Cell Phone Privacy-Cyber Crime

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Computer Forensics and Cyber Crime

CHAPTER

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

The Fourth Amendment and Other Legal Issues

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

Learning Objectives

Develop substantive knowledge on the Fourth Amendment.
Learn the difference between warranted and warrantless searches and how they relate to computer-related searches.
Explore the controversies surrounding the USA PATRIOT Act.
Increase knowledge on privacy as it relates to the technology today.

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

Learning Objectives

Examine the application of the Fourth Amendment to both public and private employees.
Discuss the evolution of the expectation of privacy.
Become familiar with the various privacy acts that have been developed over the past two decades.

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

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. Marjie T. Britz

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. Marjie T. Britz

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. Marjie T. Britz

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. Marjie T. Britz

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. Marjie T. Britz

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. Marjie T. Britz

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. Marjie T. Britz

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. Marjie T. Britz

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. Marjie T. Britz

Exclusionary Rule

Weeks v. United States:

Creation of the exclusionary rule, federal cases – evidence improperly seized cannot be used as evidence, so, considered “fruit of the poisonous tree”
Will this apply to digital evidence?

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

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. Marjie T. Britz

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. Marjie T. Britz

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. Marjie T. Britz

Private- vs. Public-Sector Searches

Public employees (standard established in O’Connor v. Ortega)

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

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

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

U.S. v. Simmons
Employee indicted after system administrator discovered 1,000+ child porn images
Systems administrators may scan networks for non-work-related activity; no 4A violation

U.S. v. Monroe
Child porn discovered by system administrator seeing very large number of undelivered emails
Employee had no expectation of privacy on a government computer, which had prominent warning banner displayed

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

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. Marjie T. Britz

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. Marjie T. Britz

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

The Electronic Communications Privacy Act of 1986

Extended provisions found in Title III of Omnibus Crime Control Act of 1968
Includes wireless and non-aural electronic communications
Provides penalties for violators (both law enforcement and private)
Somewhat ambiguous
Congress trying to expand expectations of privacy with emerging technology

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

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

Three Titles under ECPA

Title I
Procedures for intercepting wire, oral, electronic communications
Law enforcement can identify transmissions but not contents absent a warrant

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

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

Title II (Stored Communications Act)
Prohibits providers from disclosing the contents of communication held in storage
Also prohibits disclosure of any contextual information
Exceptions

Title III
Regulates pen registers and trap and trace devices

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

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
Effectively expanding 1968 wiretap act to include electronic bulletin boards, including “work product” and “documentary materials”
“Plain view” doctrine can apply to material on bulletin boards
No prohibition of use, but civil penalties possible

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

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. Marjie T. Britz

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

Communications Assistance for Law Enforcement Act (CALEA)

Intended to preserve traditional levels of government surveillance
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. Marjie T. Britz

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

Also required the delivery of “packet mode communications” by these providers to law enforcement without a warrant

Supposed to heighten privacy protections provided by ECPA; Congress declaring that surveillance requirements have to be narrowly interpreted

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

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

Challenges to the CALEA
FBI tries to expand authority, contrary to Federal Wiretap Act
Justice Department successful in challenging scope of CALEA and ECPA

Applying the Wiretap Act to email interceptions: U.S. v. Councilman
Is the interception of emails by anyone other than the recipient a crime?
But Wiretap Act’s provisions don’t apply to stored messages; is there anything left?

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

The USA PATRIOT Act

USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001)

Many provisions would expire (sunset) after a few years; many later made permanent
Ten sections amounted to modification of prior laws to include technology-specific language (i.e., Title I – Enhancing Domestic Security Against Terrorism, Title IV – Border Protection, Title VII – Information Sharing, Title VIII – Strengthening Terrorist Laws)

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

The USA PATRIOT Act

Enhanced Presidential Authority: Section 106

Amended the International Emergency Economic Powers Act
Expanded the discretionary power of the President
President can seize and liquidate U.S. property of any foreign body who is suspected of facilitating an attack

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

The USA PATRIOT Act

Electronic surveillance and criminal investigations

Between U.S. v. Katz and the Ominbus Crime Control Act of 1968, most electronic conversations are protected
Title II of USA PATRIOT Act reduced expectations of privacy in many ways
Amended the International Emergency Economic Powers Act

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz

The USA PATRIOT Act

National security letters and other Fourth Amendment issues
Originally applied only to pursuit of agent of foreign power
Now applies to international terrorism, foreign intelligence investigation
Much broader range of data now covered, including driver’s licenses, student records, medical bills, etc.
Expanding requirement by banks, credit agencies to file suspicious activity reports to include domestic terrorism

Computer Forensics and Cyber Crime, 3rd ed. Marjie T. Britz