Memorandum

TO: Chief Prosecutor

FROM: Assistant Prosecutor

RE: Use of Digital evidence

DATE: 12 August 2017

Question Presented

Whether or not the digital evidences presented are material to the case. Validity of the usage of the
digital evidence collected under the Cybercrime Law

Statement of facts

The concept of communication or the state of exchanging data or information between entities is made
easy through advances in our technology. Republic Act No. 10175 or the Cybercrime Prevention Act of
2012 defines cyber as a computer or computer of network the electronic medium in which online
communication takes place. In our present times, the dependence on technology is so widespread which
result to the need of regulating the behaviour of people in the cyberspace. It is to be noted that, persons
of ill motive has invaded the cyberspace as a means of perpetrating fraud, mischiefs, and crimes.
Acquisition of digital evidence used in committing crimes shall help the State in the prosecution of
persons who violates the provisions of the Cybercrime Prevention Act.

Discussion

The US Department of Justice defines digital evidence as "information stored or transmitted in binary
form that may be relied on in court."( http://www.techrepublic.com/article/dont-let-your-improper-
handling-of-digital-evidence-sink-a-cybercrime-investigation/.Don't let your improper handling of digital
evidence sink a cybercrime investigation. Michael Kassner. Last accessed: August 8, 2017)

The first question that needs to be resolved is that what constitutes digital evidence in Cybercrime
Prevention Act. The digital evidences that can be acquired are: 1) Computer or mobile data, computer
program, which refers to representation of facts, information or concepts suitable for processing in a
computer system; 2) Computer or mobile documents, such as computer related communications (i.e. e-
mail, text) and transactions; 3) Images; 4) Videos; 5) Internet Histories; 6) Computer and mobile phones
used in the alleged crime and; 7) other related data.

It is to be noted that in cases of access of personal information on the internet, the acquisition of
evidence shall be valid if it is easily accessible on the cyberspace or the privacy tool for the social media
account was set to public, in that case the owner does not have a reasonable expectation of privacy. In
the case of Vivares v. STC, the Supreme Court held that It is, thus, incumbent upon internet users to
exercise due diligence in their online dealings and activities and must not be negligent in protecting their
rights. Equity serves the vigilant. Demanding relief from the courts, as here, requires that claimants
themselves take utmost care in safeguarding a right which they allege to have been violated. These are
indispensable. We cannot afford protection to persons if they themselves did nothing to place the
matter within the confines of their private zone. (G.R. No. 202666. September 29, 2014)

On the other hand, if the evidences are not easily accessible on the internet, and the person who might
be prejudiced by the acquisition maintained a reasonable expectation of privacy, a search warrant first
must be issued by the judge before the acquisition of digital evidence can take place.

After the acquisition of digital evidence, the public officers involved or the agency (NBI) tasked to
conduct investigation on the matter shall examine the evidence presented as to its genuiness. According
to the National Institute of Justice, Digital evidence should be examined only by those trained
specifically for that purpose. (http://www.forensicsciencesimplified.org/digital/how.html. Date last
accessed: August 8, 2017). Moreover, the evidence submitted to the NBI shall be photographed, marked
or documented to prevent alteration, modification or changes. It is the duty of the officers concerned to
preserve the evidences presented.

In order for the digital evidence to be used or relied in court: firstly, it must be procured in good faith by
the authority, meaning the evidence was not altered, modified or changed in the performance of their
duty to investigate; secondly, the evidences presented by the aggrieved party are true and genuine,
thirdly; there is initial determination of the prosecutor that the evidences presented are material to the
case at hand.