Estructura de Organización para la Ejecución del Proyecto La estructura organizacional puede ser definida como las distintas maneras en que se puede

Courts in the United States generally presume that records created in the normal course of business are authentic and can be rebutted by any direct evidence to the contrary(18). Absent specific evidence that tampering occurred, the mere possibility of tampering does not affect the authenticity of a computer record(19). The fact that it is possible to alter computer data is plainly insufficient to establish untrustworthiness(20). Further, any allegations of computer record alteration not accompanied by evidence of tampering goes to their weight, not admissibility(21). Normally, however, courts will disallow challenges to the authenticity of computer-based evidence absent a specific showing that the computer data in question may not be accurate or genuine—mere speculation and unsupported theories generally will not suffice(22).

This application of authenticity controls was illustrated at a district court eviden- tiary hearing where the defendant challenged the admission of chat logs, claiming that the government failed to lay a sufficient foundation. The defendant argued that the chat room printouts were incomplete and that undetectable “material alterations” of log content or names could have been made by the government. The district court allowed the logs and said that such claims went to the weight of the logs, not their admissibility(23). Authenticity was demonstrated by testimony from the government expert explaining the creation of the logs with his computer. Further, he testified that the printouts appeared to be an accurate representation of the chat room conversations among the parties to the communications, even though the printouts did not contain deleted information. This testimony was adequate to allow a reasonable juror to find that the chat room log printouts were authenticated.

At issue in People v. Lugashi (24) was the authentication of computer-based evidence in a criminal prosecution for credit card fraud. This evidence was offered

through the testimony of a systems administrator of the bank. The defense challenged this employee’s ability to authenticate the computer-generated records, claiming that she was not a computer expert; she was not involved in the programming, design, and operation of the bank’s internal systems; and her testimony was hearsay insofar as her understanding of the system’s functioning came from other technical staff.

The court rejected this argument and ruled that “a person who generally under- stands the system’s operation and possesses sufficient knowledge and skill to properly use the system and explain the resultant data, even if unable to perform every task from initial design and programming to final printout, is a ‘qualified witness”’ for purposes of establishing a foundation for the computer evidence(25). The court also commented that the defendant’s proposed requirement for computer expertise would require production of “hordes” of technical witnesses that would unduly burden both the already crowded trial courts and the business employing such technical witnesses “to no real benefit”(26).

The issue inUS v. Wilson (27)was whether the government’s use of computer log evidence proved by a preponderance of evidence that an electronic document was sent. At an evidentiary hearing in July 2001, the government Office of Indian Affairs (OIA) introduced log records showing that a particular letter was sent in November 1993. This log evidence was introduced by an employee who testified that if an entry was made in this log, the entry signified that the document had been sent. The defendant countered that in the time between when the proof was requested and the actual hearing, OIA upgraded its document tracking system and converted it to a new Oracle program. The claim, thus, was that the system could have been tampered with or an entry could have been added just recently to reflect the past transmission. The court ruled that the government had not met its burden of proving the transmission of data via the log evidence. Specifically, the court based this on the questionable circumstances surrounding the government’s production of the correspondence log; the inadequacy of the testifying witness’ capacity to authenticate the logs (the witness neither worked in the OIA docketing unit nor was she personally responsible for drafting, typing, copying, or sending out the document in question); and, the government’s failure to call another pertinent witness.

A very similar ruling was pronounced in a U.S. district court case concerning the reliability of IRS computer evidence(28). The government presented a computer- generated printout supporting its assertion that a Notice of Demand had been sent on a particular date and time. The court rejected its assertion that this printout established an irrebuttable presumption that the notice was in fact sent(29). Instead it found that the government’s inability to reconcile the irregularities between when the IRS said the mailing of the computer-generated records occurred and when its computers are programmed to send the mailing rendered it unreliable to prove compliance with legal requirements. The court queried, “[H]ow can this inconsistency be explained without resulting in uncertainty as to the accuracy of [the dates in question]”(30)?

For parties seeking to exclude digital evidence, these cases support a strategy that hones in on inconsistencies in the digital evidence collection and storage, both on the technical and human fronts. While increasing automation will diminish the number of witnesses qualified to authenticate computer-generated evidence like logs, inconsis- tencies at the human–computer interface—the collecting, processing, and storing of logs as evidence of electronic events—may provide fodder for digital evidence opponents

to rebut the current relatively low threshold of proving authenticity and reliability and force proponents of digital evidence to offer more comprehensive foundational proof(31).

6.

IT Experts as a Solution to the Ambiguous Treatment