NAME - ARYAN RAJ

ROLL NO. - 18700120047

SUBJECT - Cyber Law and Ethics (OEC-CS801B)

TOPIC - Court orders etc., methods to search and

seizure electronic evidence

BRANCH - CSE 4TH YEAR

SEMESTER - 8TH
 Court orders etc., methods to search and seizure electronic
evidence

Abstract
Computers and the Internet have entered the mainstream of American life. Millions of Americans
spend hours every day using computers and mobile devices to send and receive email, surf the
Internet, maintain databases, and participate in countless other activities.

Unfortunately, those who commit crimes have not missed the information revolution. Criminals use
mobile phones, laptop computers, and network servers in the course of committing their crimes. In
some cases, computers provide the means of committing crime. For example, the Internet can be used
to deliver a death threat via email; to launch hacker attacks against a vulnerable computer network, to
disseminate computer viruses, or to transmit images of child pornography. In other cases, computers
merely serve as convenient storage devices for evidence of crime. For example, a drug dealer might
keep a list of who owes him money in a fle stored in his desktop computer at home, or a money
laundering operation might retain false fnancial records in a fle on a network server. Indeed, virtually
every class of crime can involve some form of digital evidence.

Searching and Seizing Computers Without a Warrant

Introduction
The Fourth Amendment limits the ability of government agents to search for and seize evidence
without a warrant. Tis chapter explains the constitutional limits of warrantless searches and seizures in
cases involving computers.
The Fourth Amendment states:
The right of the people to be secure in their persons, houses, papers, and efects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or afrmation, and particularly describing the place to be searched, and the persons
or things to be seized.
According to the Supreme Court, a “‘seizure’ of property occurs when there is some meaningful
interference with an individual’s possessory interests in that property,” United States v. Jacobsen, 466
U.S. 109, 113 (1984), and the Court has also characterized the interception of intangible
communications as a seizure.
B. The Fourth Amendment’s “Reasonable Expectation of Privacy” in Cases Involving Computers
1. General Principles
A search is constitutional if it does not violate a person’s “reasonable” or “legitimate” expectation of
privacy. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). Tis inquiry embraces
two discrete questions: frst, whether the individual’s conduct refects “an actual (subjective)
expectation of privacy,” and second, whether the individual’s subjective expectation of privacy is “one
that society is prepared to recognize as ‘reasonable.’” Id. at 361. In most cases, the difculty of
contesting a defendant’s subjective expectation of privacy focuses the analysis on the objective aspect
of the Katz test, i.e., whether the individual’s expectation of privacy was reasonable.
2. Reasonable Expectation of Privacy in Computers as Storage Devices
To determine whether an individual has a reasonable expectation of privacy in information stored in
a computer,it helps to treat the computer like a closed container such as a briefcase or file cabinet.
The Fourth Amendment generally prohibits law enforcement from accessing and viewing information
stored in a computer if it would be prohibited from opening a closed container and examining its
contents in the same situation.
Te most basic Fourth Amendment question in computer cases asks whether an individual enjoys a
reasonable expectation of privacy in electronic information stored within computers (or other
electronic storage devices) under the individual’s control. For example, do individuals have a
reasonable expectation of privacy in the contents of their laptop computers, USB drives, or cell
phones? If the answer is “yes,” then the government ordinarily must obtain a warrant, or fall within
an exception to the warrant requirement, before it accesses the information stored inside.
3. Reasonable Expectation of Privacy and Third-Party Possession
Individuals who retain a reasonable expectation of privacy in stored electronic information under
their control may lose Fourth Amendment protections when they relinquish that control to third
parties. For example, an individual may ofer a container of electronic information to a third party by
bringing a malfunctioning computer to a repair shop or by shipping a foppy diskette in the mail to a
friend. Alternatively, a user may transmit information to third parties electronically, such as by
sending data across the Internet, or a user may leave information on a shared computer network.
When law enforcement agents learn of information possessed by third parties that may provide
evidence of a crime, they may wish to inspect it. Whether the Fourth Amendment requires them to
obtain a warrant before examining the information depends in part upon whether the third-party
possession has eliminated the individual’s reasonable expectation of privacy.
4. Private Searches
The Fourth Amendment “is wholly inapplicable to a search or seizure, even an unreasonable one,
effected by a private individual not acting as an agent of the Government or with the participation or
knowledge of any governmental oficial.” United States v. Jacobsen, 466 U.S. 109, 113 (1984) (internal
quotation marks omitted). As a result, no violation of the Fourth Amendment occurs when a private
individual acting on his own accord conducts a search and makes the results available to law
enforcement. See id. According to Jacobsen, agents who learn of evidence via a private search can
reenact the original private search without violating any reasonable expectation of privacy.
5. Use of Specialized Technology to Obtain Information
The government’s use of innovative technology to obtain information about a target can implicate
the Fourth Amendment. See Kyllo v. United States, 533 U.S. 27 (2001). In Kyllo, the Supreme Court
held that the warrantless use of a thermal imager to reveal the relative amount of heat released from
the various rooms of a suspect’s home constituted a search that violated the Fourth Amendment.
Searching and Seizing Computers
With a Warrant
Tis Chapter discusses the legal and practical rules governing the use of warrants to search for and
seize evidence stored in computers and electronic media. Section B discusses the strategic
considerations any investigator or attorney should bear in mind before applying to the court for a
warrant. Section C discusses the issues that arise in drafting a computer search warrant and afdavit.
Section D addresses forensic analysis of the media. Section E discusses challenges to the search
process. Finally, Section F discusses the limited circumstances in which statutes or other rules prohibit
the government from using search warrants to obtain computers or electronic media. A sample
computer search warrant appears in Appendix F.

