Concept of Computer Forensic
As a concept Computer Forensic may be identified as a “practice which is carried out by using computer examination and analysis techniques in order to obtain potential legal evidence”.
Legislations
The first draft law in Turkish Law in which the terms of “Computer Forensic” and “Legal Computer Forensic Expert” are used is “Draft Law on Regulation of IT Network Services and IT Crimes”, which has been prepared by the Ministry of Justice and is currently debated.
According to Article 35 of the Draft,
CHAPTER SIX
Investigation and Prosecution Procedures
Legal Computer Forensic Expert
Article 35 – (1) Only the persons who possess the legal computer forensic expert license may act in their capacity as expert regarding the crimes that fall into the scope of this Law.
(2) The rules and procedures regarding the legal computer forensic expertise and legal computer forensic expert license are set forth in a Regulation.
(3) The provisions of Law No. 5271 on Criminal Procedure dated 4 December 2004 regarding legal computer forensic experts shall be applicable.
If this article is to be examined:
Although the side heading of article 35 is “Legal Computer Forensic Expert”, both the concept which is identified under the caption “Investigation and Prosecution Procedures” and the concept which is referred by the sub-articles 1 and 2 of article 35 is the “Computer Forensic”. As the Draft law covers the IT network services and IT crimes, the evidences will submitted to the court by the legal computer forensic expert who also carries out the computer forensic investigation in disputes that will arise in the aforementioned matters. However, as the identification, exercise and the rules forming the procedure of computer forensic examination would unnecessarily extend the text of the law, therefore, sub-articles 1 and 2 of article 35 provides that “the investigation and prosecution procedures” means computer forensic procedure, nevertheless, it is stated that the details of the procedure will correctly be set forth by a Regulation that will come into effect.
The required characteristics of the legal computer forensic expert referred by article 35 and the procedure and method of obtaining “the legal computer forensic expert license” which is necessary for such expertise will be regulated by a Regulation that will come into effect after two years as of the effective date of the Law.
CHAPTER SEVEN
Miscellaneous and Final Provisions
Operative Effect
Article 41 (1) This Law
a)“Legal computer forensic expert” captioned article 35…. will come into effect after two years as of the effective date (of this law).
Depending on the current technology, Computer Forensic procedure has a variable nature. Naturally, the legal computer forensic experts who will participate in this process should follow the latest technology and current developments. In other words, legal computer forensic expertise is not an occupation which is about only having training for certain period of time and ending upon obtaining “legal computer forensic expert license” which is identified by the Draft law. Therefore, this license which is a proof of legal computer forensic expertise needs to be updated periodically according to the technological developments.
It is therefore very appropriate that the law requires that the persons who seek to be legal computer forensic expert are obliged to have license. And, the Regulation will determine which authority will be issuing this license. Consequently, the persons who wish to work as a legal computer forensic expert in Turkey need to possess, among others, this license that will be issued by this authority. The courts will have the opportunity to refer to the experts that are authorized by the relevant institution to examine the cases in their capacity as experts. Today, many international organizations provide computer forensic certification. To enable the courts to find the legal computer forensic expert that they will refer, it is crucial to determine which organizations issue the valid license.
It is stated in sub-article 3 of article 35 that the provisions in the Law on Criminal Procedure will be applicable in the concept of legal computer forensic expert. As the Draft law regulates the IT crimes, it is natural that it refers to the Law on Criminal Procedure regarding computer forensic matters. However, it should be pointed out that the computer forensic investigation and legal computer forensic expertise are not only related to the criminal lawsuits that are filed due to the criminal conducts. Computer Forensic process gains importance in the lawsuits, both civil and criminal, and preliminary investigations. Accordingly, the provisions of the Civil Procedural Law will be applicable in the expertise matters in the civil lawsuits.
Second part of this article is here ; Who Is Legal Computer Forensic Expert? – 2
Turkish version of this article is here : Adli Bilişim Uzmanı Kimdir?
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