Law Discussion responses

In light of this century’s development of modern electronic devices, do you think that the Fourth Amendment should be modified in terms of the search & seizure of electronic devices? If so, discuss what modifications you think should be made and why? If not, discuss why you do not think modifications need to be made and why. Are there any exceptions to the Fourth Amendment that may also be applicable? Be sure to use resources to substantiate your thoughts.

After posting your original post, be sure to engage in discussion with your peers

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First Discussion Post that needs a response (A Bell):

There definitely needs to be an update to the fourth amendment. As it stands, for law enforcement to search digital data, it requires a warrant signed by a judge (Sacharoff, 2020). Problems can arise when these ‘blanket’ warrants are issued (Sacharoff, 2020). With ‘normal’ warrants, judges must provide somewhat specific on what can be legally searched (Sacharoff, 2020). However, with digital searches, many of these judges sign the warrant with only the ‘device’ listed as the area to be searched (Sacharoff, 2020). My issue with this is that it is too broad. I not only have personal information stored in my phone, but I also have the information of others’ as well. The same goes for people I work with. This can be especially true for my colleagues who are deployed (with powers of attorney). If a court wants to search a digital device, the warrants should be narrowed down to specific portions. For example, if law enforcement needs to check through text messages, then the warrant should be written for only the messages. There’s no reason for law enforcement to peruse through other portions of the device. I do concede that the ‘in plain view’ should also be allowed for digital devices. This law applies when an object is seized while in the ‘plain view’ of an officer and deemed to be contraband (Plain view, n.d.) If there is a warrant for a device and there is an app or information that pertains to the case in ‘plain view’ then it should be seized and included as evidence. Also changes to the inventories of law enforcement should be made. As it stands now, many courts just label the device and corresponding serial number (Sacharoff, 2020). A more protective way of inventory would be labeling the data retrieved from the device as well as the device (Sacharoff, 2020). By providing this information, it gives more security for individuals. It could also aid in securing the data, so that there is accountability for it, if there was a loss of sensitive information. The fourth amendment needs to be properly amended to include data storage issues such as the ‘cloud’. According to the American Bar association, data stored in the cloud that does not include communications is basically free game for prosecutors (Arango, 2019). I reasonably expect my data stored on the cloud to be protected. The fourth amendment should be updated to include these protections and require a specific warrant to view this information.

Arango, S. (2019, June 13). The third-party doctrine in the wake of a ‘seismic shift’. Retrieved from American Bar Association: https://www.americanbar.org/groups/litigation/comm…

Plain view. (n.d.). Retrieved from Cornell Law School: https://www.law.cornell.edu/constitution-conan/ame…

Sacharoff, L. (2020). The fourth amendment inventory as a check on digital searches. Retrieved from Iowa Law Review: https://ilr.law.uiowa.edu/print/volume-105-issue-4/the-fourth-amendment-inventory-as-a-check-on-digital-searches/#:~:text=Today%2C%20the%20Fourth%20Amendment%20permits,search%20every%20nook%20and%20cranny.

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Second Discussion Post that needs a response (Gio P):

Upon further investigation of the 4th amendment in relation to search and seizure of digital assets, I had discovered a potential issue with the authorization of a third party to access an electronic device on a premises. This allows for police to have access to a premises and an electronic device such as a computer by being given access by a third party who has granted access due to having mutual use of the property by joint access or control of most purposes. The issue with a third party granting access to law enforcement to access a device is if an office or agent suspects or has knowledge of passcode protected files on the device, consent by the third party is invalid due to high expectations of privacy. However, if a law enforcement officer reasonably believes the third party has apparent authority access to the computer within a given location then the agent can request valid consent to search and seize the device. On the contrary, if the suspected third party disclaims to have any access to said computer then a request for consent to search is considered invalid. The issue with third party consent is if a third party were to hand over a pin code or passcode to an electronic device, there is a common assumption that the third party had common access, if the examiners has any reasonable doubt of mutual access, further investigation may be required to verify access.

Lonardo, Thomas; White, Doug; Martland, Tricia P.; and Rea, Alan (2011) Legal Issues Regarding Digital Forensic Examiners Third Party Consent to Search. Retrieved: https://commons.erau.edu/cgi/viewcontent.cgi?article=1105&context=jdfsl

Requirements: 150 – 250 words each post / 1 reference each