Chapter 10
Exclusionary Rule with Search Warrants
applies to improperly obtained evidence and evidence discovered using the improperly obtained evidence. -fruit of the poisonous tree -Mapp v. Ohio -Curb police abuse of civil rights and deter police misconduct
Authentication
•Before the government or a defendant can move for the admission of a computer record as evidence, the authenticity of a record must be proven first.
The Copyright Act
•Copyrightable property includes literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial and graphic works, motion pictures and audiovisual works, sound recordings, and architectural works. •Copyright infringement as it applies to computers typically involves software piracy but has also focused on downloading music and video files.
Border Searches
•Courts have recognized the need to allow for border searches that are more intrusive that would be allowed in other locations. •United States v. Roberts
The Family Entertainment and Copyright Act
•In particular, this law makes it illegal to record, photograph, or otherwise copy a motion picture orother protected work as it is presented or screened in a theater. -This statute also criminalizes the distribution of copyrighted materials before they are released to the public for commercial profit.
The Computer Fraud and Abuse Act
•It is the primary federal statute targeting unauthorized computer use, primarily focusing on unauthorized access and theft of information from computers. Protects any computer connected to a network.
Search Incident to Arrest
•Officers are allowed to search an arrested person for any weapons or for any evidence on the arrestee's person in order to prevent its concealment or destruction. -Includes the area of the arrestee's immediate control. -Would include obtainment of a phone, but not analysis of the contents without exigent circumstances.
Electronic Communications Privacy Act (ECPA)
•The ECPA regulates how the government can obtain stored account information from network service providers such as ISPs. •The ECPA creates two categories of computer service: -Electronic communication service -Remote Computer service •Obtaining information requires different showing of cause.
USA Patriot Act/USA Freedom Act
•The USA PATRIOT Act was passed in the aftermath of the 9/11 attacks and primarily updates and enhances surveillance procedures while maintaining the established distinction between content and routing information. •The USA Freedom Act does not change any of the procedural burdens previously placed on investigators when seeking information. Did increase judicial oversight for the use of wiretaps and searches.
The Best Evidence Rule
•The best evidence rule states that to prove the content of a writing, recording, or photograph, the "original" writing, recording, or photograph is ordinarily required. •An accurate printout of computer data always satisfies the best-evidence rule.
Hearsay
•The hearsay rule exists to prevent unreliable out-of-court statements by people from influencing the outcomes of trials. •When a computer record contains the assertions of a person, the record can contain hearsay. •Business Record Exception
The Pen/Trap Statute
•The pen/trace statute regulates the collection of addressing information from wire communications. •This statute has been applied to include computer network communications, not just telephone communications. -Courts can authorize installation of pen/trap device anywhere in the U.S. for up to 60 days, but it can be extended.
Plain View
•The plain view doctrine allows an officer to lawfully seize items as long as: -The officer sees the item. -Is legally present in the area in which the item is viewed. -And immediate recognizes the item is subject to seizure.
The Economic Espionage Act
•The primary purpose of the Economic Espionage Act is to impose criminal penalties on the theft of trade secrets. -Either physically or electronically stored. -Person stealing the trade secret must know the theft will cause economic loss and benefit another person. Applies anywhere in the world as long as the perpetrator is a U.S. citizen or company.
Searches by Private Citizens
•The silver platter doctrine allows evidence collected by members of the public and presented to law enforcement to be admitted as evidence. •The scope of the search is limited to the scope employed by the private party. However, the fruits of a limited search may be used to obtain a warrant for a more complete search.
The Wiretap Statute (Title III)
•Title III regulates the collection of communication content. •Title III contains numerous exceptions including: -Interception pursuant to a Title III court order -The consent exception -The provider exception -The computer trespasser exception -The extension telephone exception -The inadvertently obtained criminal evidence exception -The accessible to the public exception
Exigent Circumstances
•exigent circumstances doctrine allows law enforcement officers to search and/or seize evidence without a warrant if they have probable cause and there is a pressing need to preserve evidence that is in danger of being destroyed or corrupted. -Digital data and encrypted data can be easy to be destroyed or corrupted. -Proof of exigent circumstances falls on law enforcement.
Challenges of Authentication
-Questioning whether the records were altered, manipulated, or damaged after they were created. -The reliability of the computer program that generated the records. -Questioning the identity of their author.
Search and Seizure Law for Digital Evidence
-Terms "search" and "reasonable" -Search and seizure is not to protect criminal but to protect a person's reasonable expectation of privacy. -A seizure of property occurs when there is some meaningful interference with an individual's possessory interests in that property. -A search is an attempt by law enforcement officers to obtain evidence.
3 Computer Crime Federal Criminal Statutes
-The Computer Fraud and Abuse Act -The Economic Espionage Act -The Copyright Act
Federal Statutes that govern the practice of electronic surveillance in criminal investigations:
-Title III of the Omnibus Crime Control and Safe Streets Act of 1968 -Pen Registers and Trap and Trace Devices chapter of Title 18
Communication Assistance for Law Enforcement Act (CALEA)
-requires telecommunication companies to modify the design of their equipment, facilities, and services to ensure the lawfully authorized electronic surveillance can actually be performed by law enforcement personnel.
Consent Search
-the most commonly used warrantless searches used by law enforcement. -Valid consent to search allows officers to search for any items within the scope of consent. "Totality of the circumstances." -Person giving consent must be legally capable of doing so
Two Defenses to Exclusionary Rule:
1) An independent source of the same information can redeem the evidence tainted by illegal search. 2) Tainted evidence may lead to a short-cut, but would otherwise has been obtained. (known as the "inevitable discovery doctrine.")
In order to obtain a search warrant, law enforcement must show:
1) a crime has been committed. 2) evidence of the crime exists 3) the evidence presently exists in the place to be searched. Judicial officer must be legally authorized and have jurisdiction to issue the warrant.
Stop and Frisk
A law enforcement officer has the right to self protection during a brief interview by conducting a frisk of a citizen for weapons. -It is possible to identify sources of digital evidence during a stop. -No clear justification to analyze such a device under a stop and frisk. -Probable cause that the device was used in a crime, a warrant should be obtained for analysis.
Admitting Evidence at a Trial
Computers that contain text can typically be divided into 2 categories: -Computer generated records (Authenticity) -Computer stored records (Hearsay)
Forms of Warrantless Searches
Stop and frisk, consent search, exigent circumstances, search incident to arrest, plain view, border search, and searches by private citizens