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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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Presentation Transcript
slide2
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
Search without a Warrant
  • Does the person have a reasonable expectation of privacy.
  • If not does the search fall under a specific exception?
katz test
Katz Test

Two Prongs:

1.) Subjective component

2.) Objective component

reasonable expectation of privacy and electronic storage devices
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.
expectation of privacy and third parties
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.
determining third party issues
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.
slide9
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
slide10
ECPA
  • Transactional records
    • “articulable facts” court order
      • 18 U.S.C. §2703(d), 2711(3)
      • Referred to as “d” order
  • Basic subscriber information
    • subpoena
innovative technology
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?”
exceptions to the warrant requirement
Exceptions to the Warrant Requirement
  • Consent
    • United States v. Matlock, (1974)
      • Common authority
        • Co-users
          • Can consent to search even when other party objects
slide13
Was consent voluntary
    • Age
    • Education
    • Intelligence
    • Physical/mental conditions
    • Person under arrest
    • Miranda rights
slide14
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