Kenji L Logie

CISC 2820W

Long Paper 1

Hackers: Law Enforcement’s New Option
Before discussing how hackers have cracked the fourth amendment, we must define the term hacker and state the interpretation of the fourth amendment. A hacker is defined by

Ethics in Information Technology broadly as someone who, “test the limitations of
information systems out of intellectual curiosity-to see whether they can gain access and how far they can go.”1 The fourth amendment is summarized by findlaw.com as “The right 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.”2 With these terms defined the moral question must be stated and the author’s view on the topic clearly defined. It is the author view that the moral dilemma in the case of United States Of America V. William

Adderson Jarrett is; does a hacker have the right to subvert a person’s 4th amendment
rights by conducting a private, but illegal search and seizure of a private individual’s computer data, and handing over evidence to law enforcement for the purpose of criminal conviction. The author believes that it is acceptable to obtain information in this way, to catch criminals whose actions can be classified as a threat to society. The author however does not believe law enforcement should actively or passively encourage this behavior.

1

Reynolds, George W. Ethics In Information Technology. Boston: Course Technology, 2010.

2

FindLaw. January 6, 1996. http://caselaw.lp.findlaw.com/data/constitution/amendment04/ (accessed November 11, 2011). Page 1 of 6

Kenji L Logie

CISC 2820W

Long Paper 1

The 4th amendment has already been defined as stated above, however there are particular phrases, and the distinction between a private, and a government search and seizure which must be explicitly stated. The 4th amendment as it relates to government search and seizure states that a private resident can't be search without a signed warrant from a judge, after satisfying the requirement of reasonable suspicion, clearly stating what are being sort, where it is located and the period of time over which this search can occur.3 In contrast a private search does not need a warrant, and in most cases is illegal, however it is only inadmissible in court if law enforcement used or requested the person to act as their agent; then a search warrant would be required since they are acting in the capacity of an agent.4

A hacker although generally defined as stated above, has to be broken down into three categories to fully grasp how they are able to exploit a loop hole in the 4th amendment, which was conceived to protect society from its government. The first and most common type of hacker is known as a white hat hacker. A white hat hacker is defined as someone who “oppose[s] doing damage to systems, stealing data, or interrupting service to a Web site.”5 The second category and most deadly type of hacker are known as a black hat hacker. A black hat hacker is defined as a person who breaks into a computer system with

3

Clarkson, Kenneth W., and Roger LeRoy Miller. Business Law I. Mason: Cengage Learning, 2011. Freeman, Edward H. "Computer Hackers and Search and Seizure: United States V. Jarrett." Information

4

Systems Security 16.4 (2007): 239-243. Academic Search Complete. Web. 11 Nov. 2011.
5

IBID

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Kenji L Logie

CISC 2820W

Long Paper 1

the purpose of inflicting damage or stealing data.6 The third and most difficult type of hacker to define is a grey hat hacker. A grey hat hacker is defined as a skilled hacker who sometimes acts for offensive purpose, sometimes in good will, and sometimes for defensive purpose, however they usually do not hack for personal gain nor has malicious intentions.7 With each type of hacker clearly defined, the only area left for examination is how a hacker gains access to a computer or network. A hacker gains access to your system in the following ways: phishing, Trojans, and social engineering.8 By obtaining access to your system they are free to observe and gather as much information from a system as they deem necessary, and in the case about to be discussed the detriment of the defendant.

The case which defines the moral issue of hackers subverting the fourth amendment would be The United States V. Jarrett. Jarrett during his trial argued the evidence of his possession of child pornography obtained from his computer should be suppressed, since it was obtained through an illegal search of his computer by a government agent. The trial judge agreed that the government had obtained the evidence through a government agent; however the 4th Circuit United States Court of Appeal overturned the decision and established precedence for future matters. The “Unknownuser” used a Trojan virus to infiltrate Jarrett’s personal computer and retrieved the information, which when turned over to law enforcement was used as the requirement for reasonable suspicion to obtain a

6

Reynolds, George W. Ethics In Information Technology. Boston: Course Technology, 2010.

7

US Legal. US Legal Definitions. 2011. http://definitions.uslegal.com/g/grey-hat-hacker/ (accessed November 11, 2011).
8

Reynolds, George W. Ethics In Information Technology. Boston: Course Technology, 2010.

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Kenji L Logie

CISC 2820W

Long Paper 1

warrant for his arrest.9 The appellate court however later ruled although the government’s actions were close to the line of infringing an individual’s 4th amendment rights, it acted within the constraints of the law since the Unknownuser had contact with law enforcements prior to their investigation in to the allegations, and acted on his own.10 The court however frowned upon law enforcements lack of initiative to ask the Unknownuser to stop his activities.11 The decision to suppress the evidence was over turned based on following criteria: Did the Government know of and acquiesced in the private search; and did the private individual intend to assist law enforcement or had some other independent motivation.12 Based on this test the government conceded the second factor however the defense was unable to prove the first which is required to create an agency relationship. The most important ruling in the case however was a thank you letter which was sent to the hacker from law enforcement can’t create an agency relationship, creating precedence for future cases.

With the criteria for agency relationship so specifically defined the writer is of the opinion it has created a dangerous loop hole in which hackers are able to act with certain assurances from law enforcement, once the request is stated vaguely or with implied meaning to obtain sensitive information which would not have been public knowledge otherwise. The greatest issue with this practice is does the Government after obtaining
9

Motz, Judge. United States Courts Opinions. July 29, 2003. http://pacer.ca4.uscourts.gov/opinion.pdf/024953.P.pdf (accessed November 11, 2011).
10 11

IBID Freeman, Edward H. "Computer Hackers and Search and Seizure: United States V. Jarrett."

Information Systems Security 16.4 (2007): 239-243. Academic Search Complete. Web. 11 Nov. 2011.
12

IBID Page 4 of 6

Kenji L Logie

CISC 2820W

Long Paper 1

information in this way come to the court with clean hands, or is it evidence from a poison tree? To this end the writer is of the opinion the government is turning a blind eye to cybercrime to catch criminals who are traditionally deemed to be an imminent threat society. With the offer of immunity from prosecution, and the scope of their search unknown, is it really save to assume that a hacker has not taken information that although done in a less violent manner may potentially be a greater threat than the criminals they help convict.

Although a hacker’s operation outside of the restrictions of the 4th amendment can be seen as dangerous if left unchecked, it would be unreasonable not to present the positive side of a white hat hackers obtaining information in this way. The mere fact that a hacker can obtain information from a personal computer without the knowledge of the user, acts both as a deterrent, and a prevention mechanism in the case of possessing child pornography; which is illegal and endangers a child physically and mentally. It also makes it harder for the defendant to suppress evidence in these cases since the criterion requires them to prove a clear relationship between the hacker and the government which may be the difference in a case’s verdict.

The writer is of the opinion as it relates to hackers they should be allowed to provide information to law enforcement, however all the data gathered while gaining access to the system must be given to law enforcement. They should also be deterred from hacking, which is defined as criminal, and reprimanded depending on the data collected while obtaining the evidence used against a given defendant. The author also concludes by not
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Kenji L Logie

CISC 2820W

Long Paper 1

observing the data in its entirety law enforcement is allowing the superior criminal to walk free. This also cultivates an environment in which cybercrime is not prosecuted once they’ve provided evidence to convict a stereo type criminal. In conclusion, I believe that a hacker’s role in prosecuting criminals is admirable and should be allowed once certain checks and balances are in place to ensure that the greater evil is not given a free pass.

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