Week 8 - Privacy & Law Enforcement

US Constitution

- Founding document

- Constitutes govt structure & empowers government

- Constrains what the govt can do (individual liberties and rights)

US Constitution Fourth Amendment

- "The rights of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated

- and no warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized"

Search warrants

- Law enforcement officers have to get from judge (magistrate)

- Judges sworn to neutrality - favour neither law enforcement nor individual subjects of warrant

- Judge has to consider individual's fourth amendment rights and law enforcement needs

Probable cause

"information sufficient to warrant a prudent person's beleief...that evidence of a crime or contraband would be found in a search"

- Has to have particularity -> specify place to be searched and evidence to be found

Affidavit

- Police write facts supporting probable cause in affidavit

- Officer's legally binding oath or affirmation (swear that evidence retrived is true)

- Under penalty of the crime is perjury

Reasonable Expectation of Privacy (REOP) requires?

- Subjective EOP -> may be shown by trying to exclude others from a space or conceal an item and

- Objective EOP -> a "reasonable person" would recognise EOP as legitimate

Example of REOP

- Warrant required for electronic survillance of communication taking place outside the home as there is a REOP

- Subject enters wiretapped booth without knowing and got investigated for illegal betting (he had REOP therefore evidence collected is not counted)

Exceptions to warrant requirement

- Emergency -> when exigencies of the situation make the need compelling, probable cause & insufficient time for warrant

- Waived through consent -> e.g. officer asks homeowner for persmission to search house and homeowner complies, means that their 4A rights was waived. Officer also had no legal requirement to inform homeowner of right to refuse

- When law enforcement stops and individual briefly or arrests an individual

4A rights of Noncitizens & Citizens

- Non-US citizens outside of the USA don't have 4A rights

- Non-US citizens in US have 4A rights

- US citizens outside of US have 4A rights

Noncitizens communicating with citizens

- Handled by Foreign Intelliegence Surveillance Act courts

Exclusionary rule: How 4A enforced

Evidence illegally collected (violates 4A rights) cannot be presented in court against accused even if leads to acquittal

Exlcusionary rule rationale

- "If the government becomes a lawbreaker, it breeds contempt of law"

- Potential deterrent effect on police misconduct

Exclusionart rule optimal?

- Court nalances factors case-by-case

- Disciplinary action for law enforcement

- Compensation for person illegally searched

Warrant to use tech: REOP?

- If subject has REOP, warrant is required

- In determining if theres REOP, have to ask how aware public is of new privacy-invading tech

Thermal imaging case

- Officer uncovered individual growing marijuana indoors using high-intensity lamps through thermal imaging

Warrant to use tech? Thermal imaging investigation

- The officers used the thermal imaging device from a public street without a warrant, then judge granted warrant based on the detected heat, and police searched the accused house and found marijuana plants

- Thermal imaging was new & not publicly available

- Warrant was required to use the thermal imaging cause it was not in general public use. Before thermal imaging, gathering the evidence that the person was growing marijuana also required physical intrusion

Factors favouring a REOP

- Tech is not in general public use

- Can be used remotely from a public place

- Enables surveillance unobstrusively

- Can enhance human capabilities (what can be detected, amount of data collected & duration of observation, precision of data & amount recorded, ability to search & analyse data)

Warrant to use tech: Drones

- No rulings yet on drone surveillance

- Rulings that no 4A protection against aerial surveillance with older technologies are relevant

- Drone development may be different in legally relevant ways

SG search law

- No constitutional provision about searches

- Provision in Criminal Procedure Code

- Few constraints on searches

SG: Police searches

1. Written order to produce item, document or data

2. Warrant

3. Warrantless searches in arrestable case

Arrestable offence

Arrest: "Use of legal authority to deprive a person of freedom of movement"

Arrestable offence: Police can arrest without warrant

SG: Search warrant

1. A court may issue a search warrant if - the court has reason to believe that a person who has been or may be issued [a written] order... would not produce any document or other thing

- it is not known who possesse the document ot thing; or

- court considers that a general/specific search/inspection will serve purposes of justice or of any investigation

SG: Warrantless search in arrestable case

- police officer investigating arrestable offence can, without a search warrant, search for a document or other thing (considered necessary) in any place IF

- ...has reason to believe that a person who has been/may be issued with a [written] order will not or is unlikely to produce [it] or give access [to it]

- ...has reason to believe that [it]... is likely to believe ot be removed; or

- it is not known who possesses [it]

Privacy advocates adopt a prescriptive approach

- Nations with strong protections tend to advicate universal human rights (everyone has inherent privacy rights as human beings - even if legal system recognise/never recognise the rights)

Privacy adovates dominate the global conversation

- Some prominent jurisdictions have strong privacy potections that constrain law enforcement

- Others lack strong protections but not aggressively defending their approaches

Litigation about privacy rights in some nations

- Nations with strong privacy protections -> law enforcement make elaborate adaptions to adhere to privacy protections

- Nation with fewer protections -> law enforcement has flexibility/discretion to act with fewer legal constraints, little basis for such lawsuits

E2EE: End-to-end encryption

• A communication method that uses encryption…

• …to secue data as it is transferred from “end to end” - from end user to end user - from sender to receiver(s)

• …so that thirs parties cannot access it

Purpose: To enhance user privacy, data security & user trust

E2EE: Simplified process:

• Message is encrypted on sender’s device

  • Travels through servers without being decrypted by third parties

• Message is decrypted only on the recipient’s device

E2EE in historical context

• Law enforcement could access the content of users; private communication, with the help of service providers:

  • Landline telephone: wiretap phone line

  • Mobile service providers, ISPs or online platforms

• If platforms have E2EE: impossible to cooperate with authorities’ orders

• Many governments have NOT restricted tech that enables E2EE

Encryption but not E2EE

• Encryption used to enhance privacy & security

• E2E when end user controls the key (select whom to share key by sending them a message)

• E2EE not more common doe to:

  • Key management being complex & resource intensive

  • Limits functionality

e.g. VPN, Cloud storage, Web browsing

Access mandates: Backdoors

• Govt may require backdoor → would likely restrict E2EE developement

UK Act (2003)

• Empowers regulators to require platforms to identify child sex exploitation material “whether communicated publicly or privately”

  • Might require backdoor → enforce when technically feasible