Devising a Search Strategy

Before drafting a warrant application and afdavit, careful consideration should be given to what sort
of evidence a search might reveal. A search of a computer’s hard drive can reveal many diferent types
of evidence. A search strategy should be chosen after considering the many possible roles of the
computer in the offense:

1) A computer can be contraband—either because the computer is a repository of data that is

contraband (such as child pornography) or because the computer is stolen property;

2) a computer can be a repository of data that is evidence of a crime—such as a spreadsheet showing

illegal drug transactions, a letter used in an ongoing fraud, or log fles showing IP addresses assigned to
the computer and websites accessed; or

3) a computer can be an instrumentality of a crime—for example, the computer was used as a tool to
hack into websites, distribute copyrighted videos, or produce illegal pornography.

Additionally, in devising a search strategy, investigators should bear in mind both the elements that
must be proven should the prosecution go to trial and also the sources of electronic evidence that are
relevant to those elements.

Drafting the Afdavit, Application, and Warrant

An afdavit and application for a warrant to search a computer are in most respects the same as any
other search warrant afdavit and application: the afant swears to facts that establish that there is
probable cause to believe that evidence of crime (such as records), contraband, fruits of crime, or
instrumentalities of crime is present in a private space (such as a computer’s hard drive, or other
media, which in turn may be in another private space, such as a home or ofce), and the warrant
describes with particularity the things (records and other data, or perhaps the computer itself) to be
searched and seized.
Include Facts Establishing Probable Cause

Te probable cause necessary to search a computer or electronic media is probable cause to believe that
the media contains or is contraband, evidence of a crime, fruits of crime, or an instrumentality of a
crime. See Fed. R. Crim. P. 41(c). Evidence of crime can include evidence of ownership and control. See,
e.g., United States v. Horn, 187 F.3d 781, 787-88 (8th Cir. 1999) (approving in child pornography case a
warrant provision authorizing seizure of “[r]ecords, documents, receipts, keys, or other objects showing
access to, and control of,the residence”).

Establishing the Necessity for Imaging and Of-Site Examination

With limited exceptions, a search of a hard drive or other media requires too much time to conduct on-
site during the execution of a warrant. The search warrant affidavit should explain why it is necessary to
image an entire hard drive (or physically seize it) and later examine it for responsive records.

Other Issues
Te authentication requirement and the hearsay rule usually constitute the most signifcant hurdles that
prosecutors will encounter when seeking the admission of computer records. However, some agents
and prosecutors have occasionally considered two additional issues: the application of the best
evidence rule to computer records and whether computer printouts are “summaries” that must comply
with Fed. R. Evid. 1006.
1. Te Best Evidence Rule
Te best evidence rule states that to prove the content of a writing, recording, or photograph, the
“original” writing, recording, or photograph is ordinarily required. See Fed. R. Evid. 1002. For example,
in United States v. Bennett, 363 F.3d 947, 953 (9th Cir. 2004), in an efort to prove that the defendant
had imported drugs from international waters, an agent testifed about information he viewed on the
screen of the global positioning system (GPS) on the defendant’s boat. Te Ninth Circuit found that the
agent’s testimony violated the best evidence rule.
2. Computer Printouts as “Summaries”
Federal Rule of Evidence 1006 permits parties to ofer summaries of voluminous evidence in the form of
“a chart, summary, or calculation” subject to certain restrictions.
CONCLUSION
Based on my training and experience, and the facts as set forth in this afdavit, there is probable cause
to believe that on the computer systems in the control of [EMAIL PROVIDER] there exists evidence of a
crime [and contraband or fruits of a crime]. Accordingly, a search warrant is requested.
15.
Tis Court has jurisdiction to issue the requested warrant because it is “a court with jurisdiction over the
ofense under investigation.” 18 U.S.C. § 2703(a).
16.
Pursuant to 18 U.S.C. § 2703(g), the presence of a law enforcement ofcer is not required for the service
or execution of this warrant.
 REFERENCE

Adams v. City of Battle Creek, 250 F.3d 980 (6th Cir. 2001).............................................180
Adams v. Sumner, 39 F.3d 933 (9th Cir. 1994) ...............................................................177 Alderman
v. United States, 394 U.S. 165 (1969) ..............................................................184 Amati v. City of
Woodstock, 176 F.3d 952 (7th Cir. 1999)................................................181 American Postal Workers
Union, Columbus Area Local AFL-CIO v.
United States Postal Service, 871 F.2d 556 (6th Cir. 1989)................................... 26, 48
Ameritech Corp. v. McCann, 403 F.3d 908 (7th Cir. 2005).............................................143 Amezquita
v. Hernandez-Colon, 518 F.2d 8 (1st Cir. 1975).............................................187 Andersen Consulting
LLP v. UOP, 991 F. Supp. 1041 (N.D. Ill. 1998)....................120, 135 Anderson v. Creighton, 483 U.S.
635 (1987) ....................................................................190 Andresen v. Maryland, 427 U.S. 463
(1976)...................................................70, 81, 87, 113 Anonymous v. Anonymous, 558 F.2d 677 (2d
Cir. 1977)..................................................180 Arizona v. Gant, 129 S. Ct. 1710
(2009)...........................................................................