(a) Consider the “framework” to the fourth amendment, and the summary of searches and seizures (reading/skimming/browsing the pages indicated in A and B of the reading assign-ment and any related notes and questions that catch your attention).
When applying the Fourth Amendment to cyberspace, do you believe that it makes a difference whether the reason for the fourth amendment is primarily to:
(i) protect against physical trespass (a property interest—officers of the state cannot enter your home or other physical space), or
(ii) to protect a privacy interest (a personal dignity interest—even if no one enters your space, they still may not “observe” or “listen” to you)?
Do you believe that the Fourth Amendment should be applied to cyberspace differently than it is applied in ordinary space (if there is no physical trespass, and the target doesn’t even know of the surveillance and so is not even aware of any privacy or digni-ty loss, should there be any fourth amendment application at all — what is the reason for the Fourth Amendment)?
(b) For searches without a warrant: Consider the five orthodox “exceptions” to the war-rant requirement and the orthodox issues raised by each of these exceptions in “ordinary space” (reading/skimming/browsing the pages indicated in section C of the reading assignment for permissible searches without a warrant). This is not a trick question, the exceptions are listed in the reading assignment, and are major sub-headings in the casebook; you need not have taken any course in Constitutional law in order to recognize the categories, spot the is-sues, and form some reasoned opinions about their applicability to cyberspace.
Pick any one of the exceptions that permit a search without a warrant and discuss whether (and if so, how) cyberspace changes or complicates the issues—how does cy-berspace create different problems in respect of the exception you elected to discuss?
(c) For searches with a warrant: Consider the six orthodox “limitations” to searches that are conducted with a warrant (section D of the reading assignment). This is not a trick ques-tion, the exceptions are listed in the reading assignment, and are major sub-headings in the casebook; you need not have taken any course in Constitutional law in order to recognize the categories, spot the issues, and form some reasoned opinions about their applicability to cyber-space.
Pick any one of the limitations to a search with a warrant and discuss whether (and if so, how) cyberspace changes or complicates the issues—how does cyberspace create different problems in respect of the limitation you elected to discuss?
Fourth Amendment in Cyber-security
Fourth Amendment in Cyber-security
- Framework of the Fourth Amendment
When applying the Fourth Amendment to cyberspace, all American citizens have to be protected against physical trespass and privacy interest. The policy not only protects an individual from physical arrest but also the seizure of their gadgets such as phones or computers unless there is probable cause for the intended action. According to the law, every individual has the right to be secure in their houses, papers, persona, and effects, against arbitrary searches as well as seizures (Kerr, 2006). Under no circumstance should this right be violated and no warrants shall be issued unless, upon probable cause as per the oath of affirmation, and particularly defining the areas to be searched, persons or their things seized. Before making an arrest, the law enforcement is required to acquire a search warrant from the judiciary ordering the unit to execute search or seizes.
Concerning cyberspace, the application of the Fourth Amendment should be applied differently than it is in the ordinary space. The reason being, in the ordinary space, a law enforcer is allowed, with the issue of a search warrant, to seize any digital device purported to contain data that is of interest if it is in the same proximity (Kerr, 2006). The issue, in this case, is that the law would also require the police to seek a search warrant for encrypted data because decrypting personal data without authorization reaffirms the dignity-loss of the suspect. The process of seeking an additional order of authorization increases the cost of establishing a tangible case. In case a Magistrate refuses to issue an extra warrant, the process of obtaining incriminating evidence would be limited (Swire 2018). This means that the suspect could be released despite being guilty. To save time, there should a new law that allows police to infiltrate a person’s cyberspace once probable cause is established.
- Exemptions that Permit Search without Warrant
Before executing the Fourth Amendment, all law enforcers are required by law to acquire a search warrant. However, the U.S. government offers certain exceptions to search or seize without a warrant (Kerr, 2006). One of these exceptions is the search incident to arrest. In line with this exception, the law enforcement is permitted to undertake a warrantless search of an arrested suspect as well as his possessions within the arrestee’s immediate environment only if it probable cause is in the interest of the officers’ safety, preservation of evidence, and prevention of escape.
Despite its clarity, the rule becomes complicated when cyberspace is involved. In the modern world, digital equipment such as phones and tablets have come imperative tools in facilitating communication and coordination among law enforcers and can provide valuable incriminating evidence regarding dangerous criminals (Kerr 2006). The holding, in this case, is that data on one’s cellphone is immune from search. To seize and search this technology, law enforcers have to obtain a search warrant beforehand.
Mobile phones are not only used for technological conveniences but also to hold a person’s private life. By virtue that this technology allows people to carry vital information in their hands does not make the data less worthy of protection. The conflicting ideology in this scenario is that despite the importance of the purported data, the police have to get a warrant to obtain the details of the information (Swire 2018). This issue is rather ironic since a suspect could have, hypothetically, texted his/her accomplices on the place and time to detonate a bomb or an abductor who may have vital information about the location of a missing person, but the policy forbids law enforcers to search the gadget and get the information. The waiting period to get a warrant may prove to be futile to a victim.
- Limitations to a Search without Warrant
One of the major limitations to searchers that are undertaken without warranty is probable cause. To get a search warrant law enforcers ought to first show probable cause to guarantee that evidence will be obtained in the place being searched. In line with the Supreme Court, probable cause is a fair likelihood that evidence of crime or contraband will be found in the identified place (Kerr, 2006). However, this warranty may not be applied to cyberspace. For instance, if an individual is perceived to have committed a crime using his cellphone, tablet, or laptop but during apprehension, the individual does not have the gadget then the person could be set free for lack of evidence.
According to the Supreme Court, the application of the Fourth Amendment regarding electronic devices is that law enforcers are not allowed to assume that a suspect has the sorted device. Under this law, police officers are obliged to use commonsense rather than “hypertechnical” reading to the warrant application (Kerr, 2006). Therefore, there is no commonsense reason to imply that a person, by default, owns a cellphone, computer, or tablet. Nevertheless, studies indicate that the number of ownership to these gadgets has increased significantly. Considering that a suspect has never been seen by a law enforcer using these gadgets to commit a crime or that not gadget of the sort was recovered in his/her possession during arrest then the suspect will be innocent (Swire 2018). The issue of cyberspace in the application of this law is complicated because the suspect could have committed a crime using a cellphone, computer, or tablet but law enforcers will have to seek a warrant that will allow them to obtain the information from third parties, which in most case is highly unlikely.
Kerr, O. S. (2006). Computer crime law (p. 457). Thomson/West.