Law Enforcement, Legal Trends and the Internet
Scuro, Joseph E., Jr., Law & Order
Tt is undeniable that technological advancements, scientific developments, and computer enhanced equipment in recent years has had a great impact on law enforcement activities and the manner in which the daily business of a law enforcement agency is conducted.
It has become imperative that the law enforcement community keep current with rapid scientific advancements that have become tools for law enforcement activity. Meeting that objective can often present legal and constitutional questions requiring resolution before any practical solutions can be reached and implemented for law enforcement purposes. Maintaining the balance between technology, constitutional rights protection, and the primary function of law enforcement to protect and serve its citizens can be difficult.
The Internet has demonstrated that it can be used as a highly effective aid in researching legal issues and pending legislative matters. It can greatly assist in the discovery of potential evidence for use in criminal prosecutions, and as an investigative aid can provide assistance in the defense of civil litigation cases filed in state or federal courts, seeking monetary damages and liability against public entities, police departments and individual law enforcement officers. Inevitably, the Internet has resulted in both legal decisions and legislative proposals interpreting its use by law enforcement personnel.
Initially, the response to Internet use for law enforcement purposes was by the House of Representatives in H.R. 2215. This required the Federal Bureau of Investigation (FBI) to provide details on its use of the Internet for surveillance purposes. Previously known as Carnivore, the electronic surveillance system renamed DCS 1000 would be the subject of scrutiny by Congress and required to comply with specific guidelines and reporting mandates.
The primary issue of H.R. 2215 was accountability for the use of the Internet by the FBI as an electronic surveillance device. It would require the attorney general and FBI director to provide Congress with detailed reports of surveillance use to be compiled and submitted at the end of each fiscal year.
In providing these reports, the detail of usage would include the number of times the Internet was used for: surveillance; the identity of the approving official; the criteria for its use and employment, statutory, court and other authority for its use; the number of orders, warrant and subpoenas applied for and approved; specific offenses involved; a description of the review and application process; and the nature of the disclosure of any information obtained through electronic Internet surveillance.
The first response to this pending legislative proposal came after September 11, 2001, when the Justice Department enacted new rules and guidelines to permit the FBI greater access to the Internet and Web sites for purposes of discovering terrorist activities worldwide. In order to facilitate the investigation of suspected terrorist activities, these new rules permit the FBI to be proactive in the use and development of suspected terrorism cases by drawing on publicly available information contained on commercial data systems including the Internet.
Effective May 30, 2002, these new DOJ rules contain specific reference to the manner in which the Internet can be used as a device to combat terrorism. Section VI-A of the rules permits the FBI to operate and take part in the identification, tracking and use as general topical research any information systems "for the purpose of identifying and locating terrorists.... and responding to terrorist risks and threats."
Section VI.B of the rules permits and authorizes the FBI to conduct online search activity, access online sites and forums, and to surf the Internet using this commercial electronic source as a data-mining resource. It must be noted that these new DOJ rules authorize the FBI to conduct Internet investigations online and search activity with the same legal authority as that of the general public having access to these online information sites. …