ISSUES AND TYPICAL SOLUTIONS FOR FORENSIC DATA ANALYSIS IN THE CONTEXT OF CROSS-BORDER INVESTIGATIONS

Cross-border investigations often require data to be transferred from or to other countries in order to utilise the data in local litigation or regulatory proceedings. But, in the context of an internal investigation within a multinational enterprise without the involvement of authorities, the investigator often has to collect and analyse data from a legal entity that is based in another country.

The data can either be owned by the company itself or by its employees. Such data usually includes private data about the person being investigated or other persons. Quite regularly investigators are asked by clients from abroad to acquire, process or transfer electronically stored information comprising emails, personal user files, social media information, logging information or ERP data sets. This data is stored on the employee’s computer hard disk or on his mobile devices. Furthermore, the investigation may include the analysis of financial transaction data, logging information from the client’s IT-infrastructure, phone records or any other data from any other source. By analysing such data, investigators try to find digital traces to obtain evidence in order to verify or dismiss, for example, allegations of fraud.

In contrast to an investigation conducted by a German company against a German employee where the data acquisition and analysis is taking place in Germany and only German law applies, many different regulations and legal requirements must be adhered to in cross-border investigations. Whereas the EU provides a consistent framework of data privacy regulations, data transfers outside the EU are subject to many different regulations which increase the risk that the investigator is non-compliant.

Apr-Jun 2013 issue

PricewaterhouseCoopers