Search and Seizure Law for Digital Evidence

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Image retrieved from Nassr Al-Saifi’s Blog: Web Trends and Culture

When a crime occurs online, how exactly does law enforcement agencies handle the evidence since it is digital rather than physical? Well the answer is actually quite simple. Even though it is not a physical crime scene, law enforcement still follow search and seizure laws when collecting digital evidence. Unfortunately, according to Taylor et al. (2015), “much search and seizure law has failed to keep up with the changes brought about by increases in digital crimes and the increasing need to collect digital evidence” (240). Therefore like obtaining any evidence whether it is digital or physical, law enforcement must obtain it lawfully.

In order to obtain evidence lawfully, law enforcement must conduct searches with warrants, searches without warrants, stop and frisks, consent searches, exigent circumstances, search incident to arrest, plain view, and searchers by private citizens. An officer must have probable cause in order to obtain a search warrant from the magistrate’s office. Therefore the officer must “particularly describe the place to be searched and the evidence to be seized” (Taylor et al., p. 241, 2015). Though it seems strange searches can also take place without having a search warrant present. As mentioned briefly warrantless searches consist of stop and frisk, consent, plain view, and etc. Consent searches are the most common search method when looking for digital evidence without a warrant. Though when a person withdraws consent the search must stop and law enforcement must obtain a search warrant to continue with the search lawfully. These ways for obtaining evidence lawfully does not only pertain to physical evidence from crime scenes, but they also pertain to digital evidence from cybercrimes.

Cybercrimes are increasing rapidly and it is important for law enforcement to search and seize digital evidence lawfully. According to Forensic Magazine, an article written by Barbara, J (2013), states that “when a computer is going to be seized, the investigator would clearly explain in the supporting affidavit that after its seizure and removal from the scene, it is going to be searched for evidence.” There is not much difference between searching for both physical and digital evidence. Search and seizure laws have developed more prominently due to Congress and the court system. Due to the increase of criminal activity that involves electronic communication, these new laws have “built upon past concepts rather than attempting comprehensively to address the rapidly changing world of digital communication” (Taylor et al., p. 245, 2015). Some statutes that have been created by Congress and the courts include, the Pen/Trap Statute, Wiretap Statute, Electronic Communications Privacy Act, and USA PATRIOT Act. These acts and many others were created to help assist law enforcement to obtain and seize evidence that are related to digital crimes. Most laws created had dual functions “besides finding evidence of digital crime, but the laws have been adapted to include such actions by law enforcement” (Taylor et al., p. 246, 2015). Collecting digital evidence might be a little harder than collecting physical evidence, but law enforcement and the federal government making progress in countering cybercrime.

 

References:

Barbara, J. (2013, October 29). Executing a warrant for digital evidence. Forensic Magazine. Retrieved from http://www.forensicmag.com/articles/2013/10/executing-warrant-digital-evidence

 

Taylor, R., Fritsch, E., & Liederbach, J. (2015). Digital laws and legislation. In Digital crime and digital terrorism (Third e., pp. 240-256). Upper Saddle River, New Jersey: Pearson.

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