do private practice and mess things up, as attorneys tend to tell all their friends about experts, good and bad. If you decide to go out into the world and practice as a consultant, then your reputation is everything and at the end of the day, it is the only thing.

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Posted : 19/09/2012 7:16 am
pragmatopian
(@pragmatopian)
Active Member

So the question is, do you grandfather everyone in to such a standards certification or would every one have to go through the process? Or is there a threshold that some would meet based on experience, training, and certifications that would be granfathered in? The DFCB has done a good job with establishing that kind of criteria.

I think it would be preferable to avoid a grandfathering process; it would call into question the quality of the certification if existing practitioners were given a bye on the basis of prior experience and/or training and/or certifications. If there is to be a commonly accepted baseline certification (or series of certifications) for DF practitioners then I think all of us need to be directly assessed according to common criteria.

I also think any certification should be subject to regular and substantive renewal DF is changing more rapidly than many established professions such that a certification that I'm fit to practise in 2012 will not be a reliable indicator of my fitness to practise in 2020.

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Posted : 19/09/2012 2:15 pm
jhup
 jhup
(@jhup)
Community Legend

To bring this thread up to date -

The U.S. Department of Justice and the U.S. Department of Commerce's National Institute of Standards and Technology (NIST) announced today the establishment of a National Commission on Forensic Science as part of a new initiative to strengthen and enhance the practice of forensic science.

and

The commission will have responsibility for developing guidance concerning the intersections between forensic science and the courtroom and developing policy recommendations, including uniform codes for professional responsibility and requirements for training and certification.

yet

As a non-regulatory agency of the U.S. Department of Commerce, NIST promotes U.S. innovation and industrial competitiveness by advancing measurement science, standards and technology in ways that enhance economic security and improve our quality of life.

http//www.nist.gov/oles/doj-nist-forensic-science021513.cfm

😯 😯 😯

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Posted : 20/02/2013 1:53 am
Bulldawg
(@bulldawg)
Active Member

That NIST announcement seems to apply to all forensic sciences, not just computer forensics. I wonder if computer forensics would be included at all.

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Posted : 20/02/2013 2:33 am
jhup
 jhup
(@jhup)
Community Legend

Why would it not? NIST is responsible for building the National Software Reference Library (NSRL), and they have labs to test forensics equipment and software.

Following is a bill at the state level in Massachusetts. Pay attention to who are the members of the commission.

SECTION 1. Notwithstanding any general or special law to the contrary all forensic sciences laboratories providing analysis of drugs, DNA, or any other evidence to be used in any delinquency adjudication or criminal trial or conviction shall be independent and shall not be influenced in any way by any law enforcement authority or agency, or prosecutorial or defense authority or entity.

Oversight of any and all such forensic sciences laboratories shall be conducted by the Massachusetts Forensic Sciences Audit, Oversight, and Advisory Commission as established by section 184A of chapter 6. The oversight of any and all such forensic sciences laboratories by the Massachusetts Forensic Sciences Advisory Commission shall be to audit the work of all such laboratories to prevent the purposeful mishandling of evidence, encourage efforts to eliminate sources of human error in forensic examinations, ensure that the best forensic processes and procedures are utilized, and assure that proper accreditation is maintained.

All forensic sciences laboratories used for the examination and testing of evidence shall be accredited by an accrediting body that requires conformance to forensic specific requirements and which is a signatory to the International Laboratory Accreditation Cooperation (ILAC) Mutual Recognition Arrangement for Testing for the submission, identification, analysis, and storage of forensic analyses. All forensic sciences professionals employed by any such forensic sciences laboratories shall be required to obtain individual certification consistent with international and ISO standards. All such forensic science professionals shall have access to the certification process.

SECTION 2. There shall be the position of forensic sciences laboratory ombudsman in the executive office of public safety and security. The primary purpose of this position shall be to work with defense counsel, prosecutorial agencies, criminal justice system stakeholders, law enforcement, and the general public to ensure all processes, procedures, practices, and protocols at forensic sciences laboratories are consistent with state and federal law, best forensic law practices, and in the best interest of justice. The forensic sciences laboratory ombudsman shall mediate complaints that involve a dispute between any forensic sciences laboratory and defense counsel, prosecutorial agencies, law enforcement, or the general public. The forensic sciences laboratory ombudsman shall ensure that all criminal justice stakeholders and the general public are aware of the availability, responsibilities, and role of the forensic sciences laboratory ombudsman and shall regularly attend meetings of the Massachusetts district attorneys association, district and superior court judges, the committee for public counsel services, the Massachusetts bar association, and other local and regional bar associations within the commonwealth.

