Privacy and the Law

I am currently reading Digital Evidence and Computer Crime by Eoghan Casey and chapter three – “Technology and Law” has some really interesting cases which really make you think about what is ‘privacy’. The main act that gives a right to privacy in the US is the Constitution’s 4th Amendment which prohibits unreasonable searches and seizures. The couple of cases below (from the book) are all based in the US that affected the law and the 4th Amendment. I know this doesn’t apply in the UK but it makes for an interesting debate!

Katz versus United States (1967) resulted in a decision to extend the 4th Amendment to protect public telephone booths (the ones that are fully enclosed) from being wiretapped without a warrant. Katz was convicted of illegal gambling by placing bets on the phone using a phone booth in California to Miami and Boston. The FBI had recorded his conversations by wiretapping the outside of the phone, claiming a warrant was unnecessary because “there was no search or seizure since there had been no physical entrance into the area occupied by Katz – the phone booth.” However the Supreme Court argued that people are entitled to aural privacy, since when the door is closed it is assumed they will not be heard by the outside world.

California versus Greenwood (1988) confirmed that once someone puts something out on the street, it is publically available and the 4th Amendment does not cover any rights to privacy of those items. In this particular case it was rubbish bags that Greenwood has specifically put out to be taken away by the garbage collectors. The police had received a tipoff that Greenwood was using drugs, and asked the collectors to give them his rubbish. They found evidence of drug use which allowed the police to gain a warrant, which in turn found drugs in his house. Whilst Greenwoods lawyers tried to argue this was an unconstitutional search of the rubbish, the court decided that although he may have had a personal expectation of privacy with the bags, it was not reasonable as he had specifically put the bags out for a third party to dispose of.

Finally, Kyllo versus United States (2001) raised questions when thermal imaging was conducted on Kyllo’s house when suspected of growing marijuana. From this, a warrant was gained and the police found a marijuana growing operation. The prosecution argued no warrant was needed for the thermal search since Kyllo did not try and hide the heat coming from his house and it was not a reasonable expectation that this should be private. Also, the imagers did not go through the walls, so revealed nothing about the inside of his house. However the Court decided that this was a ‘search’ within the meaning of the 4th Amendment and consequently did require a warrant. Kyllos conviction was reversed.

This kind of thing really irks me!! It’s completely clear that he is a criminal, but because of a law which can be perceived a number of ways he gets off free! It shows how utterly important it is for any kind of investigator to know the laws of the country and what can and can’t be done. How upsetting would it be to have a perfect case overturned due to some tiny legal error?

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