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What’s New in the Field of Criminal Law?

Photo: CourthouseAs the world changes and technology advances, the practice of law must also evolve to keep up with it.  Some of the most dynamic areas in criminal law right now involve new legislation regarding the use of technology.

At Premier Federal Criminal Defenders we are experienced in all areas of criminal law and always stay up-to-date when it comes to changes in both California and Federal laws. Let’s take a look at some of the latest developments and news stories in the field of criminal law.

IP Logs Becoming Less Reliable as a Source of Evidence

Police often use the IP addresses of cyber-criminals as a basis for securing warrants and making arrests.  But with the advent of mobile technology, IP addresses have become less static.  For example, Tor networks, which access the Internet through randomly routed computers around the world, are often used by criminals to hide their true physical location and identity.

This development means that police and prosecutors need to be aware of what an IP address can tell them, and what it can’t.  Aaron Mackey, a legal fellow at the Electronic Frontier Foundation, says that IP addresses should be treated like anonymous tips.  An IP address can help law enforcement to identify and catch a criminal, but in itself it does not constitute sufficient evidence to make an arrest or to convict.

Facebook Loses Case Against NY Court of Appeals Over Protecting Customer Privacy

Recently the NY Court of Appeals ruled that Facebook did not have the right to appeal 381 warrants that have been issued, as part of a criminal investigation involving Social Security Fraud.  Facebook argued that the warrants for digital data are more akin to subpoenas than to warrants for tangible property, and can therefore be appealed.  But the court ruled in a 5-1 decision that Facebook did not have the right to appeal in this case.  Prosecutors had originally obtained the warrants after disability claimants were reported to be seen looking healthy on Facebook.  While the court ruled against Facebook in this case, some questions remain unsettled as to just how far a social media company can go to protect customer data.

Expanded Federal Authority in Hacking Cases a Threat to the Fourth Amendment?

In recent years, the scope of federal authority to issue warrants in cases of cyber-crime have expanded, in what advocates say is a necessary evolution.  In 2015, while investigating a child pornography ring, the FBI asked a Virginia judge to sign a warrant which would grant authority to search an unlimited number of computers, anywhere in the world.  The FBI did get their warrant, but because of its broad nature, some courts have subsequently suppressed evidence that was obtained using the warrant.  Some public defenders have even gone on record saying that the actions taken by the FBI to erase such jurisdictional boundaries set a dangerous precedent.

Traditionally under United States criminal law, a warrant has two essential components:  particularity and territoriality.  That is, the warrant should be for a well-defined purpose, and apply to a well-defined jurisdiction.  But the Justice Department has argued that when it comes to cyber-crime, such stipulations are outdated.  Due to anonymizing technology such as Tor and botnets, it is virtually impossible to determine where a given computer is located for the purpose of applying for a warrant.

The issue is still unresolved, and there are good arguments on both sides of the table.  With new leadership in Washington, it remains to be seen what direction the new administration will take.  FreedomWorks economist Wayne Brough says that he hopes the policy can still be reined in, but that it may be an uphill battle if the Trump administration decides to become more pro-law-enforcement.


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