In the second of our series of “How Digital Forensics Can Help” articles, we’ll focus on an area that is most applicable to corporations – Theft of intellectual property. Intellectual Property (IP) is defined as:
The legal rights that arise from intellectual activity in the industrial, scientific, literary and artistic fields. This includes works of art, inventions, designs, trade secrets, words, phrases and symbols.
Pro Digital is not just a cool digital forensic firm, it’s also a company that was built from the ground up. Like many companies, we have proprietary and confidential information that we would not welcome our competitors to have. Most corporations fall into this category. Think about your company or companies you know. There are things that make them different and unique and many times, there’s some blood, sweat and tears (not to mention money) that has been invested over a significant period of time to help separate those companies from others who may claim to offer the same products or services. This is why intellectual property is so important – It is information that can potentially break a company if provided to competitors.
When Should Digital Forensics Be Used in IP Theft Cases?
In keeping with the best practices of the digital forensic methodology, whenever the slightest potential of an IP theft incident has occurred, a digital forensic consultant should be called immediately. Many times, these cases end up in some formal legal proceeding. Also quite often, the custodian of the digital evidence is also a party to that legal action, a circumstance in which an argument could be made that there is a conflict of interest. Even if that argument isn’t made, it’s best to call in a digital forensic consultant as soon as possible after the theft is detected to ensure they get a look at the evidence in the purest form possible.
Some cases may require notification of law enforcement, but this can also go both ways. In many state courts (including Virginia), theft of proprietary information can be handled both civilly and/or criminally. That means there are remedies in the state law for both types of legal actions. The decision of whether or not to pursue criminal charges against the suspected thief of the intellectual property is something that should be carefully considered and counseled upon with your attorney(s). If the decision is still “up in the air”, make sure you choose a digital forensic consultant who is knowledgeable about proper evidence handling and has testified in court as an expert witness (hint: one such consultant writes this blog).
What Types of Evidence Can Be Useful in IP Theft Cases?
Consider this brief case **example from a recent Pro Digital client: Acme company provides specialty technical analysis services to corporations and governmental clients. Acme has been in business for about 10 years and has developed a decent client base through their sales and marketing department over that time. For the majority of the 10 years, Bob Bouey has been Acme’s Sales Manager, but Bob has been slacking for quite some time and has even been counseled and disciplined for his failure to acquire new customers. Finally, Bob is fired, but he’s not dumb and saw the writing on the wall. A few days before he was fired, he transferred the entire Acme customer database to a thumb drive and took that information with him to a competitor, who now has acquired several of Acme’s (former) clients. Acme’s President finds out about this and files suit.
In this case, we were called by Acme to conduct a digital forensic exam on Bob’s former work computer to see if there was any digital evidence that Bob stole the customer database. There most certainly was! We were able to ascertain the date and time of the file transfer, the size of the file, the device onto which the database was transferred and even specific items such as the volume label of the USB thumb drive Bob put the database onto: BOBS FILES. The FBI calls that a clue.
Cases like these are probably more common than most companies are aware of. And this is just one example. In the age where company perks include mobile devices, computers and other cool electronic gadgets which all store high volumes of data, it’s important to also bear in mind that these devices only help to facilitate the potential theft of information… and they all contain digital evidence when that happens.
Digital Forensics in IP Theft Case Tips
So now that you know what types of evidence are potentially accessible in your IP theft case, what should you do to help ensure the most benefit your case? Here’s some tips about how to maximize effectiveness in IP theft cases:
If a problem employee is identified, start your documentation EARLY
Identify what digital items are most vital to the operation of your business and keep an open mind about how that may be exploited
If an intellectual property theft is suspected…
- Secure and lock-down any and all equipment used by the suspected thief immediately
- Make sure remote access is shut off, including any back doors
- Call a Digital Forensic Consultant and schedule a meeting as soon as feasible
- If criminal charges will be sought, notify law enforcement as soon as feasible
- Be aware that you may be without the computer or mobile devices used by the suspected thief for the duration of the examination and litigation
Digital devices are ubiquitous in our work and personal lives. Tech has interwoven itself into everything we do for better productivity, entertainment and communication. Because of this, it’s also best practices when an employee or associate is thought to be unhappy at work to assume that some sensitive and/or proprietary information will be absconded at some point before their access is cut off. By keeping this in the back of your head, you already start to increase your effectiveness in response to any suspected IP theft and set the stage for a better outcome in partnership with your Digital Forensic Consultant.
**For confidentiality, the names of the company and former employee were changed in this example**
Patrick J. Siewert, SCERS, BCERT, LCE
Professional Digital Forensic Consulting, LLC
Based in Richmond, Virginia
About the Author:
Patrick Siewert is the Principal Consultant of Pro Digital Forensic Consulting, based in Richmond, Virginia. In 15 years of law enforcement, he investigated hundreds of high-tech crimes, incorporating digital forensics into the investigations, and was responsible for investigating some of the highest jury and plea bargain child exploitation cases in Virginia court history. A graduate of both SCERS and BCERT (among others), Siewert continues to hone his digital forensic expertise in the private sector while growing his consulting business marketed toward litigators, professional investigators and corporations.