Computer forensics is the process through which criminal investigators gather and analyze digital information to be used as evidence in a court of law (Maras, 2015). Various rules regulate information gathered through such procedures based on the nature of the information. It is evident by various cases in courts whose evidence were acquired through such procedure have significantly helped in providing clarification on how rules govern evidence obtained digitally. The fourth amendment of the United States’ constitution guarantees every citizen security to their rights and protects their property from unwarranted search and seizures.
Search and seizure is an important component of computer forensics. Criminal investigators most of the times have to acquire digital materials owned by the suspect that they think might be helpful to them in obtaining appropriate evidence they need. However, the fourth amendment’s protects citizens from unreasonable searches and seizures. The amendment only allows search and seizures when there is a probable cause. It must be supported by affirmation and in particular, vivid description of the places to be searched and the materials to be seized must be stated. This part of fourth Amendment was developed when it was observed that criminal investigator abused the write of assistance, which was of general search warrant during the American Revolution. Before the amendment, the British colonial authorities engaged in over intrusive searches and seizure. The colonial authorities mischievous by the use of general warrants, which gave law enforcement officers right to enter and search any building they suspected. Law makers felt that it was reasonable to have all warrants authorized by the judiciary and there must be probable cause and also should be limited to specific areas provided by criminal investigators ( Clancy, 2014).
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The amendment mandates magistrate as an unbiased mediator between the suspect and the criminal investigators. Magistrates have the power to issue a search and seizure warrant when they are convinced that there is probable cause and feel that the evidence of the case before them might be in the regions specified by the criminal investigators. The magistrate then prepares an affidavit explaining the grounds of the probable cause and indicates areas to be searched and materials to be seized. In the event that the polices searches beyond the areas explained in the affidavit, then no matter how strong the evidence might look, it is suppressed ( Clancy, 2014) . Suppression of evidence is therefore done only when it has been determined that the police did not effectively adhere to the fourth amendment. In computer forensics therefore, if criminal investigators feel that they would want to search and seize a compute or any other device and analyze later, then the statement of probable cause should indicate the impossibility or challenges of analyzing the device in the scene calling for the need to seize it and take it out of the scene.
Other than obtaining warrant for search and seizure fourth amendment requires that criminal investigators ought to notify the suspect of their search warrant. In normal practice, criminal investigators make such notifications and the time they have gone to conduct such searches. Contemporarily, the amended Title 18 Section 3103a allows for delayed notifications for up to a period of 90 days ( Clancy, 2014) . Criminal investigators however have to obtain authority for delayed notifications in which they must probably show why such delay may be necessary. Most of the times, they delay may be necessary when immediate notification may impose a threat to life, result into risk of flight or may result in tampering with evidence.
The Federal Rule of Criminal Procedure 41(c) (1) demands that the police should serve the want within ten days after they have acquired it from the court. However, the laws remain silent into how long the police may hold a device once they have seized it. A common practice is that such analysis should be done as fast as possible especially if they are necessary for business activities.
In computer forensics, search warrants may not be required when the suspect gives consent that his computers may be searched. Search warrant may also not be necessary when a third party including the spouse, a parent or employer of the suspect gives consent to search so long as that third party have equal rights and control to the property. It is however very important for criminal investigators to be extremely careful when relying on such consent as the basis for their search.
In the recent past, the law makers have been forced to respond to the changing technological environment. In this sense, the law makers have enacted several statutes that have direct impact to computer forensics. In 1986 for example, the congress enacted Electronic Communication Privacy Act which provides framework on how to access, disclose and protect privacy of electronic communications (Ruan, 2013). This act wok majorly to prevent unauthorized interception of and unlawful disclosure of electronic communication. In addition, it is legally wrong for criminal investigators to acquire disclosure of electronic information from service providers without appropriately following procedures.
According to Ruan (2013), Electronic Communication Privacy Act further affects computer forensic in that, it prohibits unlawful cases to stored information. For example, the act outlaws investigations into RAMS, disk drives or in temporary storage areas such as the servers. There is however certain exceptions allowed by the Electronic Communication Privacy Act under which criminal investigators may be allowed to search, intercept and disclose electronic communications. For instance, in a situation where the individual lacks an expectation of privacy, criminal investigators do not necessarily need warrants to listen.
While Electronic Communication Privacy Act governs government agencies access to stored computer information, the Wiretap Statute governs direct surveillance or real time interception of electronic communication wiretap statute requires special authorization from the executive. Attorney general and designated Department of Justice officials are the ones authorized to approve wiretaps. Unlike the normal search warrant, magistrates do not have jurisdiction to issue wiretaps (Chandra, 2009). The application for wiretap should contain detailed information about the circumstances relied on to support the belief that interception order should be given. The issuing authority should prove that there is probable cause to believe that the issue regarding a particular offense may be obtained through interception
The Fourth Amendment demands that searches and reasonable should be reasonable. Whether a search is reasonable or not depends on balancing the need of the search and the extent of intrusion. While conducting computer forensics therefore, it is extremely important that the investigators should strictly adhere to the fourth amendment laws or risk having evidence gathered suppressed.
References
Chandra, P. (2009). Wireless security . Amsterdam: Newnes/Elsevier
Clancy, T. K. (2014). The Fourth Amendment: Its history and interpretation . Carolina: Carolina Academic Press,
Maras, M.-H. (2015). Computer forensics: Cybercriminals, laws, and evidence, second edition . Burlington, MA: Jones & Bartlett Learning.
Ruan, K. (2013). Cybercrime and cloud forensics: Applications for investigation processes . Hershey, PA: Information Science Reference.
