The Computer Crime and Intellectual Property Section (CCIPS) was created as part of the U.S. Department of Justice (DOJ) as part of the effort to combat computer and intellectual property (IP) crime. Considering IP is a vital aspect of the U.S. economic engine, the CCIPS seeks to develop a strong cyber and legal infrastructure to pursue network criminals (U.S. Department of Justice, n.d.a).
The department has broad investigative powers which allow obtaining communications information from the network (ISP) and cellphone providers guided by the Stored Communications Act, 18 U.S.C. §§ 2701-12 (“SCA”). Furthermore, the agency can conduct live electronic surveillance, including or communication networks which is overseen by the Wiretap Act, 18 U.S.C. §§ 2510-22 (Jarrett, Bailie, Hagen, & Judish, 2015).
One of the biggest Constitutional concerns for electronic surveillance as well as search and seize of evidence is protected by the Fourth Amendment which limits any such activities against the private persons, property, or effects without a warrant that is issued based on probable cause and supported by affirmation. Electronic surveillance is overseen by what is known as Title III which requires any law enforcement or investigative officer or agency to submit in writing a request, approved by a U.S. attorney, to conduct electronic surveillance.
The request is extremely detailed and must state-planned form of intercepted communications, identify directly all involved persons, present reasonable cause that there is ongoing criminal activity, justify that all other reasonable measures of investigation have been tried and failed, and several other highly detailed technical information (U.S. Department of Justice, n.d.b).
However, there are evident loopholes to the system which may potentially violate Constitutional rights or principles. For example, similar to other warrant situations, exigent circumstance allows the government to forgo obtaining a warrant. Furthermore, instances of national security, conspiracy, or organized crime also allow proceeding without a warrant. Furthermore, if Title III was violated during the collection of evidence, the statutes governing electronic surveillance only grant evidence suppression remedies to the defendant in a very specific set of cases (Legal Information Institute, n.d.).
Another case of egregious violations of the law was domestic agencies such as the FBI and potentially the CCIPS using the National Security Agency (NSA) intelligence database for information on American citizens. The NSA activities which are guided by Foreign Intelligence Surveillance (FISA) collect both upward and downward electronic communications collected without a warrant. In many cases, databases have information on and including American citizens which as described earlier cannot be surveyed without a warrant (Volz & Tau, 2019). The concept of domestic criminal investigations using illegally obtained data is a direct violation of the Constitution.
The ‘cyber’ prefix which has been added to much new surveillance and investigation serves as a cover for the use of computers and ISP data for example to related suspects in regular investigations, not just hackers. For example, a controversial practice was employed in the U.S. law enforcement agencies known as “parallel construction.” Agencies with mass surveillance capabilities and permissions such as the NSA or DEA would leak evidence to other law enforcement bodies, which then reconstructed or repurposed the evidence using a lawful method, providing legitimate grounds for an arrest (Human Rights Watch, 2018).
In a digital society, data protection is unarguably a fundamental right and with the availability of personal information online, privacy in a democratic society must be available to all persons on an equal basis. In the digital age, new forms of privacy should be considered such as privacy of personal electronic communications which have grown to define modern socialization as well as privacy of personal data, ranging from addresses to credit scores and medical history which is all stored digitally.
The converging technologies result in an enormous amount of data collected by electronic devices, private firms, and public systems (i.e. security cameras) without the government even conducting any surveillance investigations. In the context of the law, legal protections for many forms of electronic communications, surveillance are often lagging rapidly developing technologies, leaving loopholes for violations of privacy by government agencies.
Unarguably it is a difficult task to balance law enforcement needs with privacy expectations and Constitutional rights, but an approach must be found. The most effective method would be through a multifaceted policy approach focused on establishing strong legal support and focusing on defensive capabilities. Cybersecurity should undertake a threat assessment that identifies critical infrastructure and methods that are being misused and establish proper defenses against these.
Furthermore, comprehensive data protection laws must be established with legal obligations by both private and government entities to protect personal data. It is necessary to underpin legislation with human rights safeguards and establish legal frameworks around cyber-enabled crime. The crimes should be interpreted and described in detail, and the law must be consistent with the national Constitution (Privacy International, n.d.).
One can argue that data will be collected in greater amounts the more digitized the world becomes, by both private and public entities. It is reasonable to suggest that the matter of law enforcement using surveillance is simply becoming a logical investigative technique. Cybercrime can only be effectively combatted using the same methods and data points that the criminals rely on. Therefore, to avoid Constitutional violations and unreasonable violations of privacy, it should be written directly into law on when and how that data can be used, setting legal frameworks for what can be defined as cybercrime, and in what cases surveillance data can be used to make arrests and prosecute in courts.
References
Jarrett, H. M., Bailie, M. W., Hagen, E., & Judish, N. (2015). Searching and seizing computers and obtaining electronic evidence in criminal investigations. Washington, D.C.: Office of Legal Education Executive Office for United States Attorneys.
Human Rights Watch. (2018). Dark side: Secret origins of evidence in US criminal cases. Web.
Legal Information Institute (n.d.). Electronic surveillance. Web.
Privacy International. (n.d.). Understanding the difference between cyber security and cyber crime. Web.
U.S. Department of Justice. (n.d.a). Computer crime and intellectual property section (CCIPS). Web.
U.S. Department of Justice. (n.d.b). 28. Electronic surveillance—Title III applications. Web.
Volz, D., & Tau, B. (2019). FBI’s use of surveillance database violated americans’ privacy rights, court found. The Wall Street Journal. Web.