Basic Legal Concepts

A digital forensic investigation consists of analyzing computer systems and storage devices to locate evidence relevant to a larger investigation. Unlike TV dramatizations, real forensic examinations are slow and methodical. A forensic examiner must conduct his or her part of an investigation carefully, thoroughly, ethically, and honestly.

Typically, the result of the forensic examination will be a report that will be introduced as evidence in court. For the evidence generated in an examination to be admissible in court, the examination must be conducted within certain boundaries. Examinations that are sloppy, which use substandard procedures, or which are conducted illegally will result in evidence being thrown out at trial. Thus, a good examiner needs some basic legal and professional knowledge.

Video Lecture

Origin of Laws in the United States

The supreme body of law in the United States of America is the United States Constitution.¹ Ratified in 1789, the U.S. Constitution establishes the structure of the federal government. It grants Congress the ability to create federal laws within certain limits, some of which are enshrined in the first ten amendments to the document, known as the Bill of Rights.

When Congress acts to create a law, the result is a federal statute.² Under certain limited circumstances, the President of the United States can issue an executive order that may carry the same effective force as a statute passed by Congress. As anyone who has watched the news in the last decade may have observed, Congress typically seems more preoccupied with fundraising and getting its members reelected than it does with actual rulemaking. Partially for this reason, Congress appropriates power to various federal agencies, which in turn can adopt rules that have the same force of law as a bill passed by Congress.

These agency-adopted rules are called federal regulations, and the penalties for violating them can include fines and prison time, effectively allowing agencies to write their own laws.³ Examples of agencies that routinely create and enforce regulations include the Federal Aviation Administration, Federal Communications Commission, Federal Trade Commission, Environmental Protection Agency, and many others.

Origin of Laws in the State of South Carolina

South Carolina was one of the original 13 colonies that revolted against British rule and became the original United States of America. On December 20, 1860, South Carolina became the first state to secede from the United States of America, eventually joining other southern states to form the Confederate States of America. After the resulting Civil War ended in 1865, South Carolina returned to the union of the United States of America.

In 1895, the State adopted its current State Constitution⁴, which (in heavily amended form) is the basis for state government and state law. This constitution includes a state-level bill of rights, establishes the general structure of state government, and grants the ability to make laws to the South Carolina General Assembly (the state legislature).

The General Assembly enacts laws through the standard legislative process of voting on bills before the body. Unlike Congress, the General Assembly is far more reluctant to grant rulemaking authority to state agencies. However, there are limited state regulations put into place by such agencies in instances where the General Assembly has granted authority.⁵ One such agency, the South Carolina Department of Health and Environmental Control, is an example. It creates and enforces regulations related to public health, food safety, and environmental protection.

At the local level, counties⁶ and municipalities⁷ in South Carolina can enact local laws through their respective legislative councils. A local law, called an ordinance, is limited in its scope and power. Ordinances cannot preempt state law, but state law routinely preempts local ordinances. For example, municipalities in South Carolina cannot enact their own gun control legislation⁸, nor can they regulate texting while driving.⁹ The maximum penalties for violating local ordinances are also set at the state level, providing only for fines or short sentences in county jail.¹⁰

Types of Law

Constitutional Law

At the top level of the federal legal system is the United States Constitution. Similarly, at the top level of the South Carolina legal system is the South Carolina Constitution. These supreme written documents provide the scope and boundaries for all other laws.

Statutory Law

The body of law collectively adopted by legislatures at the local, state, and federal levels, plus the various regulations imposed by state and federal agencies acting within their authorities¹¹, is called statutory law. Statutory law is so named as it consists of statutes passed by the various legislatures (or regulations created by agencies acting with authority granted by the legislatures). These laws, which are supposed to operate within the boundaries of the federal and state constitutions, are what most people imagine when they hear about “the law.” Importantly, statutes are both created by elected legislatures (regulations notwithstanding) and written.

However, contrary to what many people imagine about “the law,” there are many parts to our legal system that are more complicated than rules passed by a legislature. It turns out that statutory law only makes up part of our legal system. The rest of the law, which is equally important, arises from court cases and old traditions, some of which are only written in historical records.

Case Law

Whenever a case is appealed to an appellate or supreme court, any ruling in that case becomes a precedent that is to be followed in later cases. All lower courts are bound by these rulings and precedents, meaning that they must issue rulings in later cases that are consistent with precedent. This principle, known as stare decisis, is designed to ensure that courts follow the same legal reasoning in future cases, providing fairness and consistency to petitioners before the court. Stare decisis is considered so fundamental to the operation of the court system that supreme courts (at both the state and federal level) are reluctant to change precedents from prior rulings.

