On the Need for Social Contract Theory in the Ethics of Digital Forensics

Olivier

2016

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Abstract

The conclusion of this paper is that a code based on social contract theory is not only indicated by the argument provided above, but will also assist in providing practical moral guidance. It is argued that such a code will necessarily be one that is not a mere list of good practices, but one that provides principles that need to be applied (or interpreted in a given situation) to provide moral insight.

Professional ethics typically manifests as normative guidelines describing the proper conduct expected from professionals. Professional status stems from extended education and training in a specific discipline that permit an individual to execute specialized tasks in society, where members of the society, due a lack of similar skills, have no option but to rely on the work of the professional. Codes of conduct are derived from various ethics theories with (professional) duty, (utilitarian) fairness and notions of professionalism (virtues) usually all present to a greater or lesser extent. Such codes typically also include some requirements of allegiance to the profession as well as submission to sanctions by professional bodies. Codes worth exploring for such examples range from ancient texts, such as the Hippocratic Oath and more modern codes in the domain of forensic science, with prominent examples being those of the AAFS, ASCLD, GIAC and SANS.

Distilling professional codes of conduct to their bare essence usually yields two elements: (1) The need to act with integrity and (2) to act to the best of one’s ability where the ability is expected to be at a very high level — a level that justifies the professional epithet. This paper argues that this second requirement is insufficient for forensics, in general, and digital forensics, in particular.

The basis of the paper’s thesis is the fact that forensics is a family of applied sciences. Ethics in science is a topic that has been studied from multiple perspectives: impact of research on participants, potential scientific bias of researchers (due to commercial, authority-related, gender-based and other influences that the researcher may be unaware of) and the expected behavior of the scientist. This paper takes its primary cue from this third category. Again, once distilled, it is clear that the primary demand on the scientist is to act with integrity. However, the paper argues that there are subtle differences between the expectations of integrity in the scientific and professional contexts. The forensic scientist has to conform to both flavors of integrity. Finally, the subject matter of the digital forensic scientist adds a third flavor of integrity that constrains his or her actions.

Above the phrase flavor of integrity was used to imply that the concept of integrity — nebulous as it may be — remains the same. However, what one emphasizes about it may differ from instance to instance. The (Platonic) ideal form of science is one that searches for the truth above everything else. Hence integrity in a scientific endeavor refers to choices that seek the truth above all else. Note that scientific integrity does not require the achievement of this ideal (which is impossible), but a dedication to seeking truth. At first glance the dedication to truth seems that an imperative approach to forensic ethics is appropriate. However, from Kant we know that autonomy is required for a deontic approach. While the forensic scientist should not be constrained in seeking the truth, this scientist is bound by science — and hence total autonomy is not an option. Similarly, seeking truth is a virtue that suggests an Aristotelian approach. However, Aristotle’s focus on a golden mean is inappropriate. Similarly, balancing outcomes in consequentialist theories renders utilitarianism impractical.

The paper suggests that the difficulty to find a home for forensic science in the best-known classical ethics theories stems from the fact that that forensics potentially exerts control over the individual by helping to determine guilt or innocence (keeping in mind it is not only the guilty who stand accused of wrongdoings). And this power may be sovereign. This suggests social contract theory as a key element of determining appropriate ethical behavior of forensic science (and, ultimately, the forensic scientist). Given that Rawls’s seminal work already straddles constraint of power through social contract theory and the domain of ethics, this approach is an obvious theory here.

The forensic power increases in the case of digital evidence. While forensic science makes truth claims about related to human, the digitalization of the everyday causes digital forensic power to permeate the individual’s essence. This is cause for the clear balance of power and purpose.

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