The Biggest Hurdle In a Data Breach Case? Getting the Defendant in Court

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Professor Cheryl Bader was consulted for a LegalTech News article that discusses the Capital One data breach and the reasons why it is so difficult to prosecute data breach crimes.

Prosecuting data breach cases also requires tracking and preserving digital evidence in a manner that complies with the rules of evidence, which have struggled to keep pace with technology’s evolution, said Fordham University School of Law professor Cheryl Bader, a former assistant U.S. attorney for the District of New Jersey.

“Applying traditional rules of evidence to a changing technological landscape is sometimes like trying to fit a square peg into a round hole,” she said. But she noted prosecutors are improving their understanding of how to prosecute technology-intensive cases, and judges are interpreting the rules of evidence “so the underlying purpose of the rules of evidence, which is to foster reliability, can be applied to virtual nonphysical facts.”

After collecting their evidence, when prosecutors are arguing their case they’ll also be tasked with explaining highly technical terms to jurors or a judge.

“I think one of the tasks is to draw that paperless paper trail showing the particular commands that would have allowed her to have access to this particular data and break down the evidence for the jury,” Bader said.

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