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Privacy and the Law

Tue, 01 Dec 2009 08:28PM

Category: Miscellaneous

Written by Sarah | With 2 comments

I am currently reading Digital Evidence and Computer Crime by Eoghan Casey and chapter three - "Technology and Law" has some really interesting cases which really make you think about what is 'privacy'. The main act that gives a right to privacy in the US is the Constitution’s 4th Amendment which prohibits unreasonable searches and seizures. The couple of cases below (from the book) are all based in the US that affected the law and the 4th Amendment. I know this doesn’t apply in the UK but it makes for an interesting debate!

Katz versus United States (1967) resulted in a decision to extend the 4th Amendment to protect public telephone booths (the ones that are fully enclosed) from being wiretapped without a warrant. Katz was convicted of illegal gambling by placing bets on the phone using a phone booth in California to Miami and Boston. The FBI had recorded his conversations by wiretapping the outside of the phone, claiming a warrant was unnecessary because “there was no search or seizure since there had been no physical entrance into the area occupied by Katz – the phone booth.” However the Supreme Court argued that people are entitled to aural privacy, since when the door is closed it is assumed they will not be heard by the outside world.

California versus Greenwood (1988) confirmed that once someone puts something out on the street, it is publically available and the 4th Amendment does not cover any rights to privacy of those items. In this particular case it was rubbish bags that Greenwood has specifically put out to be taken away by the garbage collectors. The police had received a tipoff that Greenwood was using drugs, and asked the collectors to give them his rubbish. They found evidence of drug use which allowed the police to gain a warrant, which in turn found drugs in his house. Whilst Greenwoods lawyers tried to argue this was an unconstitutional search of the rubbish, the court decided that although he may have had a personal expectation of privacy with the bags, it was not reasonable as he had specifically put the bags out for a third party to dispose of.

Finally, Kyllo versus United States (2001) raised questions when thermal imaging was conducted on Kyllo’s house when suspected of growing marijuana. From this, a warrant was gained and the police found a marijuana growing operation. The prosecution argued no warrant was needed for the thermal search since Kyllo did not try and hide the heat coming from his house and it was not a reasonable expectation that this should be private. Also, the imagers did not go through the walls, so revealed nothing about the inside of his house. However the Court decided that this was a ‘search’ within the meaning of the 4th Amendment and consequently did require a warrant. Kyllos conviction was reversed.

This kind of thing really irks me!! It’s completely clear that he is a criminal, but because of a law which can be perceived a number of ways he gets off free! It shows how utterly important it is for any kind of investigator to know the laws of the country and what can and can’t be done. How upsetting would it be to have a perfect case overturned due to some tiny legal error?

image of handcuffs

Tagged with: law, privacy, cases

Comments

It is infuriating that people get away with crimes due to legal technicalities, but sadly it's a fair price to pay to insure that the police force do use entirely legal means to do their investigations (and documented as such).  However I do also think it's ridiculous that someone who is clearly guilty of a crime can have it overlooked because of an irregularity.  I blame lawyers.
Jason
Wed, 02 Dec 2009 09:46AM
To be honest, its *more* important how its done than catching a single relatively minor criminal.

The way in which the police must gather evidence must be lawful, otherwise where is the line between criminal activity and proceeding with law is badly blurred. The police force as an entity is not innocent, as with anything, the stupid and corrupt are everywhere.

I abandoned the whole 'If you have nothing to hide then you have nothing to fear' mentality along time ago. When I was arrested. To this day, I am still being penalised for being innocent.

Here is some thought candy:

a ) Katz - What if he was innocent, shared over some bank details with his banker, and a police officer listens in, and notes down his personal banking details. Even if members of the police department don't actively use that data - they may leave it on a train somewhere....

b ) Greenwood - Fair enough. I think we can all agree with that.

c ) Kyllo. First of all, he could be an alternative medicine dealer, which requires some tropical plants to be grown in the UK. Therefore might need additional heat and light in his house. He may also be eccentric like me and have all manner of odd going on his place all the time ( legit ). Physics experiments, R&D, etc.. 

Anyway Police get warrant even if he's innocent. Kyll could have been having sex with his partner when they came - and obviously wouldn't open the door. And the police wouldn't allow him time to "destroy the evidence". I don't like the idea of my place being searched for circumstantial inconclusive evidence like that.

What if the police thought I was part of a paedophile ring or something, realised I had a webserver running in my flat, then used remote monitor imaging to try to catch me (which would be funny, since I run a headless server... but anyway).

They could obtain all manner of private and legal data off me. Bank details, personal details, professional details. Hell, for all they know I could be a member of MI5 working on government secrets over a really secure VPN from home.

All secrets and things hidden from the law aren't criminal.

Now, I don't think the criminals should go free if they've been caught, but police precedent should be changed. And if they ignore the precedent, then the police force gets penalised in increasing amounts - THEN to the point of eventually just not charging the criminals.

I'm not a conspiracy nut but if we let the police do this sort of thing, we do get subversive regimes taking advantage. Case-in-point, the Nazi party wiretapping phones in Germany. If they heard something they didn't like - that person disappeared. Frequently if they were innocent.
Mark Jones
Wed, 02 Dec 2009 09:30PM

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