Electronic Evidence and the Constitution

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Electronic Evidence and the Constitution

• March 4, 2008
• Jonah Morningstar and Brian Bernel

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• Fourth Amendment
• Background

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Amendment IV, U.S. Constitution

• 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.

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Olmstead v. U.S., 277 U.S. 438 (1928)

• Narrow / Literal Interpretation based on
  trespass.
• The amendment itself shows that the search is to
  be of material things the person, the house,
  his papers, or his effects.
• The amendment does not forbid what was done
  here. There was no searching. There was no
  seizure. The evidence was secured by the use of
  the sense of hearing and that only. There was no
  entry of the houses or offices of the
  defendants.
• Here those who intercepted the projected voices
  were not in the house of either party to the
  conversation.

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Goldman v. U.S., 316 U.S. 129 (1942)

• Detectaphone?
• A fly on the (other side of the) wall.
• No trespass, no problem.

Is this a Detectaphone?
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Silverman v. U.S., 365 U.S. 505 (1961)

• A slight expansion.
• Technical trespass no longer required.
• Actual intrusion into a constitutionally
  protected area

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Katz v. United States, 389 U.S. 347 (1967)

• Formally overruled the trespass doctrine
  enunciated by Olmstead and Goldman.
• The Fourth Amendment protects people, not
  places.
• Katz justifiably relied on the privacy of a
  phonebooth.

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Justice Harlans Two-Part Katz Test

• Whether the individuals conduct reflects an
  actual, subjective expectation of privacy and
• Whether the individuals subjective expectation
  of privacy is reasonable.

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Kyllo v. United States, 533 U.S. 27 (2001)
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Kyllo v. United States, 533 U.S. 27 (2001)

• We think that obtaining by sense-enhancing
  technology any information regarding the interior
  of the home that could not otherwise have been
  obtained without physical intrusion into a
  constitutionally protected area constitutes a
  search at least where (as here) the technology
  is not in general public use.

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Reasonable Expectation of Privacy?

• Two elements
• SUBJECTIVE Whether an individual has an actual
  expectation of privacy
• OBJECTIVE Whether that expectation of privacy is
  one that society is prepared to recognize as
  reasonable

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Computer Closed Container

• Courts generally recognize that and individual
  has a reasonable expectation of privacy in the
  contents stored in closed containers.
• Therefore. . .your computer is Tupperware in the
  eyes of the law. Ok, thats a little too glib. .
  .
• What about files as containers?
• Courts are split on this one.

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Exceptions?

• When a computer has been made openly available.
• When the screen is in view of others, an
  expectation of privacy in the contents of the
  screen display is not reasonable.
• When the computer you have is one you have stolen
• In certain cases, when you relinquish control of
  a computer or disks to third parties

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Exceptions to the Warrant Requirement

• Direct Third-Party Consent
• Spouses / Domestic Partners
• Parents
• System Administrators
• Implied Consent
• Exigent circumstances
• Plain View
• Search incident to lawful arrest
• Border searches

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Privacy and New Technology

• Kyllo Applying the Katz Rule to New
  Technology
• As technology improves, narrowing of areas
  considered private.

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Non-Governmental Searches

• Private Party Exception and its limits US v.
  Jacobsen, 466 US 109 (1984)
• Computer Repair Issue

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Terrorism Warrantless Wiretapping

• Homeland Security The Terrorism Exception?

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Consent to Search

• Objectively private, but consent shows no
  subjective privacy
• Shared computers, password-protected areas. US
  v. Matlock, 415 US 164 (1974)

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Undercover Agents, Entrapment,

• Defendant cannot be entrapped. Jacobson v. US,
  503 US 540 (1992) different case than US v.
  Jacobsen
• Inducement and Predisposition

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Borders and Cyber Defense

• Cyber intrusions at the Border
• National Cyber Security Information Warfare