homework 3 paragraphs (Cyber)

CYBER CRIME

Chapter 9

Objectives

· Develop a substantive knowledge of the Fourth Amendment

· Learn the difference between warranted and warrantless searches and how they relate to computer-related searches

· Increase knowledge on privacy as it relates to technology

Details:

I. Fourth Amendment

· Protects Americans against unlawful detainment , inquiry, and search

· Predicated on Probable Cause (known facts and circumstances sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found)

· Probable Cause is a fluid concept, based on the assessment of probabilities in particular factual contexts, not readily reduced to a neat set of legal rules

· Reasonable Suspicion is a concept that law enforcement officers use to determine whether there are sufficient facts to justify the officer to question and possibly detain a person for investigative purposes; the standard for reasonable suspicion is less than probable cause

II. Warranted and Warrantless Searches and Computers

· Fourth Amendment requires all warrants to describe the place to be searched, the items to be seized, and applicable justifications-to prevent general, exploratory rummaging in a person’s belonging

· Law enforcement officers are challenged because searches of computers may involve voluminous amounts of criminal evidence or very small amounts of evidence hidden in a virtual warehouse of information

· Criminals may hide incriminating evidence in plain site on their systems or use encryption programs to hide evidence

· Courts have generally supported Law Enforcement by issuing warrants for large amounts of data:

· U.S. v. Hay (2000)-digital evidence

· U.S. v. Kufrovich (1997)-large amount of data

· U.S. v. Sassani (1998)-broad seizure of storage media

· Searches without warrants may be justified for the following reasons

· Required to prevent potential harm to human life

· Required to prevent the destruction of evidence

· Other circumstances which may frustrate legitimate Law Enforcement officers efforts

· Officers may seize a computer where evidence is at risk but should seek judicial approval before undertaking a search of its contents

· Person may waive their Fourth Amendment protection and give permission to Law Enforcement officers to search their property without a search warrant

· Consent in computer cases may involve third parties who have shared access or common authority to the computer

· Networked computers or devices with encryption mechanisms may be immune from consent searches because the third party may only have limited consent authority

· The burden of proof to substantiate the search is within the scope of consent is on the Law Enforcement officers

III. Electronic Surveillance and Privacy

· Types of recognized privacy:

· Physical

· Communication

· Information

· Territorial (this is most difficult to define, when considering cyberspace)

· Private Employer v. Public (Government) Employer Sector Searches

· Private Employer– 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

· 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

· Public Employer

· Whether employee’s expectation of privacy was consistent with operational realities

· Balance of 4th Amendment protection and government interest in intrusion

· Whether search was reasonable at inception was the subsequent scope

· 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

· 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.

· Web sites

· Information which users voluntarily post to Web sites does nt maintain a reasonable expectation of privacy unless affirmative actions have been taken to ensure said privacy (passwords)