If a statutory law is found to be unconstitutional, for example, it is effectively removed from operation by the court, since no future person should be able to be found guilty of violating it. Even if the court upholds a law as constitutional, it still interprets the meaning of the law, potentially changing its application from what the original legislature may have intended. Therefore, court rulings can change the meaning and application of statutory law.

At the state level in South Carolina, the courts that can set precedents are the South Carolina Supreme Court and the South Carolina Court of Appeals. These courts can change the meaning of, or even declare unconstitutional, any state law or local ordinance within the state. An example of such a ruling occurred in 2010, in Aakjer et al. v. City of Myrtle Beach,¹² in which the Myrtle Beach motorcycle helmet ordinance was deemed unconstitutional due to its conflict with state law regulating motorcycle helmet use.

Case law at the federal level tends to be more dramatic, sometimes resulting in sweeping changes nationwide. Precedents can be set at the federal level by the United States Supreme Court and the United States Court of Appeals, and these precedents can change or invalidate federal, state, or local laws. An often-cited example of a court case leading to a major change is Roe v. Wade (1973), which struck down bans on abortion.¹³

Common Law

The United States of America has existed with its current form of government since 1789. In that time, there have been numerous court cases, resulting in a large volume of case law. Although there is no official “common law” at the federal level, the body of case law is large enough to have a similar effect. Also, since state-level cases may wind up in federal court, common law still matters at the federal level.

At the state level, the body of case law that is still applicable today predates the establishment of the United States of America. South Carolina courts can legally rule based upon precedents, customs, and principles inherited from colonial times. Since South Carolina was established as a colony (albeit one joined with North Carolina) in 1629, the body of potential case law extends back for more than 100 additional years when compared to federal law. Moreover, that body of extended case law includes case law from England. This extreme depth of case law forms what is known as common law,¹⁴ and it is still effective in South Carolina and 48 other states.

Examples of common law previously included “Common Law Marriage,” in which a man and a woman who lived together for 7 or more years could claim to be married in a legal sense. The South Carolina Supreme Court abolished Common Law Marriage for all future couples in a ruling on July 24, 2019, which happened after my original video lecture (above) was recorded.¹⁵

Another, in some ways chilling, example of the effect of common law is that it is possible to be arrested and imprisoned in South Carolina for a crime that isn’t written in any of the state statutes. Misconduct in Office is a blanket charge typically applied to state and local government officials who engage in unethical behaviors while on duty, such as accepting bribes or embezzling money. This crime is a common law misdemeanor, but it can result in a prison sentence of up to 10 years (which in state statutory law would require it to be classified as a felony).

Civil Law

An alternative to common law (and to some extent, to having a large body of case law) is to limit the courts such that they cannot rule outside the limits of statutory law. This system, known as civil law, is common in continental Europe. The basic ideas behind civil law descend from the Napoleonic Code, which itself was based on Roman Law. Within the United States, the state of Louisiana (originally a French colony) has a civil law system.¹⁶

Other Types of Law

There are numerous other types of law that are beyond the scope of the basic frameworks for digital forensics. However, they could be applicable in certain specialist situations. Examples include:

• Admiralty Law, which applies to events involving ships, crews, passengers, or cargo at sea.¹⁷
• Military Law, including the Uniform Code of Military Justice,¹⁸ which generally applies to active duty military and certain other uniformed services when operating with active duty military units.
• International Treaties, which can have the force of law when ratified.

Politics and the Courts

It is difficult to present case and common law without pointing out the various distortions used by politicians, pundits, and media on both sides of any political debate. Whenever a court makes a ruling, the losing side often claims that the court “made a law from the bench.” Meanwhile, the winning side normally praises the court for “upholding” something (whether it be a statute or principle). Amusingly, both sides are correct. Under the U.S. and South Carolina Constitutions, this is how our legal system is supposed to operate. Our system is a descendant of the English system, which predates the founding of the United States by some 600 years.

The great irony in today’s partisan atmosphere is that both major political parties would like to be more like Europe, only in opposite ways on any given issue. For example, the Democrats would really like to have Europe’s socialized healthcare system and would like for the courts to uphold the Affordable Healthcare Act (“Obamacare”) in furtherance of that objective. On the opposite site, the Republicans would like to have Europe’s civil law system, limiting the courts to ruling only within the narrow boundaries of statutory law, making it easier to repeal the ACA. On the issue of gun control, the roles of the major parties are largely reversed. The Republicans would like to be able to draw upon common law as a means of attacking any gun control legislation, while the Democrats would like to have the civil law system to limit the ability to overturn such legislation in court.

Notes and References

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