Question

Project1

Imagine you are an Information Security (InfoSec) Specialist employed by the Makestuff Company, and assigned to the company’s Incident Response Team.

You have been notified by Mr. Hirum Andfirum, Human Resources Director for Makestuff, that the company has just terminated Mr. Got Yourprop, a former engineer in the company’s New Products Division, for cause.  

Mr. Andfirum tells you that, at Mr. Yourprop’s exit interview earlier that day, the terminated employee made several statements to the effect of “it’s okay because I have a new job already and they are VERY happy to have me come from Makestuff, with ALL I have to offer.”  Mr. Yourprop’s statements made Mr. Andfirum fear he might be taking Makestuff’s intellectual property with him to his new employer (undoubtedly a Makestuff competitor).  In particular, Mr. Andfirum is worried about the loss of the source code for “Product X,” which the company is counting on to earn millions in revenue over the next three years. Mr. Andfirum provides you a copy of the source code to use in your investigation. 

Lastly, Mr. Andfirum tells you to remember that the Company wants to retain the option to refer the investigation to law enforcement in the future, so anything you do should be with thought about later potential admissibility in court.

NOTE: The Fourth Amendment to the U.S. Constitution reads, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” 

The Fourth Amendment is most commonly interpreted to only affect/restrict governmental power (e.g., law enforcement). In fact, in Burdeau v. McDowell, 256 U.S. 465 (1921), the U.S. Supreme Court reviewed the use of documentary evidence (in a potential criminal case) stolen from McDowell’s office.

The Supreme Court held that the Fourth Amendment’s protection against unreasonable searches and seizures related only to governmental intrusion. When evidence is gained by the police or the government in ways that are considered illegal and unreasonable and violate the Fourth Amendment, the evidence may be inadmissible in court. That sanction, known as the “exclusionary rule” was developed by the courts to punish the police when they flagrantly violate the Fourth Amendment and other constitutional rights.

Here is another wrinkle in this area of the law: IF the police request a private individual to do something on their behalf that the police do NOT have a constitutional right to do themselves, that private person becomes an agent of the police, and anything gained as a result of such action may risk the sanction of having the evidence inadmissible in court.

As an IT professional working for a private company, you are not directly concerned with the Fourth Amendment. There are still legal considerations regarding investigations that you might consider in your private - non-government - roll. Courts, including the Burdeau Court, will also consider other actions, or rights of redress, against private individuals who illegally seize another’s private property (i.e. civil suit or criminal charges if taking amounted to a theft). Privacy rights are considered by the courts based on constitutional language found in several amendments including the due process clause of the Fourteenth Amendment. Note also that individual states often have their own privacy laws.

Now, with all of this in mind, based on the above scenario, the fact that a formal criminal investigation is a possibility and that your Company has no desire to be named in a civil lawsuit, answer the following questions in paragraph format. Remember to properly cite outside research where appropriate. There is NOneed to research areas of Forth Amendment search and seizure law that affect the police (government) only, such as exigent circumstances, the plain view doctrine, car searches, search incident to arrest, etc. Please thoroughly discuss the answerONLY from your role as given in the scenario. I am looking for you to take a position in your response to the questions and defend it based on course material, outside research and common sense. These types of issues, as well as search and seizure law in general, are litigated everyday in courts around the country and often have no clear-cut answers.

1.      There is a page in the Company’s Employee Handbook that states that anything brought onto the Company’s property, including the employees themselves, is subject to random search for items belonging to the Company.  There is a space for the employee to acknowledge receipt of this notice.  Mr. Yourprop has a copy of the handbook but never signed the page. Does that matter? Explain.

2.      Can you (or Mr. Yourprop’s supervisor) search Yourprop’s assigned locker in the Company’s on-site gym for digital evidence?  Support your answer.

3.      Can you (or Mr. Yourprop’s supervisor) use a master key to search Yourprop’s locked desk after he has left the premises for digital evidence?  Support your answer.

4.      Makestuff Company uses a security checkpoint at the entrance to the building. A sign adjacent to the checkpoint states that the purpose of the checkpoint is for security staff to check for weapons or other materials that may be detrimental to the working environment or employee safety. Screening is casual and usually consists of verification of an employee’s Company ID card. Can security staff at this checkpoint be directed to open Mr. Yourprop’s briefcase and seize any potential digital evidence?  Support your answer.

5.     Can you (or Mr. Yourprop’s supervisor) search Yourprop’s personal vehicle currently parked in the Company parking lot for digital evidence?  Support your answer.

6.     If evidence of the theft of intellectual property is found, Makestuff Company may seek to pursue criminal prosecution. Can Mr. Yourprop’s supervisor require local police investigators to search his personal vehicle which is parked on the Company parking lot?  Support your answer.

Project Requirements:

• Answer questions thoroughly. Each question should be answered with a minimum of 1-2 paragraphs, so do your research, be specific, be detailed, and demonstrate your knowledge;
• Answers to the above questions should be submitted in a single document (.DOC/.DOCX, .RTF, or .PDF), with answers separated so as to make it clear which question is being answered;
• The submission should have a cover page, including course number, course title, title of paper, student’s name, date of submission;
• Format: 12-point font, double-space, one-inch margins;
• It is mandatory that you do some research, and utilize outside resources!  References page: APA citation style (see https://owl.english.purdue.edu/owl/resource/560/01/ for help).