Author(s)
Orin Kerr
Source
St. Paul, MN: Thomson West, 2006
Summary
This book looks at law related to crimes involving computers or digital evidence and gives tips for working with cases.
Policy Relevance
The law, the courts, police, and prosecutors must adapt to new ground rules involving computer crime and evidence.
Main Points
- “Substantive law” issues include unauthorized access crimes, such as hacking and viruses, as well as traditional crimes that use computers, such as online theft, fraud, threats, copyright crimes, Internet gambling, obscenity, and child pornography.
- Courts must ask how the Fourth and Fifth Amendments to the United States Constitution, which protect privacy and other rights, apply to evidence taken from personal computers or networks.
- Encryption, the use of codes and ciphers, can conceal crime. Courts recognize that this raises issues under the Fourth and Fifth Amendments, and between 2006 and 2009 decided several key cases.
- Statutes such as the Computer Fraud and Abuse Act, the Stored Communications Act, the Pen Register Statute, and the Wiretap Act can be very difficult. The USA Patriot Act also includes provisions relating to computer crime and evidence.
- Criminal procedure rules must adapt to digital evidence. Forensics departments take evidence from seized computer hard drives, and new ground rules are needed to control this process. Is searching a hard drive like searching a cardboard box, like searching someone’s home, or more like wiretapping a telephone?
- Computer crimes often cross borders, raising jurisdictional issues like federal and state limits on investigating and prosecuting computer crimes, international computer crimes, international evidence gathering, cybercrime treaties like the EU Cybercrime convention, and the role of the Foreign Intelligence Surveillance Act.
- Other issues include sentencing cybercriminals, online entrapment, and e-mail privacy.
