The integrity of data message from a legal perspective (Part 3)

In Vietnam, electronic documents, emails, telegraphs, faxes,… which are familiar forms and can be easily collected and evaluated the integrity, electronic data is a much more comprehensive and diverse concept. The definition of electronic data specified in Clause 1, Article 99 of the Criminal Procedure Code 2015 may refer to: ” Electronic data is a symbol, letter, digit, image, sound or similar form created, stored, transmitted or received by electronic means”. Electronic data is collected from electronic media, computer networks, telecommunication networks, online, and other electronic sources collectively referred to as the electronic environment. Electronic data is invisible and immaterial because the electronic environment is a “virtual” environment. In addition, non-border or territorial electronic data may be initiated in one country while such data is stored in another (e.g., online gambling cases in Vietnam but the server system that stores gambling data is all abroad).

With the characteristics of electronic data being easy to change, edit, delete, forge and be able to copy the original to send to many places, the division of electronic data forms is essential when conducting collection, it makes it possible for the Procedure Authority to evaluate,  analyze the electronic data collected and make appropriate comments related to the case. For convenience, we can divide electronic data into the following forms:

  • Content data: All data is stored in digital formats such as text, voice, video, images and audio. This type of data is the most recognizable in criminal cases;
  • Identity data: Any data relating to the identity of the subscriber or customer such as the name provided, date of birth, postal or geographic address, in invoice and billing data, phone or email; Its types of services and duration;
  • Access data: Data relating to the start and end of a user’s access session to a service, which is really necessary for the sole purpose of identifying the user of the service (date and time of use, login and log out from the service, IP address,  User ID…);
  • Transaction data: Data relating to the provision of services provided by the service provider in order to provide context or additional information about that service and created or processed by the service provider’s information system (e.g., metadata,  location data);

Civil Procedure Code No. 92/2015/QH13 dated November 25, 2015, stipulates: Evidence in civil cases is what is real that the involved parties and other agencies, organizations and individuals hand over and present to the court during the proceedings or collected by the court in order,  procedures prescribed by this Code and used by the court as a basis for determining the objective circumstances of the case as well as determining the request or objections of the involved parties are grounded and lawful. In current legal documents, concepts such as Data messages, Digitized text from the paper text, Electronic records are all electronic data and are referring to the form of content data.

The legal value of the data message is undeniable. However, the evidence value of the data message must be determined based on the reliability of the way the data message is initiated, stored or transmitted; ways to ensure and maintain the integrity of the data message; How to identify the originators and other appropriate factors. Specifically, the data message used as evidence needs to have the following characteristics:

  • Objectivity: the data message is authentic, exists objectively; of clear origin, not to be misrepresented or deformed, found and stored on computers, mobile phones, tablets …
  • Legality: The message of keeping the material must be collected in accordance with the law; during the whole process of searching, using technology collected by law enforcement, data backup, preservation, recovery, analysis, search and examination of data as evidence, and most importantly, must be accepted by the court to use as evidence.
  • Relevance: The data message must be relevant to the incident; used to identify spatial details; at the time of formation, the content of the data message contains information expressing transactions between the parties, accepted or implicit agreements,…

This is appropriate because, according to current practice, the evidence is that the sound and image must be accompanied by a written confirmation of its origin, not simply the written explanation of the supplier without confirmation (Clause 2 Article 95 of the Code Civil Procedure). However, when applied to other types of evidence, this can be considered a major barrier for those who collect and provide it to state agencies on their own.

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