Cyber incidents, whether caused by external attackers or internal employees, present immense challenges to companies. In addition to ensuring business continuity, the forensic analysis of such incidents is essential to minimize damage, identify perpetrators, and collect legally admissible evidence. However, IT forensics operates in a highly complex legal environment. Companies must closely align legal requirements and technical capabilities not only to close security gaps but also to prevail in potential legal disputes.
The pressing questions are: How can incidents be clarified, perpetrators identified, and all legal requirements met at the same time? IT forensics provides essential tools but is not solely a technical discipline. It requires a precise interplay of technology, law, and organizational measures. Management, in particular, is responsible for creating an environment in which IT forensic measures can be implemented effectively and in compliance with the law—ideally before an incident occurs. This article highlights the legal aspects of IT forensics, from threat analysis to securing evidence that is admissible in court.
Threat Scenarios: External Threats and Insider Risks
The threats companies face can be broadly divided into two categories: external attacks and insider actions. External attacks, such as ransomware, phishing campaigns, or targeted infiltration by advanced persistent threats (APTs), are particularly dramatic because they often aim to destroy or steal critical data. Here, IT forensics is tasked with identifying the perpetrators and analyzing attack patterns to fend off future attacks.
However, insider threats are no less dangerous. Dissatisfied employees, departing executives, or external service providers with access to sensitive systems can cause just as much damage. Studies show that a significant portion of all economic criminal incidents is attributed to insiders. The spectrum ranges from deliberate sabotage and data theft to negligent behavior that creates security gaps. While external attacks often require technical countermeasures, dealing with insiders also involves psychological and organizational considerations.
Detailed Legal Requirements for IT Forensic Work in Operations
The legal framework for IT forensics is stringent. Companies operate in a tension between data protection, fundamental rights, and labor law requirements. Every measure must comply with the principle of proportionality: forensic investigations may only be carried out to the extent necessary to clarify the incident.
Data protection regulations, particularly the GDPR, set clear requirements for handling personal data. The processing of such data must be based on a legal basis, such as the consent of the individuals concerned or the necessity to protect legitimate interests. At the same time, the measure must not disproportionately infringe on employees’ rights. Covert investigations, such as monitoring IT usage data, are only permissible in exceptional cases when there is concrete suspicion of a serious crime. Employees must be informed about possible monitoring measures to the extent legally and practically feasible (Art. 13 GDPR). Exception: The suspicion of a crime justifies narrowly defined covert measures.
Corporate forensics must not conflict with labor law provisions or the mutual respect inherent in the employment relationship. Clear regulation in employment contracts or company agreements is essential to avoid legal conflicts. Furthermore, case-by-case assessments regarding specific measures are required. Criminal procedural regulations, such as Section 100a of the German Code of Criminal Procedure (StPO), may become relevant if forensic measures touch on criminal investigations. Companies should be aware that errors in securing evidence, such as insufficient documentation or unlawful access, can significantly impair the admissibility of evidence.

I work as a consultant in this area and regularly give lectures to explain how to deal with digital evidence in a business environment. The topic is not only relevant with regard to hackers: good digital evidence is needed in disputes with non-paying cyber insurance as well as in disputes between employees and employers.
Specific Challenges in Internal Investigations Against Employees
IT forensics in internal investigations requires particular sensitivity. The relationship between employer and employee is legally protected and based on mutual trust. Measures perceived as a general suspicion can not only cause legal problems but also sustainably damage the working environment.
Covert surveillance of employees is particularly legally delicate. Without concrete suspicion, such measures are inadmissible. Even with justified suspicion, interventions must be minimally invasive and documented. The works council plays an important role here: many measures require its co-determination, and companies should aim for close collaboration from the outset to avoid legal and organizational conflicts.
Another problem area involves former employees who often had access to sensitive information. Here, structured exit management is essential to ensure that access rights are revoked and taken data is controlled.
Employers have a legitimate interest in clarifying criminal and compliance violations. However, this interest must be balanced against the fundamental rights of employees, particularly regarding privacy and data protection:
- Permissibility of covert measures: These are only permissible under strict conditions, such as specific suspicion of a serious crime.
- Involvement of the works council: For major investigations or the introduction of new forensic tools, the works council must be involved under Section 87 BetrVG.
- Exit management: Former employees pose increased risks. Structured handling of sensitive data upon departure is therefore essential.
Legal Background to the Chain of Custody and the Importance of Documentation
The chain of custody, i.e., the seamless traceability of evidence, is an indispensable part of IT forensics. It ensures that evidence holds up in court by documenting every change and access. Without such traceability, evidence could be challenged as unreliable or manipulated.
Although German law does not explicitly regulate the chain of custody, courts place significant emphasis on its compliance. Every action, whether securing a data carrier or accessing log files, must be documented. Companies should implement standardized processes, including certified tools and cryptographic methods such as checksums, to ensure data integrity.
How the Evidence Situation Appears in a Courtroom
The quality of IT forensic work becomes apparent in the courtroom. Digital evidence is often difficult to interpret and can appear easily manipulated if documentation is incomplete. The testimony of IT forensic experts plays a decisive role here. Their expertise and the traceability of their work are often crucial in determining whether evidence is deemed credible.
Courts place great importance on safeguarding fundamental rights. Evidence collected without a legal basis is generally inadmissible. In particular, the admissibility of certain evidence can become problematic if covert surveillance was conducted without sufficient legal justification. At the same time, companies are expected to take all necessary measures to secure evidence properly. This requires not only technical expertise but also an understanding of legal requirements. Technical evidence is often complex and difficult for laypersons to understand. Therefore, the testimony of the IT forensic expert as a witness is central. The quality of documentation is critical to the credibility of the analysis.
What Preparation Should Management Undertake to Secure Evidence Properly
The best preparation for cyber incidents begins long before an attack. Companies should define clear processes that meet both legal and technical requirements. Digital evidence is particularly vulnerable to allegations of manipulation. To avoid this, the following steps should be considered:
- Use checksums and cryptographic methods to secure evidence.
- Maintain complete documentation of the chain of custody.
- Engage independent experts to validate forensic investigations.
This includes simulating all potential scenarios in advance and defining corresponding measures. An incident response plan that incorporates IT forensic measures is essential. Regular training for employees and the implementation of security policies help minimize risks. At the same time, companies should ensure that their IT forensic teams work with certified tools and clear guidelines. Close collaboration with legal experts is crucial to ensure that all measures are legally sound.
Through this proactive approach, companies can not only limit damage but also ensure they have the necessary evidence to remain legally and operationally capable in critical situations. Top priorities include:
- Use of certified tools for evidence collection.
- Documentation of all steps by an independent team to counter accusations of manipulation.
IT forensics is an indispensable tool for clarifying cyber incidents, but it faces numerous legal challenges. Companies must act preventively by implementing clear guidelines, training, and technical standards. Only in this way can evidence be collected in a legally compliant manner and used in court proceedings. A well-thought-out security concept not only protects against damage but also strengthens a company’s legal position in critical situations.
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