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Electronic Evidence and the United States Constitution

Electronic Evidence and the United States Constitution. A discussion of how the Fourth Amendment applies to online conduct. Keith Leitz. Samuel S. Park. March 30, 2010. Outline. Introduction Fourth Amendment / Rule 41 Katz and Reasonable Expectation of Privacy (REP)

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Electronic Evidence and the United States Constitution

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  1. Electronic Evidence and the United States Constitution A discussion of how the Fourth Amendment applies to online conduct. Keith Leitz Samuel S. Park March 30, 2010

  2. Outline • Introduction • Fourth Amendment / Rule 41 • Katz and Reasonable Expectation of Privacy (REP) • Online Computer Searches • Deleted Files • File-Sharing Software • Computer Attached to a Network • Information Reported by a Third Party • Cellular Phones • E-mails and Text Messages • CDT / the future of Fourth Amendment and Electronic Evidence

  3. Introduction • Principle and overall view • Not covering: Specific federal statutes (e.g. Stored Communications Act, the PATRIOT Act, etc.) • Narrow focus on electronic evidence and the Fourth as it applies to online conduct • Technology and Jurisprudence • Searches governed by the Fourth Amendment • Unique online issues and Cell phones

  4. Fourth Amendment 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. Two Requirements: 1. Reasonable Clause 2. Warrant Clause

  5. Rule 41 • F. R. Crim. Proc. 41 • “Procedural Codification of Fourth Amendment” • 41(a) : Scope and Definitions • 41(c): Persons or Property Subject to Search or Seizure • 41(d): Obtaining a Warrant • 41(e): Issuing the Warrant • 41(f): Executing and Returning the Warrant • Pending Amendments for Warrant Seeking Electronically Stored Information: 41(e)(2)(B)

  6. The Katz Rule • United States v. Katz, 389 U.S. 347, 351 (1967) • “For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." • In a concurrence, Justice Harlan created a two-prong Fourth Amendment test: • Person must exhibit an actual expectation of privacy (subjective) • The expectation must be one that society is prepared to recognize as reasonable (objective)

  7. Online Computer Searches:Deleted Files • “Deleted” ≠ Deleted • U.S. v. Upham,168 F.3d 532 (1st Cir. 1999) • P: Deleted files are abandoned in the same way that putting trash on the curb is an abandonment . . . Thus subject to plain view • D: Deleting files should mean that they do not exist i.e. are no longer possessed • H: Deleting files is not an abandonment and they are still possessed.

  8. Online Computer Searches:File-Sharing Software • “One who gives his house keys to all of his friends who request them should not be surprised should some of them open the door without knocking.” United States v. Stults, 575 F.3d 834, 843 (8th Cir. 2009). • P: A person’s decision to install and use file-sharing software, thereby opening his computer to anyone else with the same freely available program eliminates their REP United States v. Ganoe, 538 F.3d 1117 (9th Cir. 2008) • D: Existence of file sharing software on a computer does not automatically eliminate REP. State v. Bailey, 2010 WL 724808, at *4 (Me. 2010 ME 15) • H: Even if a person has a subjective belief that files on their computer are private, if law enforcement can access the files via file-sharing software there is no REP. Stults, Ganoe, etc.

  9. Online Computer Searches:Computer Attached to a Network • P: Connecting a computer to a network (i.e. campus internet access) exposes that computer to the public and eliminates REP. • D: If a person does not agree to a monitoring clause, his REP is not waived by merely attaching his computer to a network. • H: A person’s reasonable expectation of privacy is not eliminated merely by attaching one’s computer to a network. However, these expectations are greatly reduced. United States v. Heckenkamp, 482 F. 3d 1142 (9th Cir. 2007) • “special needs exception” • Note: • REP is eliminated for a government computer attached to a private network U.S. v. Larson, 66 M.J. 212 (C.A.A.F. 2008) • REP is eliminated for a private computer connected to a government network U.S. v. King, 509 F.3d 1338 (11th Cir. 2007)

  10. Online Computer Searches:Information Reported by a Third Party • Fourth Amendment only applies to government conduct, not searches by private individuals • Two cases came out of the hacker “Unknownuser” • U.S. v. Steiger, 318 F.3d 1039 (11th Cir.2003) • U.S. v. Jarrett, 338 F.3d 339 (4th Cir. 2003) • D: If the government encourages, acquiesces to, or even knows of an illegal search by a private party that creates an agency and resulting evidence should be excluded • P: So long as the government does not actively participate in a search by a private party, there is no agency. • H: There must be some evidence of Government participation in or affirmative encouragement of the private search before a court will hold it unconstitutional. Passive acceptance by the Government is not enough.

  11. Cellular Phones • To date, most cell phone search issues are centered around SITA, Inventory Searches, And Exigency • P: Cellular phones can contain evidence of the crime for which D is being arrested – and that evidence could be destroyed by incoming data. • D: A cell phone is a closed container, which could not “harm” an arresting officer, does not need to be inventoried, and the memory on current cell phones is such that data will still be present after a warrant is obtained. • H: Depends on the court… • U.S. v. Finley 477 F.3d 250, (5th Cir. 2007) • U.S. v. Wall 2008 WL 5381412 (S.D. FLa. 2008)

  12. E-mails and Text Messages • Still in transitional stage • E-mails: • Warshakv. United States of America, 490 F.3d 455 (6th Cir. 2007.) • Rehbergv. Paulk, 529 F.3d 892 (11th Cir. 2008) • Text Message: • Quonv. Arch Wireless Operating Co., Inc., 529 F.3d 892 (9th Cir. 2008)

  13. Future Prediction • Most important issue regarding “online” searches, has less to do with whether a search is conducted “online” and more to do with the breadth of the search. • United States v. Comprehensive Drug Testing, Inc. the United States Court of Appeals for the Ninth Circuit issued five rules of “guidance” for the collection of electronic evidence by government agents. 579 F.3d 989, 1006 (9th Cir. 2009) • The two relevant rules that have the most impact: • Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases. • The government's search protocol must be designed to uncover only the information for which it has probable cause.

  14. Conclusion • Fourth Amendment / Katz • Online Computer Searches • Deleted Files • File-Sharing Software • Computer Attached to a Network • Information Reported by a Third Party • Cellular Telephones • CDT and the prediction

  15. Question? “[T]he law does not give a constitutional damn about non-search and non-seizure police activity.”

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