Computer Forensics And Cyber Crime PDF

Computer Forensics and Cyber Crime CHAPTER 9 The Fourth Amendment and...

Computer Forensics and Cyber Crime CHAPTER 9 The Fourth Amendment and Other Legal Issues Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc. Marjie T. Britz All Rights Reserved  The Fourth Amendment The first ten Amendments were enacted in response to the perceived tyrannical nature of the English system.  Part of system of checks and balances in American system, including tripartite federal government and division of authority, states, federal government Probable cause: Fourth Amendment (4A) requiring a warrant, based upon probable cause, to search Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc. Marjie T. Britz All Rights Reserved  The Fourth Amendment Reasonable suspicion: Officers may stop someone to investigate, but only with reasonable suspicion.  During the stop, officers may conduct a limited ("patdown") search for weapons. Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc. Marjie T. Britz All Rights Reserved  Warranted Searches and Computers Particularity: Has to be specific; not permission for generalized search, but subject to differing interpretations by courts about what that means Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc. Marjie T. Britz All Rights Reserved  Warranted Searches and Computers Seizure of evidence  Balance between public interest and individual's right to personal security free from arbitrary interference by law officers  Potential problem regarding the intermingling ("commingling") of personal matters with potential evidence  Complications can arise when searching storage devices, but if mentioned in original warrant, search is valid – U.S. v. Ross (1992) Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc. Marjie T. Britz All Rights Reserved  Warranted Searches and Computers Third-party origination  4th Amendment not applicable except when third party is acting under the direction of law enforcement Other arguments used in warranted searches  Staleness: Law enforcement has not executed warrant in timely manner (i.e., in U.S. v. Hay, the defendant was convicted of child pornography seized on a warrant based on information that was months old; conviction was upheld on grounds that pornographers kept their images) Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc. Marjie T. Britz All Rights Reserved  Warrantless Searches Consent  Scope must be reasonable  To determine validity, look at totality of circumstances to evaluate physical control, limited access Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc. Marjie T. Britz All Rights Reserved  Warrantless Searches In exigent circumstances and emergency situations, need to consider:  Degree of urgency  Amount of time necessary to obtain a warrant  Volatility of evidence  Danger at site  Suspect’s knowledge of impending police action  Risk of destruction of contraband Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc. Marjie T. Britz All Rights Reserved  Warrantless Searches Incident to arrest  For safety, to inventory items on arrestee  Does not include PCs, laptops, PDAs Plain view  Not an exception  No expectation of privacy if visible, but only if visible  U.S. v. Carey: If pursuant to warrant, and seen while executing, then valid search Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc. Marjie T. Britz All Rights Reserved  Warrantless Searches Border searches: Probable cause not required Other warrantless searches  Not usually related to computers: Autos, field interrogations, inventory searches Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc. Marjie T. Britz All Rights Reserved Electronic Surveillance and the Right to Privacy Types of recognized privacy:  Physical  Communication  Information  Territorial (this is most difficult to define, when considering cyberspace) Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc. Marjie T. Britz All Rights Reserved Private- vs. Public-Sector Searches Private – Evaluate expectation of privacy:  Whether the items or areas to be searched have been set aside for the employee’s exclusive or personal use  Whether the employee has been given permission to store personal information/items  Whether the employee has been advised that the system may be accessed by others Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc. Marjie T. Britz All Rights Reserved Private vs. Public-Sector Searches  Whether there has been a history of searches or inspections of the area  Whether there is a clearly articulated policy which identifies common areas versus private areas Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc. Marjie T. Britz All Rights Reserved Application of Ortega to Email: The Cases of Simmons and Monroe Status of Privacy & Emails System administrators of government equipment have the right to monitor their systems within the scope of their duties.  Routine systems protection monitoring  System management  Prevention of unauthorized access  Verification of security procedures, survivability, and operational security Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc. Marjie T. Britz All Rights Reserved Application of Ortega to Email: The Cases of Simmons and Monroe Monitoring by law enforcement requires consent of one party OR authorization by court order, warrant, or special probable cause circumstances. System administrators MAY NOT work under the direction of law enforcement to uncover evidence. Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc. Marjie T. Britz All Rights Reserved The Electronic Communications Privacy Act and the Privacy Protection Act of 1980 Privacy Protection Act Local, state, or federal authorities cannot search, seize publishable materials without probable cause Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc. Marjie T. Britz All Rights Reserved The Electronic Communications Privacy Act and the Privacy Protection Act of 1980 Criticized, like ECPA, for vagueness, ambiguity, and overbreadth Possible victims:  Publishers  Authors  Editors  Newspapers  Anyone disseminating info Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc. Marjie T. Britz All Rights Reserved The Electronic Communications Privacy Act and the Privacy Protection Act of 1980 Communications Assistance for Law Enforcement Act (CALEA) Required manufacturers of telecommunications equipment, service providers to develop systems with capability for surveillance of telephone & cellular communications, advanced paging, satellite-based systems, and specialized mobile radio Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc. Marjie T. Britz All Rights Reserved Other Questions Regarding Privacy Peer-to-peer or file sharing  Unclear if reasonable expectation of privacy applies Internet service provider subscriber records  Perhaps no reasonable expectation of privacy of basic subscriber info Websites  No expectation of privacy for material posted on the Internet Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc. Marjie T. Britz All Rights Reserved Other Questions Regarding Privacy Cell phones  Not the same as landlines, so what expectation here is reasonable?  Exigent circumstances may, according to a few courts, allow for valid warrantless searches  Search incident to arrest: Should not be, but courts have been inconsistent Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc. Marjie T. Britz All Rights Reserved  Other Legal Considerations Vicinage: May focus on locality of offense, not presence of offender, when it comes to selecting venue. However, with the Internet, where would that be? Undercover techniques: If real-time monitoring of chat room activity, no warrant needed Sentencing guidelines: Where sentence enhancement focuses on items, what does that mean with regards to child pornography? Courts are not consistent or clear on this. Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc. Marjie T. Britz All Rights Reserved  Conclusions Still need more guidance from U.S. Supreme Court and Congress regarding expectation of privacy and the convergence of technology, especially on issue of physicality Computer Forensics and Cyber Crime, 3rd ed. Copyright © 2013 by Pearson Education, Inc. Marjie T. Britz All Rights Reserved