On 1st January 2015, the proposed changes to the World Anti Doping Agency (WADA) code will come into effect following eighteen months of ongoing consultation. The changes highlight the significance of doping within the sports industry and the continuing battle against it, and aim to improve the ability for the governing bodies to combat doping and bolster the anti-doping message. The code seeks to protect clean athletes internationally, and will upgrade its testing methods with an enhanced and more robust anti-doping programme, writes Phil Beckett.
The changes to the rules, in light of scandals such as Lance Armstrong, are focused on: increased sanctions for a majority of first time offences; firming up the rules on missing tests; and new violations related to support staff. As part of this, athletes will be subjected to a rigorous testing procedure, which will require allowing investigators access to sports professionals’ personal mobile devices. The sanctions will be tougher on those caught cheating, and any persons found assisting these crimes.
At the moment, testing is almost exclusively focused on biological tests, such as: are there any illegal substances in the athlete’s system? Are there are prohibited substances within the training locations? But in today’s connected world, this regime misses a trick. Rather than tackling the effects of any abuse, it would be more beneficial to consider the digital footprints left behind from any transaction or communication relating to an abuse in the first instance.
The thinking behind a concept is very similar to how law enforcement agencies tackle illegal drug trafficking, specifically, how they investigate suspected dealers. Therefore, when an athlete is being ‘tested’ as well as looking at the potential biological evidence, digital evidence should also be sampled and investigated. Although this may not provide conclusive proof such as banned substances being found in the athlete’s body, it would help identify intelligence and evidence relevant to doping as a practice.
Consider that the provision of banned substances is like a business. As any other business the sellers, the buyers and probably third parties, need to be able to communicate in order for a successful transaction to occur. In our data-rich world, a majority of these communications are likely to be electronic in nature. Therefore, if as part of a testing regime for doping within the sports industry, smartphones, tablets, computers, email accounts and other web-based sources were examined, it could provide very fruitful information.
By examining electronic devices, investigators could review emails, chat messages, SMS/MMS messages, social media activity, web postings and web browsing – all of which could identify clues that could help answer the “5WH” questions core to an investigation. Who? What? Where? Why? When? How? By adopting a forensic approach, not only could live messages be found and analysed, but also any significant deleted messages from certain sources can also be referenced. There could also be an offence linked to the deliberate destruction of these sources of evidence prior to a “test”.
An additional benefit to taking this forensic approach is the ability for the investigators to travel up the supply chain to the source of the problem. By examining the communications, they could establish intelligence and evidence about suppliers and third party intermediaries, rather than just on the abuser themselves. If evidence could be established about the source and/or distribution of banned substances, it would aid the cause, rather than just cracking down on the abusers.
Certainly concerns over privacy and data protection would need to be addressed, but effective measures can be implemented to deal with this. It could be argued that having to record all your movements and being subjected to random blood and urine tests is a much greater invasion of privacy than communication investigations. However, the regular and repeated investigation of these devices could prove too invasive for some. Therefore, if this concept was not implemented in full, a softened version may need to be introduced.
In the New Year, we will certainly see tougher sanctions – not just for athletes, but also for those who assist in the doping process. For the sporting world to remain committed to playing a full and active part in the fight against doping in sport, digital evidence and communications analysis must be seriously considered as part of the investigatory process.
Phil Beckett is partner at Proven Legal Technologies – the corporate forensic investigation and e-disclosure firm
