Fourth Amendment Issues of Investigating Computer Crimes

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Fourth Amendment Issues of Investigating Computer
Crimes
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• Two main sources
• Fourth Amendment
• Privacy laws in the U.S. Code
• Title III
• ECPA
• Pen register and trap and trace devices statue

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Search without a Warrant

• Does the person have a reasonable expectation of
  privacy.
• If not does the search fall under a specific
  exception?

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Katz Test

• Two Prongs
• 1.) Subjective component
• 2.) Objective component

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Reasonable expectation of privacy and Electronic
Storage Devices

• Courts analogized electronic storage devices to
• a briefcase
• File cabinet
• Closed container
• Courts differ on whether each file is a closed
  container or is the whole hard drive a closed
  container.

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• A person does not have a reasonable expectation
  of privacy in what they expose to the public.

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Expectation of Privacy and Third Parties

• May lose expectation of privacy when
• Take the computer to a repair shop.
• Mailing a disk to a friend.
• Transmitting information to a third party over
  the internet.

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Determining Third party Issues

• Two parts
• First part
• Possession of carrier during transmission to
  intended recipient
• Possession by recipient
• Usually have reasonable expectation of privacy
  during transmission of data like a package going
  through the U.S. mail system.

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• Second part
• Once item has got to recipient did the sender
  expect to maintain control over the item.
• Safekeeping
• E-mail sent to chat room
• Lose control over time
• Mr. Poulsen
• Information given to third party

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ECPA

• Transactional records
• articulable facts court order
• 18 U.S.C. 2703(d), 2711(3)
• Referred to as d order
• Basic subscriber information
• subpoena

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Innovative Technology

• Kyllo v. United States, (2001)
• Is the technology in general public use?
• Does the technology have the ability to obtain
  information about the interior of the home?

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Exceptions to the Warrant Requirement

• Consent
• United States v. Matlock, (1974)
• Common authority
• Co-users
• Can consent to search even when other party
  objects

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• Was consent voluntary
• Age
• Education
• Intelligence
• Physical/mental conditions
• Person under arrest
• Miranda rights

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• Spouses
• generally can consent
• absent affirmative showing no rights of access
• Parents
• Generally ok when under 18
• Three factors are weighed
• Suspects age
• Does suspect pay rent
• Affirmative steps taken to deny access to room or
  private area

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