Computer Forensics Chapter 9: Fourth Amendment Insights

Computer Forensics and Cyber Crime: Chapter 9

• Fourth Amendment and Legal Issues:
  • The first ten Amendments were created in response to perceived tyranny in the English system.
  • Part of American system of checks and balances, including federal government and state/federal divisions of authority.
  • Fourth Amendment (4A) requires probable cause and a warrant for searching.

Learning Objectives

• Develop substantial knowledge of the Fourth Amendment.
• Differentiate between warranted and warrantless searches and their relation to computer searches.
• Explore controversies surrounding the USA PATRIOT Act.
• Understand privacy related to modern technology.
• Analyze the Fourth Amendment's application to public and private employees.
• Discuss the evolution of the expectation of privacy.
• Familiarize oneself with privacy acts developed over two decades.

The Fourth Amendment

• Reasonable suspicion: Officers may stop someone for investigation if reasonable suspicion exists.
• Limited ("patdown") search for weapons may occur during a stop.

Warranted Searches and Computers

• Particularity: Warrants must be specific, not a general search.

  • Subject to differing court interpretations.
  • The seizure of evidence balances public interest and individuals' right to security from law enforcement interference.
  • Concerns arise with items that may intermingle personal and potential evidence.
  • Validity of warrant-based searches on storage devices depends on warrant specifications (U.S. v. Ross, 1992).
  • Fourth Amendment does not apply to third party actions, unless the third party is acting under law enforcement direction.

• Staleness of warrant: If law enforcement doesn't execute a warrant in a timely manner, it may invalidate the search.

Warrantless Searches

• Consent: Consent must be reasonable in scope.
  • Validity depends on context.
  • Evaluate physical control and limited access.
• Exigent circumstances: Consider urgency, time needed for warrant, evidence volatility, site danger, suspect's knowledge of impending police action, and risk of contraband destruction.
• Incident to arrest: Searches for safety and inventory of items on arrestee.
  • Does not include things like PCs, laptops, PDAs.
• Plain view: Visible items are not protected by expectation of privacy.
• U.S. v. Carey: If a search is made while executing a warrant and something is in plain view, then the search is valid.
• Border searches: No probable cause required.
• Other warrantless searches: Autos, field interrogations, and inventory searches.

Exclusionary Rule

• Weeks v. United States: Evidence seized without a warrant is excluded.
  • Such seized evidence is considered "fruit of the poisonous tree."
  • Applying to digital evidence is an open legal question.

Electronic Surveillance and the Right to Privacy

• Types of recognized privacy: Physical, communication, information, and territorial (difficult to define, especially in cyberspace)

Private vs. Public Sector Searches

• Private sector: Evaluate the employee's expectation of privacy, personal use of items/areas, employee permission to store personal information, and if the system is accessible to others.
• Determine if there is a history of searches/inspections and whether a clearly articulated policy distinguishes common and private areas.
• Public Sector: O'Connor v. Ortega defines appropriate expectation of privacy, operational realities, balancing 4th Amendment protections against government intrusion, reasonable inception of search, and scope of subsequent actions.

Application of Ortega to Email: The Cases of Simmons and Monroe

• U.S. v. Simmons: System administrator discovered child pornography; no 4A violation as system administrators can scan for non-work items.
• U.S. v. Monroe: Similar case involving child pornography discovered through undelivered emails; no expectation of privacy due to warning banner on government computer.

Status of Privacy & Emails

• System administrators have right to monitor government-owned equipment for routine security and system management.
• Prevent illegal activity, unauthorized access, and ensure security of systems.

Monitoring by Law Enforcement

• Law enforcement monitoring requires either consent, warrant, or probable cause.
• System administrators should not work under law enforcement's direction to uncover evidence.

The Electronic Communications Privacy Act and the Privacy Protection Act of 1980

• ECPA (Electronic Communications Privacy Act) expanded provisions from the 1968 Crime Control Act.
• Includes wireless and non-aural electronic communications.
• Provides penalties for violators (law enforcement and private).
• ECPA has uncertain scope. (somewhat ambiguous).
• Title I describes procedures for intercepting wire, oral, and electronic communications.
  • Law enforcement can identify transmissions, but not contents without a warrant (Title I).
• Title II addresses stored communications and their prohibition from disclosure (exceptions).
• Title III details regulations for pen registers and trap-and-trace devices.
• PPA (Privacy Protection Act): Local, state and federal authorities cannot search or seize for publishing material without probable cause; applies to electronic bulletin boards, and some material may still fall under "plain view" doctrine. No prohibition on use but civil penalties exist.
• Criticized ECPA for vagueness, ambiguity, and overbreadth; possible victims include publishers, authors, editors, newspapers, and people who disseminate information.
• CALEA (Communications Assistance for Law Enforcement Act): Preserves government surveillance, and mandates communication equipment to support law enforcement surveillance of telephone, wireless, paging, and specialized mobile radio systems.
• CALEA requires providers to deliver "packet mode communications" to law enforcement.

Challenges to the CALEA and Wiretap Act

• The FBI tried to expand authority, but a legal challenge deemed this improper.
• The Justice Department successfully challenged the scope of CALEA and ECPA.
• The permissibility of email interceptions and other related issues are contentious, especially with the Wiretap Act, which does not cover stored email.

The USA PATRIOT Act

• The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.
  • Many provisions have sunset and some became permanent.
  • Ten sections modified prior laws, adding technology-oriented language to enhance domestic security, include border protection, information-sharing, and strengthen terrorism-related laws.
• Enhanced Presidential Authority: Amended the International Emergency Economic Powers Act.
  • Allows the President to seize assets of foreign entities suspected of facilitating attacks.

USA PATRIOT Act- Electronic Surveillance and Criminal Investigations.

• Balances the U.S. v. Katz protection with expanded surveillance abilities in certain scenarios under ECPA and the Omnibus Crime Control Act.
• Title II of the USA PATRIOT Act somewhat weakened privacy protections.

National Security Letters and other Fourth Amendment Issues

• Primarily applied only to pursuing agents of foreign power but was expanded to include international terrorism and foreign intelligence investigations.
• Scope expanded to include data such as driver's licenses, student records, and medical bills also covers suspicious activity reports filed by banks to include domestic terrorism.

Other Privacy Questions

• Peer-to-peer or file sharing: unclear if a reasonable expectation of privacy applies.
• Internet Service Providers (ISPs) subscriber records: no clear expectation of privacy.
• Websites: no expectation of privacy for material posted online.
• Cell phones: Differ from landlines.
  • Exigent circumstances may allow for warrantless searches, but court rulings are inconsistent.
• Vicinage: Focuses on offense locality, not the offender's presence.
  • Relevant in digital space—internet-based offenses.
• Undercover techniques: Real-time monitoring of chat room activity—no warrant necessary.
• Sentencing guidelines for child pornography offenses: inconsistent and unclear.
  • Courts haven't definitively defined these cases regarding digital crimes.

Conclusions

• Requires further guidance from the Supreme Court and Congress on digital privacy, especially expectations related to the increasingly convergence of technology and physicality.

This quiz delves into Chapter 9 of Computer Forensics, focusing on the Fourth Amendment and its implications for computer searches. Participants will learn about legal issues, warranted vs. warrantless searches, and privacy concerns in modern technology. Explore the intricacies of legal protections and the evolution of privacy rights in the digital age.