New, Active-controller Hard Drive Technologies Pose Challenges and Benefits

Toshiba plans a new line of hard drives that self-encrypt data and automatically wipe the drive (delete data) if the drive is removed. [FN1] A smart controller embedded in the hard drive provides the self-encryption and wiping capabilities. These new technologies pose potential challenges to lawyers (e-Discovery and digital forensics) and may provide benefits such as additional data encryption options to protect client data. (These issues are somewhat similar to those I mentioned in a previous article, entitled Gone in a Flash…Or Is It? Emerging Legal Issues in SSD Flash Drive Technology, about Solid-state Disk Drives (SSDs).)

How Do the Self-encryption and Wiping Work?

Traditionally, hard drives have been dumb devices that merely save data. The computer (operating system, BIOS, CPU, and subsystems) traditionally handled the read and write access to the hard drive. However, new hard drive technologies permit shifting the hard drive management to the hard drive itself by including a controller technology in the hard drive. (See my related article entitled Gone in a Flash…Or Is It? Emerging Legal Issues in SSD Flash Drive Technology for more information on controllers.) The controller acts as a small, special purpose, ancillary “computer” handling hard drive tasks. As drive controller technologies advance, the controller can go far beyond simple tasks such as managing read and write activity to adding on-the-fly encryption, remote drive wiping, and other capabilities. Note, the controller acts as a self-contained device—with a mind of its own for the lack of a better description.

The Benefits and Limitations of Self-encryption and Wiping for Lawyers

For lawyers, the new hard drive technologies pose a challenge and benefit.

Digital Forensics and e-Discovery Challenges

As clients use such drives, the lawyer will need to be especially aware of the emerging technologies in e-discovery and “digital forensics.” “Digital forensics” arises in cases where data needs to be recovered from a computing device—for example, deleted emails, deleted files, or files on mobile devices. The legal basis for accepting digital forensics assumes a pure, bit-by-bit “disk image” (not mere copy)of the target data. These new drives challenge that assumption because the drive itself may change the data. Previously, since hard drives were dumb devices and disconnecting the drive and re-attaching the drive to a special disk imaging device assumed the resulting disk image was a pure, unaltered, bit-by-bit “copy” of the target drive. That may no longer be the case with the newer, active controller hard drives.[FN2]

In e-discovery, requests to image drives or claims of spoliation may need to recognize the reality of new data storage technologies. The new, active controller drives have inherent ability to alter data. The parties will need to accept that heretofore traditional techniques might not be adequate with new technologies—imagine a request for imaging a drive in a civil case and inadvertently wiping the opponent’s drive when removed for imaging or a claim of spoliation when the active controller hard drive simply acted as it was designed.

Lawyer Data Protection

On the other side, such drives may bring compelling advantages to lawyers by providing an option for protecting data in the office. The self-encryption, moved to the hard drive itself, may provide more reliable protection than software-based (including operating system) encryption because the encryption occurs at a lower level in the system. Further, shifting the encryption to the hard drive controller may free the CPU from encryption overhead.

The capacity to automatically wipe the drive (delete data) may help minimize data loss if a hard drive is removed from the computer. (But depending on how implemented, not necessarily if stolen. To be effective if stolen, the drive would need to have remote wipe capability where a signal is sent to the device instructing the hard drive to delete all data.) This can be especially important when disposing of computers and computer embedded devices (such as some copiers or fax machines).

Conclusion—Be Aware that Technology Is Changing

The new active controller hard drives potentially pose challenges and provide benefits to lawyers. The take aways are: 1) new technologies may be helpful in the law office to protect data, and 2) the lawyer needs to be aware of these emerging technologies when addressing client matters.

Footnotes

FN1—Mention of a company name or product is not intended as an endorsement of the product. Mention is provided solely for illustration or education.

Credit for the story to: Jonathan Angel, Hard disk erases itself when stolen from a device, eWeek LinuxDevices.com (Apr. 14, 2011), http://www.linuxfordevices.com/c/a/News/Toshiba-MKxx61GSYD/?kc=LNXDEVNL042011; Self-wiping hard drives from Toshiba, Help Net Security (Apr. 13, 2011), http://www.net-security.org/secworld.php?id=10894; and John E. Dunn, New Hard Drive Wipes Itself if Taken Out of PC, TechWorld/CIO (Apr. 13, 2011), http://www.cio.com/article/print/679490.

FN2—See Gone in a Flash…Or Is It? Emerging Legal Issues in SSD Flash Drive Technology addressing similar issues with drive controllers on solid-state flash drives.

Original Posting: 21 April 2011
Revised: 06 July 2011