CJUS 540 Test 2 Study Guide

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Feb 20, 2024

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CJUS 540 Test 2 Liberty University Clancy, Tomas K. (2019). Cyber Crime and Digital Evidence (3 rd ed.). Upper Saddle River, NJ: Carolina Academic Press. ISBN: 9781531009618. Chapters 8-12 of the reading assignment Set 1 1. If someone said to you, “The law on the searching digital devices at the US international border is crystal clear!” What questions might you ask them and with what case law would they be supported? 2. Regarding third party consent, does the Court shift the burden onto the police to determine the existence of the password/encryption by either 1) asking about it or 2) configuring the software to look for it? 3. Does the scope of the search incident to arrest extend beyond the location where the accused is arrested? Why? Or why not? 4. Describe the basic elements of a search warrant 5. When is a warrant for digital evidence executed? Is it when the computer or other digital device is seized or is it when the forensic examination back at a laboratory finds the evidence? 6. Describe what “outside the box” or data in transit means and how it is regulated. 7. Following a warrantless seizure, can the police take as much time as they desire to obtain a warrant? 8. If someone were to ask you about the difference between a Pen Register and a Trap and Trace device and their respective uses, what would you tell them?

Question 1 When is a warrant for digital evidence executed? Is it when the computer or other digital device is seized or is it when the forensic examination back at a laboratory finds the evidence? There are two computer searches: (1) seize the equipment and (2) obtain the data contained in the computer equipment. The equipment that can be seized is the computer hardware and software. If the data is seized, that can include hard drives or other storage devices such as a floppy disk. In the context of warrants issued to seize computer software and hardware, the courts have often found generic descriptions of the items to be seized to be sufficient (Clancy, 2019). A warrant for digital evidence is executed when there is probable cause. A warrant can be executed when searching and seizing a computer on a scene. If the computer needs further examination, another warrant may need to be requested if there is additional incriminating evidence not covered under the first warrant. There are two principal approaches to searches involving electronic data stored on computers, if a computer is a form of a container and the data in electronic storage mere forms of documents or whether such searches for data require a "special approach" (Clancy, 2019). References Clancy, T. K. (2019). Cyber Crime and Digital Evidence: Materials and Cases (3rd ed.) Durham: Carolina Academic Press. When is a warrant for digital evidence executed? Is it when the computer or other digital device is seized or is it when the forensic examination back at a laboratory finds the evidence? Selected Answer: There are two varieties of computer searches: one is to seize the equipment, that is, the computer hardware and software; the other is to obtain the data contained in the computer equipment, including on hard drives and various storage devices, such as floppy disk. A warrant for digital evidence is executed when there is probable cause. A warrant can be executed when searching and seizing a computer on the scene, and when if the computer is take back for forensic examination another warrant may need to be requested if more incriminating evidence is found that was not in the original warrant. Question 2 Regarding third party consent, does the Court shift the burden onto the police to determine the existence of the password/encryption by either 1) asking about it or 2) configuring the software to look for it? The presence of password of password protection files is important to asses in a third party's authority to consent. By creating password protected files, the creator intends to exclude other users from files. Under such circumstances, it cannot be said for that person to agree for other users to search files. The lack of passwords to protect files from other users gives other users access to searching the computer. Courts consider the issue and attempted to analogize computers to other items that are commonly found in Fourth Amendment jurisprudence. An individuals privacy in a computer has been compared to a "locked footlocker inside the bedroom". Courts addressing the issue of third party consent in the context of computers, have examined officers' knowledge about password protection as an indication if a

computer is "locked" in a way a footlocker or breifcase would be (Clancy, 2019). Additionally, the courts consider the location of the computer within the house and other indicia of household members' access to the computer in assessing third party authority (Clancy, 2019). Third party authority to consent to search has been upheld when the computer is located in a common area and other users have access to use the computer. There has been issues if the computer is in a common area and a third party user has disclaimed access or control over the computer or accessing files. Given the case law indicating the importance of computer password protection, the common knowledge about the prevelance of password usage, and the design of EnCase or similar password bypass mechanisms, the Fourth Amendment and the reasonable inquiry rule, mandate that in consent based, warrantless computer searches, law enforcement personnel inquire or otherwise check for the presence of password protection and, if a password is present, inquire about the consenter's knowledge of that password and joint access to the computer (Clancy, 2019). References Clancy, T. K. (2019). Cyber Crime and Digital Evidence: Materials and Cases (3rd ed.) Durham: Carolina Academic Press. Regarding third party consent, does the Court shift the burden onto the police to determine the existence of the password/encryption by either 1) asking about it or 2) configuring the software to look for it? Selected Answer: Case law indicates the importance of computer password protection, the common knowledge about the prevalence of password usage, and at design of EnCase or similar password bypass mechanisms, the 4th Amendment and the reasonable inquiry rule, mandates that in consent based, warrant less computer searches, law enforcement personnel inquire or otherwise check for the presence of password protection and, if a password is present inquire about the consenter's knowledge of that password and joint access to the computer Question 3 Following a warrantless seizure, can the police take as much time as they desire to obtain a warrant? Many jurisdictions require that a search warrant be executed within a certain time period. The federal rule requires, except for tracking devices, the warrant must be executed within 14 days from the date the magistrate signed the warrant. Execution of the warrant after that specified time period is expired, the courts could find violation of the governing statutory or procedural ruled and find the warrant useless. If the warrant is invalid, the search would be considered warrantless and the standard applicable to a warrantless search and seizure would be applied (Clancy, 2019). Once it has been established, a seizure has occurred, it must be justified and reasonable. Consistent with the treatment of seizure of persons, the court has distinguished between temporary detentions, justified by articulable

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