Theoretical and regulatory foundations of digital tests

Abstract

The article outlines the foundations of the legal treatment of precautions aimed at preserving the integrity, authenticity, and auditability of digital evidence obtained through direct or remote access to computer systems. The theoretical and normative foundations of digital evidence—namely, its underlying premises—are not determined solely by the power of interference with private life and the automated processing of data. The current evidentiary landscape differs markedly from the scenario that prevailed for centuries until little more than a decade ago. Today, legal professionals face evidence generated automatically by artificial intelligence systems that bear no direct relationship to a specific empirical reality. The opacity of the computer systems that process digital information and constitute digital evidence is antagonistic to procedural publicity. Digital evidence is not subject to the same epistemological status as traditional evidence; it requires a procedural legal treatment compatible with its condition as a digital object, and the potentially misleading nature of its final form—its result—is insufficient to ensure its admissibility in court, given the volatility and the possibility of data manipulation, which is imperceptible unless its authenticity, integrity, and completeness are technically verified. Official forensic expertise is a relevant stage in the formation of digital evidence. The manipulability of this type of evidence does not allow, within the legal sphere, its formation by individuals who have vested interests or who act in accordance with pre-established factual hypotheses.