Computer Search and Seizure

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Computer Search and Seizure National Center For Justice And The Rule Of Law University of Mississippi School of Law Thomas K. Clancy Director www.ncjrl.org Funding!

1 Computer Search and Seizure National Center For Justice And The Rule Of Law University of Mississippi School of Law Thomas K. Clancy Director Funding! This project is supported by grants by the Bureau of Justice Assistance, US DOJ, and by Mississippi State University. Points of view or opinions in this training session and the binders are those of the authors and do not represent the official position of the United States Department of Justice. National Center for Justice and the Rule of Law Conferences Training Projects Publications 1

Cyber Crime Initiative Link w/ national organizations, state-wide agencies to develop model projects to

Fourth Amendment Initiative Promotes awareness of search and seizure principles National Judicial College

published in the Mississippi Law Journal.

ncjrl.org Annual Fourth Amendment Symposiums 2002: Technology all at WWW.NCJRL.

2 Cyber Crime Initiative Link w/ national organizations, state-wide agencies to develop model projects to facilitate prosecution of persons engaged in computer-related crime. Fourth Amendment Initiative Promotes awareness of search and seizure principles National Judicial College conferences for state trial and appellate judges Annual Symposium address important search and seizure issues, published in the Mississippi Law Journal. James Otis Lecture annual published lecture by noted scholar Computer Searches and Seizures publications at Annual Fourth Amendment Symposiums 2002: Technology all at : Race & Ethnicity 2004: "Tools" to Interpret 2005: Computer Searches and Seizures 2006: Role of Objective vs. Subjective Intent 2007: Independent State Grounds 2008: Border Searches -- digital and physical 2009: "Great dissents" 2010: Fourth Amendment Rights of Children 2

3 Cyber Crime and Digital Evidence Publications / Projects lots on line at including: Free delivered Cyber Crime Newsletter Internet Victimization Symposium Materials on computer-related crime 4 day search and seizure course Comprehensive Search and Seizure for Trial Judges Reno -- May 23-26, 2011 OXFORD -- Sept 12-15, 2011 ICAC courses new! Trial Issues in ICAC cases AUG 1-2, 2011 (Reno) 3

digital search and seizure courses Computer Searches and Seizures for Trial

Pretrial Motions Practice May 19-20, 2011 (Reno) appellate judge conferences

Oxford -- March 9-11, 2011 Symposium: The Future of Fourth Amendment Analysis

Fourth Amendment March 9: Foundational Issues March 10: The Future of Fourth

4 digital search and seizure courses Computer Searches and Seizures for Trial Judges OXFORD -- Aug 25-26, 2011 Technology-Assisted Crimes Against Children: Pretrial Motions Practice May 19-20, 2011 (Reno) appellate judge conferences Foundational Fourth Amendment Principles and Annual Fourth Amendment Symposium Oxford -- March 9-11, 2011 Symposium: The Future of Fourth Amendment Analysis Oxford March 10-11, 2011 Appellate Judge Conference and Annual Symposium on the Fourth Amendment March 9: Foundational Issues March 10: The Future of Fourth Amendment Analysis March 11: Search and Seizure of Digital Evidence $1000 toward expenses 4

5 NCJRL.org The Fourth Amendment Its History and Interpretation Thomas K. Clancy $70 on Amazon ISBN-10: ISBN-13: inside the box the crime scene 5

6 3 ways digital evidence involved in crimes computer is either Container Tool Target new crimes & new techniques 1. contains evidence * drug dealers' records * who lives there, owns computer 2. tool to commit crime * e Bay fraud (on-line auction house fraud) * illegal trading of music, movies * hacker * illegal Internet gambling business * identify theft just a murder! studied currents researched bodies of water how to make cement anchors tide charts had 5 home computers 6

7 3. computer as Target * unauthorized access, damage, theft * spam, viruses, worms * denial of service attacks Technology-specific crimes that did not exist before there were networks 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. Federal vs. State guarantees States free to interpret OWN constitution to provide more protections to individuals increasing trend: PA, CT, OR,.. contra CA, FL, prohibited from doing so Symposium, 77 Miss. L.J. 1 (2007) lots of info on developments... 7

published search and seizure appellate ct.

cases yellow - Child Porn STATE FEDERAL 2009 13 (10)

(9) 14 (8) 2005 13 (8) 20 (15) 2004 14 (11) 6 (4) 2003

total 117 (78) 136 (95) lots of developing issues

the box, outside the box" topics include: Outside the

8 published search and seizure appellate ct. decisions 253 total 173 Child Porn 68 % green - total cases yellow - Child Porn STATE FEDERAL (10) 19 (16) (10) 17 (13) (5) 14 (9) (9) 14 (8) (8) 20 (15) (11) 6 (4) (6) 6 (6) (7) 7 (6) Pre (12) 33 (18) total 117 (78) 136 (95) lots of developing issues applying established rules to digital evidence containers?? example: searches incident to arrest "inside the box, outside the box" topics include: Outside the box internet investigations statutory protections: stored communications act The Box wiretap act pen register / trap and trace 8

9 structure of 4th Amendment analysis IN EVERY CASE, Does the 4th Apply? see memo in tab#1 for outline A. Gov't activity: "Search" or "Seizure" B. Protected interest: liberty, possession, privacy 2. Is it Satisfied? "Reasonable" Warrant Clause requirements [3. Remedies?] applicability detailed objects protected "security" of each object implicated by "search": by "seizure": people REP analysis liberty houses REP " possession papers REP " possession effects REP " possession Expectation of Privacy Analysis In General Search: must have legitimate expectation of privacy invaded by gov't two prongs 1 individual has subjective expectation of privacy 2 society recognizes that expectation as reasonable If either prong missing, no protected interest 9

10 Day 1 Computer Searches and Seizures introduction to digital evidence & computer forensics Reasonable expectations of privacy inside the box Private Search Doctrine who is a government agent replicating private searches context of discovery as destroying REP Day 1 (continued) breakout group: introducing warrant issues in digital cases Is the Amendment satisfied? two main approaches to digital evidence plain view doctrine search protocols conceptual difficulties of applying traditional doctrines to digital evidence Day 2 outside the box: Internet, Networks, New Technologies legal framework other emerging issues: tracking technologies search incident to arrest consent Child Pornography searches and seizures putting it all together: steps in digital investigation 10

11 "All times are Estimates" who are you? registration agendas publications course descriptions scholarship info all materials available at: WWW. NCJRL.org Thomas K. Clancy

NATIONAL CENTER FOR JUSTICE AND THE RULE OF LAW. University of Mississippi School of Law. National Center for Justice and the Rule of Law

NATIONAL CENTER FOR JUSTICE AND THE RULE OF LAW University of Mississippi School of Law Thomas K. Clancy Director www.ncjrl.org National Center for Justice and the Rule of Law Conferences Training Projects