SECTION 3. Section 184A of chapter 6 of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by striking said section and inserting in place thereof the following new section-

Section 184A. Massachusetts Forensic Sciences Audit, Oversight, and Advisory Commission.

There shall be in the executive office of public safety and security a forensic sciences audit, oversight, and advisory commission, hereinafter called the commission, which shall review and audit the operations of forensic sciences laboratories within the commonwealth on a quarterly basis. Upon such review and audit of a forensic sciences laboratory the commission shall make recommendations to the director of such laboratory in order to improve the quality of work by such laboratory and ensure that all appropriate protocols and procedures are being followed. In addition, the commission shall make further recommendations, which shall include, but shall not be limited to the following a.) new scientific programs, protocols, and methods of testing;

b.) plans for the implementation of new programs, sustaining existing programs, and the elimination of programs that are no longer needed;

c.) protocols for testing and examination methods and guidelines for the presentation of results in court;

d.) qualification standards for the various forensic scientists of the laboratory; and

e.) when necessary, a review process to use when there is a request that a laboratory retest or reexamine evidence previously examined by the laboratory. Further, the commission shall conduct a bi-annual investigation and submit a report of the results of such investigation to the secretary of the executive office of public safety and security and the clerks of the senate and house of representatives on the volume of forensic services required by each county, including costs and length of time from submission for testing or procedures and return of results; the capacity of the commonwealth’s forensic services and funding requirements; the accreditation of forensic facilities and training of personnel; and the need for additional facilities.

The commission is authorized to review analytical work, reports, and conclusions of scientists employed by a laboratory. Records reviewed by the commission shall remain confidential and continue to be considered records of a criminal investigation, which shall be reviewed only in a closed session meeting of the commission, and each member of the commission shall, prior to receiving any documents for review, sign a confidentiality agreement, under the pains and penalties of perjury, stipulating that such member shall maintain confidentiality of and not disclose the documents or the contents of such documents.

The commission shall consist of 16 members and shall include the undersecretary of public safety for forensic sciences and 15 persons appointed by the governor as follows a forensic scientist or any other person with an advanced degree who has received substantial education, training, or experience in the subject of laboratory standards or quality assurance regulation and monitoring; the chief medical examiner of the commonwealth; a forensic scientist with an advanced degree who has received substantial education, training, or experience in the discipline of molecular biology; a forensic scientist with an advanced degree who has experience in the discipline of population genetics; a scientist with an advanced degree who has experience in the discipline of forensic chemistry; a scientist with an advanced degree who has experience in the discipline of forensic biology; a forensic scientist or any other person with an advanced degree who has received substantial education, training, or experience in the discipline of trace evidence; a scientist with a doctoral degree who has experience in the discipline of forensic toxicology and is certified by the American Board of Forensic Toxicologists; a member of the International Association of Identification; a member of the Association of Firearms and Toolmark Examiners; a member of the International Association for Chemical Testing; a director of a private or federal forensic laboratory located in the commonwealth; a member of the American Society of Crime Laboratory Directors; a member of the Academy of Forensic Sciences; and a member of the American Statistical Association.

The chairman of the commission shall be elected from among the members appointed. Staff shall be provided by the executive office of public safety and security.

The 15 members initially appointed by the governor shall serve the following terms as determined by the governor five members shall serve a term of two years; five members shall serve a term of three years; and five members shall serve a term of four years. Thereafter, all appointments shall be for a term of four years. A vacancy other than by expiration of term shall be filled by the governor for the unexpired term.

The commission shall meet quarterly and at such other times and places as it determines. Members shall not designate a proxy to vote in their absence.

Members of the commission shall be compensated for reasonable and necessary expenses incurred in the performance of their duties. Members of the commission who are public officers or employees shall not receive any compensation for serving on the commission, but may be reimbursed for expenses incurred in the execution of their duties.

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Posted : 22/02/2013 6:02 pm
pcstopper18
(@pcstopper18)
Member

Sorry that I’m late to the discussion, but as a matter of fact, the Charter doesn’t actually delineate work in the digital evidence area, which is obviously a problem. Check out this response by the IAI

http//www.theiai.org/current_affairs/CFSO_letter_Holder.pdf

I would say that at this time the Commission doesn't provide the necessary structure needed to bring digital forensics under one roof as far as the Feds are concerned. I share the earlier thoughts of the fragmentation within the digital forensics realm perpetuating the very problem we need to solve - having a recognized authority much like the Bar as mentioned or even like the American Medical Association.

Hopefully the organizations in the response will make headway. Time will tell for now…

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Posted : 14/11/2013 9:40 pm
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