Archive | Computer Crime Law

Next week a panel of the Third Circuit will be hearing oral argument in a case that considers whether federal law requires a warrant for the government to obtain historical cell-site records. I blogged a bit about this when the District Court’s decision was handed down, and I thought I would say a bit more now that the issue is before the Court of Appeals.

As I mentioned when I blogged about this issue in 2008, I think the answer to this case is easy: A Terry-stop “specific and articulable facts” court order is required, but a probable cause search warrant is not. As a statutory matter, the Stored Communications Act is clear here. The cell-site records count as a “record concerning an electronic communication service” under 18 U.S.C. 2703(c). Under 18 U.S.C. 2703(c)(2), such records can be compelled with a Terry stop “specific and articulable facts” court order obtained under 18 U.S.C. 2703(d).

But is this standard unconstitutional? That is, does the Fourth Amendment require a warrant backed by the exclusionary rule instead of the lesser standard and lesser remedy Congress has chosen? In her amicus brief, Professor Susan Freiwald argues that the Fourth Amendment protects cell-site info, which would require a warrant. But I think that is pretty clearly wrong under the Supreme Court’s decision in Smith v. Maryland. A cell site signal is closely analogous to numbers dialed in Smith: It’s a signal that the user sends to the phone company that is necessary for the phone company to deliver the user’s calls. It is a necessary part of placing the call, and information that is necessarily transmitted to the phone company. Professor Freiwald relies on various authorities to try to get around Smith v. Maryland, but I don’t think any of [...]

Should courts adopt a new set of Fourth Amendment rules to regulate how the police can search computers for evidence? In particular, does the fact that so much electronic evidence outside the scope of a warrant can come into “plain view” during a computer search require a different approach to whether that evidence outside the scope of the warrant should be admitted?

Some courts have thought so. In the Tenth Circuit, for example, the usual objective test for admitting plain view evidence has been replaced by a subjective test designed to narrow the scope of plain view: Evidence outside the scope of a warrant is permitted in plain view only if the agent was subjectively looking for evidence within the scope of the warrant. And in the Ninth Circuit, the en banc court recently adopted a complex set of prophylactic rules to avoid admission of plain view evidence altogether in United States v. Comprehensive Drug Testing.

In the last two days, however, two circuits have handed down published decisions creating apparent circuit splits on both of these aspects of how the plain view exception applies to computer searches. Both of these circuits, the Fourth and the Seventh, reject the idea of adopting new rules for computer search and seizure.

1. United States v. Williams. The first decision is a Fourth Circuit opinion by Judge Niemeyer in United States v. Williams, expressly disagreeing with the Tenth Circuit’s plain view decision in United States v. Carey. Carey adopted a subjective test for the plain view exception to computer searches: Under that approach, the question is whether the agent who was searching through the computer was subjectively looking for evidence within the scope of the warrant. Judge Niemeyer disagreed:

Williams, relying on the Tenth Circuit’s opinion in United States v.

A federal district court in Texas recently handed down a new case on the scope of computer warrant searches that shows how important and yet uncertain the rules of computer search and seizure are these days: United States v. Kim, — F.Supp.2d —, 2009 WL 5185389 (S.D. Texas 2009). The case was handed down December 23 by District Judge Vanessa Gilmore.

Law enforcement agents were searching a computer with a warrant for evidence of computer hacking when they come across folders containing encrypted files with the suggestive titles such as “ForbiddenFruit”, “Illegal_Loli #”, and “Loli#”. The files were encrypted with “CryptaPix,” encryption software that is generally known as a way to encrypt image files. The agents requested a warrant to open the files and search for child pornography, but the magistrate rejected the warrant application on the ground that there was insufficient probable cause. The government decided to try to decrypt the files anyway under the authority of the warrant to search for evidence of computer hacking. It took two months, but eventually the government decrypted the images and found 840 images of child pornography.

The district court suppressed the child pornography images as being beyond the scope of the warrant. However, the court did not follow the subjective approach that several courts have used in the computer search and seizure context to measure the scope of the warrant. (Under the subjective approach, courts look to whether the agents subjectively was trying to stay within the scope of the warrant when he clicked on the file.) Instead, the court concluded that it was objectively unreasonable for the government to decrypt the images based on its alleged interest in searching for evidence of computer hacking:

Looking in the encrypted folders for evidence of Computer Intrusion was unreasonable for several reasons.

I’m pleased to announce that the Second Edition of my Computer Crime Law casebook has just been published. A few quick points about it, for those who are interested in such things:

1. About 20% of the main cases are new, reflecting the dramatic caselaw development in the field since the 1st edition came out in 2006. Regular readers of the VC will be familiar with a bunch of the new cases, as I’ve blogged about several of them. The most recent case in the book is the Lori Drew case, handed down on August 28th (and edited down to about 5 pages instead of 32).

2. Despite the many new cases and notes, the book is just about the same length as before. The 1st edition was 665 pages plus the statutory materials in the appendix; the 2nd edition is 684 pages plus the statutory materials in the appendix. I didn’t want the book to become bloated, as can happen to successive editions, so I tried both to add in what was needed and to take out what was no longer as useful or relevant as before.

3. I’m finishing up a Teacher’s Manual for the book, and I will also soon have a free online Supplement available for the Spring 2010 semester to include the several important caselaw developments just in the last 2 or 3 months. [...]