Obtaining Admissible Evidence from Computers and Internet Service Providers
Cogar, Stephen W., The FBI Law Enforcement Bulletin
The use of personal computers in homes and businesses has flourished during the 1990s due to the advent of user-friendly operating systems and the low cost of computer equipment. The U.S. Census Bureau reports that "54 million households, or 51 percent, had one or more computers, up from 42 percent in 1998." (1) Moreover, "44 million households, or 42 percent, had at least one member who used the Internet at home in 2000."(2) People use personal computers to conduct word processing, maintain financial accounts, and play games, as well as instantly access vast amounts of information through the Internet. Most important, computers facilitate communication through e-mail, Web sites, chat rooms, and Internet phone. This transfer of information has impacted many aspects of daily life. While law enforcement officers know the importance of staying abreast of new technological trends and investigative practices, they also realize that lawfully obtaining admissible evidence from both computers and Internet service providers (ISPs) can be complicated in an ever-changing technological world. Thus, officers constantly must pay attention to new legislation and applicable investigation procedures.
Predictably, the phenomenon of unfettered access to personal computers did not go unnoticed by criminals. Law enforcement officials in the United States and abroad have learned that criminals routinely use computers to more easily manage the business aspects of their criminal enterprises. Criminals keep records of transactions, document planned crimes, and communicate with their peers via personal computers. As a result, courts now are being asked to analyze searches and seizures of computer equipment, computer peripherals, and information obtained from ISPs based on the venerable Fourth Amendment to the U.S. Constitution. Although the drafters of the Fourth Amendment may not have predicted the quantum leaps in technology that led to the computer generation, they composed the Fourth Amendment in such a way that it has proven to be exceptionally adaptable when applied to technological issues.
When analyzing cases involving searches and seizures of computers and their stored files in the workplace, the justice system has used basic Fourth Amendment concepts. The initial inquiry normally involves determining the computer owner's or user's reasonable expectation of privacy with respect to the computer or the information stored in the computer. To prove a legitimate expectation of privacy, individuals must show that their subjective expectation of privacy is one that society is prepared to accept as objectively reasonable. (3) For example, in United States v. Simons, the Fourth Circuit of the U.S. Court of Appeals held that Simons, a government employee charged with receiving and possessing child pornography on his work computer, "did not have a legitimate expectation of privacy with respect to the record or fruits of his Internet use in light of the FBIS (4) Internet policy." (5) The court permitted the employer's warrant-less search of Simon's office computer because
The policy clearly stated that FBIS would "audit, inspect, and/or monitor employees use of the Internet, including all file transfers, all Web sites visited, and all e-mail messages as deemed appropriate." This policy placed employees on notice that they could not reasonably expect that their Internet activity would be private. Therefore, regardless of whether Simons subjectively believed that the files he transferred from the Internet were private, such belief was not objectively reasonable after FBIS notified him that it would be overseeing his Internet use. (6)
The possibility does exist, however, for an employee to have or develop a legitimate expectation of privacy with computer files in the work place. Therefore, a police officer must inquire if an employer has authority to give valid consent to search or seize an employee's computer or computer files. …