Cloned data and the courts

March 14, 2019

As technology becomes increasingly pervasive in the transport sector (and in society in general), South African courts need to prioritise the issue of data cloning and its use as evidence.

In Director of Public Prosecutions versus Kirwan [2015] IECA, the court held that CCTV footage was so novel at the time that an additional form of explanation and supplementary evidence in support of its usage was needed. However, CCTV cameras are now ubiquitous and the footage that is generated by the cameras is now used in the courts as real evidence.

In a similar way, as technology has evolved, the courts are now expected to deal with different forms of evidence such as cloned data.

This is crucial in this dawn of the age of autonomous (or remotely controlled) vehicles, which will also contain a significant amount of data. Take, for example, the autonomous ships and trains (such as Rio Tinto’s high-tech train), which innately hold a large amount of data in a form that may be different to what has been seen previously by the courts.

At the State Capture Commission in 2018, an international expert was able to recover 99,9 percent of material in cloned hard drives that contained emails and other documents which may implicate a number of people.

The Chairman of the Commission ruled that the original hard drive containing the material, a cloned copy, as well as an extended version could be received into evidence.

A forensic clone is an exact replica of a hard drive. It allows for all the data to be accessible and includes deleted and partially overwritten files.

Data cloning also affects the preservation of evidence where there has been a collision at sea.  Data from the vessel traffic service (VTS) and very high frequency (VHF) information can be obtained in order to determine the sequence of events leading up to and causing the collision. 

VTS is a marine traffic monitoring system established by harbour or port authorities, (which is similar to air-traffic control for aircraft); VHF is used for voice and data radio communications on board vessels.

While the courts are progressively dealing with data cloning, legal practitioners commonly use cloning in the discovery process by preserving discovered documents in an electronic format that is electronically searchable, readily accessible and usable.

This also serves as a backup of hard-copy documents that may be lost or damaged sometime in the future.

It is important, therefore, for the courts to develop a flexible approach on data cloning and its use as evidence.

Abongile Swana is an Associate based in Durban. She is primarily a transport lawyer who deals with the litigation aspects of international trade, shipping, admiralty, marine insurance, transport, logistics and marine environmental law, as well as maritime casualty response and subrogated recoveries.

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