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Fourth Amendment Issues of Investigating Computer Crimes

Fourth Amendment Issues of Investigating Computer Crimes. Two main sources: Fourth Amendment Privacy laws in the U.S. Code: Title III ECPA Pen register and trap and trace devices statue. Search without a Warrant. Does the person have a reasonable expectation of privacy.

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Fourth Amendment Issues of Investigating Computer Crimes

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  1. Fourth Amendment Issues of Investigating Computer Crimes

  2. Two main sources: • Fourth Amendment • Privacy laws in the U.S. Code: • Title III • ECPA • Pen register and trap and trace devices statue

  3. Search without a Warrant • Does the person have a reasonable expectation of privacy. • If not does the search fall under a specific exception?

  4. Katz Test Two Prongs: 1.) Subjective component 2.) Objective component

  5. 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.

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

  7. 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.

  8. 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.

  9. 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

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

  11. 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?”

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

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

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

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