WE CAN only imagine the look on Bill Gates鈥檚 face when he learned that
four-year-old personal files were to be used as evidence against him in the US
government鈥檚 antitrust case against Microsoft. But it could have been anyone.
Who hasn鈥檛 kept files, labelled them private, kept them in a fairly secure place
and considered the matter closed? But it gets worse. Even if you delete data,
whether it鈥檚 a lengthy document or just a few remarks in an e-mail, those
forgotten words could come back to haunt you. Amid warnings that deleted data
poses a threat, 快猫短视频 has learned of one case where a British
worker has been sacked on the basis of personal e-mails deleted from her mailbox
several weeks earlier.
Now an American judge is proposing a change in the law to ensure that data
you delete disappears for good, at least as far as any court is concerned.
According to James Rosenbaum, a district judge in Minnesota, when you press the
Delete key, you intend to obliterate the information concerned. So even if it
has not physically vanished, then it should at least have ceased to exist in the
eyes of the law.
The problem arises because hitting Delete doesn鈥檛 actually destroy data at
all. 鈥淚t鈥檚 like removing the page number and the reference in the table of
contents,鈥� says David Pappas, a data recovery expert with the US National
Institute of Standards and Technology in Boulder, Colorado. The information is
still stored on the disc. All that鈥檚 gone is the map telling the computer where
it is.
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A computer records things indefinitely. 鈥淚t never forgets, and never
forgives,鈥� says Rosenbaum. A mixture of techniques, ranging from simply knowing
where to look to high-tech retrieval methods such as scanning tunnelling
microscopy, make it possible to dig up a whole host of information from a hard
drive or a floppy disc.
Rosenbaum is troubled by the fact that this allows words never intended to be
seen by others to be exhumed for all to see. He says it is unethical to take
words that were never intended to be published, and use them as evidence against
their author. It鈥檚 like punishing people merely for thinking things they
shouldn鈥檛, he says.
So Rosenbaum is seeking a way to protect people from the perils of modern
technology. In a recent issue of the progressive law journal Green Bag,
he proposes that the courts should no longer be permitted to attach legal value
to 鈥渃yber trash鈥�. At the very least, Congress should pass a law limiting the
legal lifespan of deleted data.
According to Caspar Bowden, director of the London-based think-tank the
Foundation for Information Policy Research, bullying employers could use
personal information obtained in this manner to gain a stranglehold over their
employees.
Many companies have strict codes governing what their staff can and cannot
write, Rosenbaum says. He fears that those who want to rid themselves of an
unwanted employee could dig up information they drafted, but never intended to
be seen, and use it as grounds for dismissal. That rude description of your boss
that you found so amusing before you consigned it to the trash could be dragged
back from oblivion and used against you.
Earlier this year a woman was sacked by a British aviation company because
e-mails she had sent and subsequently deleted from her Sent Items box had been
recovered by her employers, says Brian Palmer a solicitor at the firm Charles
Russell in London. Working as a personal assistant, she had been e-mailing her
former boss who had left the company to set up his own rival business. She was
under the impression that she had removed all traces of the e-mails, says
Palmer.
In Britain, the Regulation of Investigatory Powers Act, passed this year,
could make it easier to obtain this sort of data, says Bowden. But he also says
that British judges already take a lenient view when evidence of this kind has
been obtained in ways that are legally questionable. 鈥淏y and large judges
haven鈥檛 seemed to mind evidence being admissible even though it may have been
obtained illegally,鈥� he says.
Rosenbaum argues in his essay, entitled 鈥淚n defense of the Delete key鈥�, that
it is unreasonable and illogical to penalise people for words they don鈥檛 intend
to publish. He says people are led astray by the computer. 鈥淚t lies when it says
鈥楧别濒别迟别鈥�.鈥�
As the law now stands on both side of the Atlantic, it is possible to libel
someone even though you never showed the defamatory comments to anyone. 鈥淚f you
leave it in a place where someone can find it then that鈥檚 libel,鈥� says
Rosenbaum. And this includes leaving it as deleted matter on a disc drive.
Road to recovery
There are technical fixes that can help. It is possible, for example, to
install a program on your computer that overwrites data when you hit the Delete
key, making it much harder to recover. But these programs slow computers down,
and even they don鈥檛 obliterate the original message, says Peter Gutmann, a
computer scientist at the University of Auckland in New Zealand who specialises
in examining the different ways to recover deleted information.
It is even possible to dig up information that has been buried beneath
installations of entirely new operating systems and overwritten a number of
times. Gutmann says he knows of information that has been retrieved from a
Windows 95 operating system that had subsequently been overwritten with a
Solaris operating system and then by a Linux operating system.
Part of the problem is that your computer may have stored your message
several times over, in unsuspected ways. 鈥淭he information you want to get rid of
resides not only in the obvious file, or files it鈥檚 associated with, but in
temporary files, swap files, the registry, and who knows where else.鈥�
Not everything is on the side of the data-scavengers, however. Recovering
deleted data can be extremely laborious. A typical modern hard drive can hold
some 10 gigabytes of data. That鈥檚 roughly 80 billion bits of information. 鈥淥ur
technique can read an area of only 50 bits at a time, taking about five
minutes,鈥� says Pappas. So recovering a deleted message could take an age. 鈥淵ou
work it out,鈥� he says.
But it is still there if you鈥檙e prepared to look hard enough, so Rosenbaum
suggests introducing a 鈥渟tatute of limitation鈥� on deleted data. Arbitrarily he
offers six months as the cut-off time, after which deleted data could not be
used as evidence.
But Donald Ramsbottom, an English lawyer who specialises in the Internet,
says that even this modest step would be hard to implement. He suggests that
people might tinker with their machines to hide the true age of the residual
data. 鈥淎ll computers can be tampered with, whether it鈥檚 a crude changing of a
clock, or something more sophisticated like replacing time stamps and
watermarks,鈥� he explains.
Ramsbottom is also concerned that laws like Rosenbaum鈥檚 might give too much
protection to criminals. It would be somewhat bizarre if a 鈥淢r Big鈥� was able to
escape punishment simply because data dredged up from his computer had been
deleted more than six months before, he explains. Even in cases like the bomb
that brought down a Pan Am 747 over Lockerbie, new evidence is surfacing all the
time, Ramsbottom says.
But Rosenbaum dismisses such objections. Apart from major offences like
murder, most crimes have a statute of limitations, he points out. While
admitting that his proposals aren鈥檛 ideal, he says he is glad his essay has
sparked a debate. He remains convinced that these are issues that have to be
tackled by the lawmakers.