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| | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. |
| | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. |
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< | Hard Drives, File Cabinets? |
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> | Computer Hardware, A Filing Cabinet? |
| | -- By BerrakComert - 20 Dec 2011 |
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< | As the Internet, computers and new technologies root further into our daily lives, we face questions of how to address the issues relating to these new elements of our lives. The easiest way to categorize and solve these new problems is to resort to analogies and use our knowledge and experience that have already been there for centuries. In light of this seemingly simple approach, we can think of everything that is happening in this new segment of our lives the same as what we know except in a different environment. Accordingly, cybercrimes would simply be crimes committed in a different environment. Our online privacy would be our privacy in a different environment, a note we write online would be like a public speech we gave. However; this oversimplification cannot be inclusive enough to cover what the fast developing digital world keeps offering. Second, the most exciting thing about the internet era was the freedom it promised and did bring. This oversimplifying analogy of adapting our old concepts to the digital world does not only violate the freedom of the digital era but makes us much less free, even less free than what we began with. And finally, especially in criminal law, analogies can result to very restrictive means that threaten our freedoms and privacy even more aggressively than before.
One of the analogies of the digital world utilized by courts and legal scholars suggest that computer hard drives are just like filing cabinets that we put our files. But our computers contain the broadest data about us in the richest variety. Further, it also contains a lot of information about us, our past or present, which we do not even intentionally keep there. |
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< | When discussing computers as source of evidence, especially in the context of cybercrimes, the most commonly discussed examples are child pornography cases. Due to dreadfulness of the crime alleged, the exorbitance of violating the privacy of the suspect computer owner appears more tolerable. The necessity of such invasive measure becomes more questionable in cases of tax fraud, In the Matter of the Search of: 3817 W. West End, or illegal steroid use by professional athletes, United States v. Comprehensive Drug Testing. |
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< | Examples from other places in the world can be much more dramatic and clearer to display the level of the privacy rape. A Turkish journalist, Ahmet Şık, was detained on 3 March 2011 along with other journalists. He has been under arrest since 6 March 2011, the main evidence against him being the copy of the unpublished book he wrote, which was found during a warrant in his home and allegedly in the computers of a news website, which was also alleged to have connections with an alleged ultra-nationalist organization in Turkey with possible ties to members of the country's military and security forces, a military coup plot, or merely a conspiracy for some. |
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> | The Analogy and the Overreach |
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< | As the severeness of the offence changes or even the definition of the offense blurs, it is more difficult to justify the necessity of such invasive measure. Even if governments want to treat our computers as filing cabinets, do we use them as filing cabinets, or do we treat them as a private area where we imagine and expect to be more free and untouchable by others. |
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> | As the Internet, computers and new technologies root further into our daily lives, we face questions of how to address the issues relating to these new elements of our lives. The easiest way to categorize and solve these new problems is to resort to analogies and use our knowledge and experience that have already been there for centuries. In light of this seemingly simple approach, we can think of everything that is happening in this new segment of our lives the same as what we know except in a different environment. However, this oversimplification cannot be accurate to cover what the fast developing digital world keeps offering. Second, the most exciting thing about the Internet era was the freedom it promised. This oversimplifying analogy of adapting our old concepts to the digital world does not only violate the freedom of the digital era but makes us even less free than what we began with. |
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< | In order to protect the 4th Amendment rights of the citizens, the Courts have adopted various restrictive measures limiting the computer hard drive searches. Such restrictions include (i) on-site seizure of computers, (ii) timing of the subsequent off-site search, (iii) method of the off-site search, and (iv) return of the seized computers when searches are complete. While the constitutionality and utility of such restrictions are still argued, it is important to note that these restrictions are nowhere near answering the privacy concern of individuals. |
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> | One of the analogies of the digital world utilized by courts and legal scholars suggest that computer hard drives are like filing cabinets that we put our files. But our computers contain the broadest data about us in the richest variety. Further, it also contains a lot of information about us, our past or present, which we do not even intentionally keep there. |
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< | Border searches |
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> | When discussing computers as source of evidence, especially in the context of cybercrimes, the most commonly discussed examples are child pornography cases. Due to dreadfulness of the crime alleged, the exorbitance of violating the privacy of the suspect computer owner appears more tolerable. The necessity of such invasive measure becomes more questionable in cases of tax fraud, In the Matter of the Search of: 3817 W. West End, or illegal steroid use by professional athletes, United States v. Comprehensive Drug Testing. |
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< | Section I |
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> | Examples from other places in the world can be much more dramatic and clearer to display the level of the privacy rape. A Turkish journalist, Ahmet Şık, has been detained since March 2011 along with other journalists, the main evidence against him being the copy of the unpublished book he wrote, which was found during a warrant in his home and allegedly in the computers of a news website, which was alleged to have connections with an alleged ultra-nationalist organization in Turkey with possible ties to members of the country's military and security forces, a military coup plot, or merely a conspiracy for some. As it can be seen, there could be a lot vague allegations, blurred line of crimes, and everything you produced in your life lies at the hands of some police officers. |
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< | Subsection A |
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> | As the severeness of the offence changes or even the definition of the offense blurs, it is more difficult to justify the necessity of such invasive measure. Even if governments want to treat our computers as filing cabinets, do we use them as filing cabinets, or do we treat them as a private area where we imagine and expect to be more free and untouchable by others? |
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< | Subsub 1 |
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> | Some limitations on computer searches and seizures applied by U.S. Courts |
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> | In order to protect the 4th Amendment rights of the citizens, the U.S. Courts have adopted various restrictive measures limiting the computer hard drive searches. |
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< | Subsub 1 |
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> | Firstly, it is very important to separate the search warrant from the seizure warrant. As a seizure of hardware for further search gives immense amount of information, such broad authority for an excessive privacy violation must be explicitly granted. |
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> | The second set of limitations on the searches are time limitations. Some of the Courts have chosen to impose some requirements relating to the timeframe of electronic searches as in United States v. Brunette. However, the judges can extend the timeframe upon request from the government and accordingly timeframe could be still long even with these limitations. Further, the difference of what can be found by the police in 60 days or more, does not help much with the privacy concerns. |
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< | Subsub 2 |
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> | Another limitation on the searches concerns access to the information that was not within the scope of the warrant. Judges may require ex ante search protocols for a search that the government wants to conduct and further limit the use of further evidence that was found in plain view. As expressed in United States v. Comprehensive Drug Testing, these limitations are crucial as they try to block overreach attempts by the government and decrease the “government’s incentive to execute computer warrants on a broad way that would bring evidence to plain view”. |
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> | Further limitations concern the return of the seized hardware and destruction of the seized material after the consummation of the search period. |
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> | Whether these limitations are applied or not, a hardware search and seizure are still too invasive for most alleged crimes. Warranting such extraordinarily invasive privacy violation must further be narrowed to a category of few crimes with strong evidence supporting and requiring necessity of such measure. |
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< | Section II |
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< | Subsection A |
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> | Conclusion |
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< | Subsection B |
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> | The amount and sort of information that our computers contain are extraordinarily superior compared to our physical filing cabinets. We document our lives like we never did before through our online devices. Furthermore, our computers do it for us when we do not intend to document anything by noting every website we visited, every article, picture we looked at. Also, due to the devices we use such as unencrypted e-mails, the privacy of many other individuals are at stake with the privacy of our computers. As easy a solution can computer searches for government be, it is the most invasive attack to our privacy. The limitations set by judges or by the law can only be of any meaning where we can have no doubts over the intentions of the government or its security officials. In the absence of that, the best solution yet seems to be training ourselves on being smarter about how we use our computers. |
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