So, many are aware that tech savy law enforcement officers are using web 2.0 resources to catch criminals silly enough to post images or evidence of thier crimes online. However, I recently learned that this is working in reverse as well. Defense lawyers have started searching out Facebook and Myspace pages for law enforcement officers involved in cases and using information from those pages to impeach the officers on the witness stand. I can’t post the memo I got this from, as it came from work, but I can tell you that there are several cases of this and Law Enforcement officers are being warned about this type of activity. Interesting isn’t it??
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Very interesting, Phil. I think it just goes to show how exposed our virtual identities are, and how unaware we are about the amount of personal data available. In the future, social networking websites (Facebook, MySpace), search engines (Google, Bing), and even Internet Service Providers (Comcast, Time Warner) will start facing even bigger dilemmas with the amount of personal or confidential information they have on their constituent users.
One might think that those law enforcement officers might be out-of-luck with any arguments for privacy rights in those cases. But there’s a recent article in the Wall Street Journal about the courts’ changing attitudes towards privacy rights in the workplace:
http://online.wsj.com/article/SB125859862658454923.html
Here are some interesting excerpts:
“Computers are becoming recognized as being so much a part of the ongoing personal as well as professional life of employees and everyone else that courts are more sympathetic all the time to granting greater recognition to privacy” – Floyd Abrams, a First Amendment attorney at Cahill Gordon & Reindel LLP.
In a case earlier this year in New Jersey, a worker on the brink of resigning from her job at the Loving Care Agency Inc. used a personal, password-protected Yahoo account on a work laptop to email her lawyer to hash out the details of a workplace discrimination suit she was planning to file against the agency. After the employee, Marina Stengart, left her job and filed suit, her employer extracted the emails from the hard drive of her computer laptop.
A lower court found that the emails from Ms. Stengart were company property, because the company’s internal policies had put her on sufficient notice that her emails would be viewed.
But a New Jersey appellate court disagreed, ruling in her favor in June, ordering the company to turn over the emails to Ms. Stengart and delete them from their hard drives. The court’s ruling went so far as to dissect the company’s internal policies about employee communications and decided they offered “little to suggest that an employee would not retain an expectation of privacy in such [personal] emails.”
“We reject the employer’s claimed right to rummage through and retain the employee’s emails to her attorney,” the appellate court ruling said.
Loving Care, which declined to comment, has appealed the ruling. The case is pending in the New Jersey Supreme Court.
Gentlemen:
Given that I encountered a case a few years ago that hinged upon the admissibility of information gleamed from a social networking site, I have a particular interest in this discussion. As Facebook and MySpace have become more and more popular, the number of cases involving the evidence have become more and more prevalent. There are numerous cases involving threats of school violence where the supposed attacker has posted his intentions online. See, for example, this article describing arrests made after students discussed a school shooting on a MySpace page http://www.oregonlive.com/news/index.ssf/2009/11/police_arrest_two_18-year-olds.html.
Not only is it true that law enforcement officials have been making use of social networking sites to catch criminals based on personal information on profile pages, they have also used the sites as a way of tracking users.
DISCLAIMER: For those of you who do not know me, I will be the first to admit that I am not tech-savvy. I do not know tech lingo and cannot even begin to describe how a computer really works. However, even with my limited technological ability, I find this next case particularly fascinating.
In 2007, the FBI began using a type of spyware that allowed it to trace bomb threats. During 2007, the FBI submitted an affidavit in support an application for a search warrant. I found a public copy of the affidavit at http://www.politechbot.com/docs/fbi.cipav.sanders.affidavit.071607.pdf that describes the technology. For those unfamiliar with the process of obtaining a search warrant, there is a written request submitted to the judge that is often accompanied by an affidavit written by an investigating officer.
Perhaps the most interesting part of the affidavit is contained in paragraph 7, which describes the types of information officials hoped to uncover if the judge granted the search warrant:
“As such, the property to be accessed by the CIPAV request is the portion of the activating computer that contains environmental variables and/or certain registry-type information; such as the computer’s true assigned IP address, MAC address, open communication ports, list of running programs, operating system (type, version, and serial number) internet browse and version, language encoding, registered computer name, registered company name, current logged-in user name, and Uniform Resource Locator (URL) that the target computer was previously connected to.”
For those of you with a better understanding of technology: Does spyware, such as that requested by the FBI in the affidavit, represent a real possibility for locating and catching those who make anonymous threats online? Furthermore, what are the implications of such warrants? (Given that the case for which the warrant was requested involved supposed terrorism I imagine the standard for granting the warrant would be different in cases not involving terrorism. Note: Threatened school shootings are considered terroristic threats.)
I leave you with one final and somewhat tangential thought. During the case I encountered a few years back there was a question as to whether the evidence would be admissible because it was difficult to ascertain whether the individual who created the account had actually posted the threat. Is there any way around the authentication issues? Sure, we can figure out the IP address of the computer used to make the posting, but can we ever really be sure that the post was made by the accused? Of course there were always difficulties in handwriting analysis (not exactly a sound science in case you have never encountered a handwriting expert), but aren’t the issues even greater here?
The link between an IP address and a person using it is perhaps one of the trickiest issues facing law enforcement. So much online activity can be traced to an IP address, yet the legal link between the IP address and the supposed user behind it cannot be presumed. Why? In a very basic example, someone besides the computer owner could be accessing the computer. And for many tech-savvy users, an IP address can be masked or routed through so many different servers or proxies that a large burden of proof exists to show that the IP address suspected of illegal activities is actually the same IP address that originated the activity.
Another issue with IP addresses is that for unsecured home wireless networks, any user connected to the network will show as originating from the same IP address. Say your neighbor decides to download music illegally over your unsecured wireless network. When your ISP (Internet Service Provider) shuts down your internet connection, there’s little way to show that it was someone else other than you on your wireless network.
So, while an IP address can usually lead to the initiator of an illicit action, a significant burden of proof rests with those investigating. And in the case of the spyware used by the FBI, while it can certainly aid in collecting information on those whose are not tech-savvy, it might mislead an investigation based on an incorrect assumptions about the link between a user and their IP address.